Digestoct Dec17
Digestoct Dec17
Digestoct Dec17
,
LUCKNOW
Quarterly Digest
EDITOR-IN-CHIEF
Anil Kumar Ojha
Volume: XIX Issue No.: 4
Director
EDITOR-IN-CHARGE
FINANCIAL ADVISOR
Ram Prakash Pal, Addl. Director (Finance)
ASSOCIATE
B.K. Mishra, Research Officer
ASSISTANCE
Waqar Hasan
Girish Kumar Singh
Anoop Kumar
SUBJECT INDEX
(Supreme Court)
(SUPREME COURT)
(HIGH COURT)
Sl. No. Particulars
1. Alok Sahkari Grih Nirman Samiti Ltd. Agra, v. Shia
Central Waqf Board, U.P. and others, 2017 (6) AWC
5848
2. Anjuman Islamia Muslim Orphanage v. Miuslim
Association and others, 2017 (3) ARC 851
3. Arun Kumar Dean Vs. Additional District Judge, Court
No. 4 Sultanpur & Others., 2017 (3) ARC 254
4. Babu Lal V. Smt Manju Jain andanother, 2017(3) ARC
744
5. Bharat Singh v. Additional Commissioner and others,
2017 (6) AWC 5696
6. Brijkishore Neekhara, Advocate V. Hari Prasad and
others, 2017 (6) AWC 6035 : 2017(3) ARC 755
7. Hari Krishna Srivastava V. Additional District Judge,
Allahabad and 7 others, 2017(3) ARC 844
8. Harish Chandra v. Rahul Kumar , 2017 (6) ALJ 769
9. Jahan Singh v. State of U.P. and others, 2017 (6) ALJ 25
10. Jodha Ram and another V. Pramod Kumar Gupta.,
2017(3) ARC 459
11. Kirty Prabha W/o Rajiv Kuamr Jain v. Additional
Registrar, Law cooperative Societies, U.P. and another,
2017 (35) LCD 2683
12. Manohar Lal and others v. State of U.P., 2017 (101)
ACC 570
13. Mohammad Zaid V. Ram Gopal and 7 others., 2017 (3)
ARC 773
14. Mohd. Mohsin Khan and another v. State of U.P. and
others, 2017 (6) AWC 5538
15. Narayana Prasad Saraswat v. Smt. Shaifali alias
Muniya, 2017 (6) ALJ 119
16. National Insurance Co. Ltd. V. Anusha A. Nair, 2017 ACJ
2533
17. National Insurance Co. Ltd. V. Vimla, 2017 ACJ 2695
18. National Insurance Co. Ltd. V. Vinesh, 2017 ACJ 2325
19. Neeraj Khanna V. Firm M/s. Hind Cloth House and
others., 2017 (3) ARC 403
20. Prabhakant Shukla V. Prabhat Motor Co., 2017 (6)
AWC 6029
21. Prashant Pandey V. District Magistrate, Ambedkar
Nagar and others, 2017 (6) ALJ 336
22. Rajendra Prasad V. Smt. Meena and another, 2017 (6)
AWC 5963
23. Ram Babu V. Meera Devi, 2017 ACJ 2315
24. Ram Murti Pandey V. State of U.P. and others, 2017 (6)
ALJ 82
25. Rama Kant v. Ram Raj, 2017 (6) AWC 5927
26. Sattan and others V. Deputy director of Consolidation
and Others, 2017 (35) LCD 2638
27. Shri Niwas & others v. State of U.P. & others, 2017 (6)
ALJ 464
28. Shweta Gupta V. Rahul Keshav Jadhao and another,
2017 (6) AWC 5459
29. Smt. Jaswnat Kaur v. Additional District Judge Court
No. 1, Faizabad and Ors. 2017 (6) ALJ 199
30. Smt. Kubra Khatoon and others v. Allahatala Malik
Waqf Masoom Hasan, Amroha, 2017 (6) ALJ 491
31. Smt. Sadhana v. State of U.P. and others, 2017 (6) ALJ
242
32. Smt. Shanti Devi Sahu v. State of U.P. and others, 2017
(6) ALJ 337
33. Smt. Sheela Srivastava V. Addl. Commissioner,
First/CCRA, Allahabad and others, 2017 (35) LCD 2739
34. Smt. Sushila Devi v. State of U.P. and others, 2017 (6)
AWC 5607
35. State of U.P. and others V. Pawan Kumar Sharma and
another, 2017 (6) ALJ 16
36. Surendra Kumar Ahuja v. Wazeer Chand Ahuja., 2017
(6) ALJ 515
37. Sureshwar Singh V. Saral Chauhan (Dead) and others.,
2017 (3) ARC 895
38. U.P. State Road Transport Corp. and And. V. Indra Raj
Verma and Anr. 2017 (6) ALJ 774
39. Umesh Kumar v. State of U.P. and others, 2017 (6) AWC
6096
40. Union of India Through The Supreintendent of Post
Office V. Prem Nath Malhtro., (2017 (2) ARC 198
41. United India Insurance Co. Ltd. V. Baby, 2017 ACJ
2456
42. Ved Ram @ Badela v. State of U.P., 2017 (101) ACC 453
43. Vijay Prakash Chaurasia and another V. Om Prakash
Chaurasia., 2017(3) ARC 405
Part –I (Supreme Court)
Administration of Justice:
Judgment of single Judge of High Court, to the extent against
appellants, never challenged in writ appeal – Cannot be challenged
before Supreme Court.
The judgment of the learned Single Judge insofar as it was against
the appellants, was never challenged by them by filing any writ appeal(S).
KSB Ali V. State of Andhra Pradesh 2017 (8) Supreme 1
Practice and Procedure – Plea not raised before any of the courts
below – Cannot be raised for the first time before Supreme Court
The appellant did not raise this plea in any of the Courts below and
nor invited finding of any Court on this plea. In this view of the matter,
we cannot now permit the appellant to raise this plea for the first time in
this Court. Dharampal (Dead) through LRs. V. Punjab Wakf Board
2017 (7) Supreme 156
Administrative Law:
Policy decision by State - State has power to review – Could be
withdrawn or modified at any time – Just and valid reasons – Not
open to court to examine sufficiency or adequacy of the reasons or
materials.
The policy rested on an executive decision to encourage
entrepreneur investment. It naturally includes the power of the State to
review the policy from time to time, including on considerations for the
manner in which the policy was proving beneficial or detrimental to the
larger public interest, and the State exchequer. The policy could therefore
well be withdrawn or modified at any time for just, valid and cogent
reasons. Judicial review of a policy decision, especially an economic
policy decision, shall have to be restricted to the presence of just and valid
reasons eschewing arbitrariness, so as not to fall foul of Article 14 of the
Constitution. But, in the garb of judicial review, the Court will not
examine the sufficiency or adequacy of the reasons or materials, in the
manner of an appellate authority, to substitute its own wisdom for that of
the government. That would tantamount to taking over of the executive
decision making process. State of Jammu and Kashmir V. M/s. Trikuta
Roller Flour Mills Pvt. Ltd. 2017 (6) Supreme 442
Adverse Possession:
Adverse possession – Meaning of - Cannot be set up by way of
counter claim to claim ownership because counter claim is treated as
a plaint.
This Court in Gurdwara Sahib vs. Gram Panchayat Village Sirthala & Anr.,
2014 (1) SCC 669, has held in para 8 that a plea of adverse possession cannot be
set up by the plaintiff to claim ownership over the suit property but such plea
can be raised by the defendant by way of defence in his written statement in
answer to the plaintiff's claim. We are bound by this view.
In the light of law laid down in the case of Gurdwara Sahib (supra), in our view,
the plea raised by the original appellant (defendant No.1) in his counter-claim
filed against the plaintiff wherein he sought a declaration of his ownership over
the suit land only on the plea of ―adverse possession‖ was not permissible. It is
for the reason that a counter-claim is treated as a plaint under Order 8 Rule
6A(4) of the Code. In other words, in counter-claim, the status of the defendant
is that of the plaintiff because he seeks a relief for passing decree in his favour
relating to the suit land and against the plaintiff, who is sued in counter-claim as
the defendant as provided in Rule 6-A (4) of Order 8 of the Code.
That apart, even on merits, we find that the plea of adverse possession
raised by defendant No.1 (original appellant) in his counter-claim was
wholly misconceived and untenable both on facts and in law. Dharampal
(Dead) through LRs. V. Punjab Wakf Board 2017 (7) Supreme 156
Advocates Act:
Sec. 16 – High Court having power to designate Senior Advocates –
Can depart from usual practice.
The power of designating any person as a Senior Advocate is always
vested in the Full Court either of the Supreme Court or of any High Court.
If an extraordinary situation arises requiring the Full Court of a High
Court to depart from the usual practice of designating an advocate who
has practiced in that High Court or in a court subordinate to that High
Court, it may always be open to the Full Court to so act unless the norms
expressly prohibit such a course of action.If the power is always there in
the Full Court, we do not see why an express conferment of the same by
the Rules/Guidelines is necessary. It is instances like these that bring the
system of designation of Senior Advocates into disrepute. Beyond the
above, we do not consider it necessary to say anything further as Shri P.S.
Patwalia, learned Senior Counsel appearing for the High Court of
Meghalaya has submitted, on instructions received, that the High Court
would be willing to reconsider the changes brought in by the amendments
and remedy the situation by taking appropriate measures. Ms. Indira
Jaising V. Supreme Court of India through Secretary General 2017
(7) Supreme 510
Arbitration Act
Sections 30 & 33- Arbitration Award –Validity- Arbitration award is
not to be lightly interfered with
It has been settled by a catena of judgments under the Arbitration Act,
1940, that an arbitration award is not to be lightly interfered with. So far
as the grounds for challenge are concerned, no legal error apparent on the
face of the award of misconduct in the sense of legal misconduct, i.e. that
material evidence that is vital has been ignored, is made out on the facts of
the present case, the arbitrator‘s findings can be said to be a possible one
on the facts of the case. Court find that none of these findings is ,
therefore, impeachable and that, therefore, the impugned judgment
deserves to be set aside. The Umpire‘s award is thus resuscitated by us,
and payments that have to be made under the Award shall be made by the
Insurance Company within a period of three months from the date of this
judgment. Mr. Manor Swarup, learned counsel for the appellant, states
that the Bank is no longer involved in this matter, in that, all dues to the
Bank has since been paid off. Court accepts this statement and, therefore,
direct the Insurance Company to pay the appellant his dues within a
period of three months from today. Vishnu Bhagwan Agrawal & Anr.
V. National Insurance Co. Ltd., 2017 (13) Scale 470
Sec. 31(7) (a) – Bar on award of interest if the contract does not
provide for it.
Sec. 31(7)(a) of the 1996 Act provides for payment of interest, as
under:
―Unless otherwise agreed by the parties, where and insofar as an arbitral
award is for the payment of money, the arbitral tribunal may include in the
sum for which the award is made interest, at such rate as it deems
reasonable, on the whole or any part of the money, for the whole or any
part of the period between the date on which the cause of action arose and
the date on which the award is made.‖
In this Section, a specific provision has been created, whereby if the
agreement prohibits award of interest for the pre-award period (i.e. pre-
reference and pendente lite period), the Arbitrator cannot award interest
for the said period.
The Arbitral Tribunal had determined the amount payable to the appellant
in a sum of Rs.11,13,136/- and interest of Rs.12,44,546/-. A sum of
Rs.38,82,150/- was deposited by the respondent which includes the award
amount, interest for the pre-reference period, pendente lite and post-award
interest. Sri Chittaranjan Maity V. Union of India 2017 (8) Supreme
61
Civil Procedure Code:
Sec. 11 – Res judicata – Scope of – Application under O. 22, R. 4
dismissed as not maintainable – Held, will not operate as res judicata
for subsequent application under O. 1, R. 10.
Merely because the earlier application filed by the appellant under Order
22 Rule 4 of the Code was dismissed on 09.09.2009 as not maintainable, it
will not prohibit the plaintiff from filing another application, which is
maintainable in law. There was no adjudication of the application to bring
legal representatives on record on merits by virtue of the order dated
09.09.2009. On the other hand, the earlier application filed under Order 22
Rule 4 of the Code was dismissed by the trial Court as not maintainable,
inasmuch as defendant no. 7 had died prior to the filing of the suit and that
Order 22 Rule 4 of the Code comes into the picture only when a party dies
during the pendency of the suit. The only course open to the appellant in
law was to file an application for impleadment to bring on record the legal
representatives of deceased defendant no. 7 under Order 1 Rule 10 of the
Code. Hence, the order passed by the trial Court on the application filed
under Order 22 Rule 4 of the Code, dated 09.09.2009, will not act as res-
judicata. Pankajbhai Rameshbhai Zalvadia V. Jethabhai Kalabhai
Zalavadiya (D) through LRs. 2017 (7) Supreme 727
Sec. 25; O. 32A; Rules 2,3, & 4- Family Courts Act, 1984- Sections 11,
22, 23 & 26 – Hindu Marriage Act, 1955 –Section 13- Transfer
petitions seeking transfer of matrimonial disputes –No direction can
be issued for video conferencing- Discretion has to rest with the
Family Court to be exercised after the Court arrives at a definite
conclusion that the settlement is not possible and both parties file a
joint application or each party filing his/her consent memorandum
seeking hearing by video conferencing
The ―constitutional identity‖, ―freedom of choice‖, ―dignity of a woman‖
and ―affirmative rights conferred on her by the Constitution‖ cannot be
allowed to be abrogated even for a moment. In this context, we have to
scan and appreciate the provision contained in Section 11 of the 1984 Act.
The provision, as has been stated earlier, mandates the proceedings to be
held in camera if one of the parties so desires. Equality of choice has been
conferred by the statute. That apart, Section 22 of the 1955 Act lays down
the proceedings to be held in camera and any matter in relation to any
such proceeding may not be printed or published except a judgment of the
High Court or of the Supreme Court with the previous permission of the
Court.
The language employed in Section 11 of the 1984 Act is absolutely clear.
It provides that if one of the parties desires that the proceedings should be
held in camera, the Family Court has no option but to so direct. This
Court, in exercise of its jurisdiction, cannot take away such a sanctified
right that law recognizes either for the wife or the husband. That apart, the
Family Court has the duty to make efforts for settlement. Section 23(2) of
the 1955 Act mandates for reconciliation. The language used
under Section 23(2) makes it an obligatory duty on the part of the court at
the first instance in every case where it is possible, to make every
endeavour to bring about reconciliation between the parties where it is
possible to do so consistent with the nature and circumstances of the case.
There are certain exceptions as has been enumerated in the proviso which
pertain to incurably of unsound mind or suffering from a virulent and
incurable form of leprosy or suffering from venereal disease in a
communicable form or has renounced the world by entering any religious
order or has not been heard of as being alive for a period of seven years,
etc. These are the exceptions carved out by the legislature. The Court has
to play a diligent and effective role in this regard.
The procedure of videoconferencing which is to be adopted when one
party gives consent is contrary to Section 11 of the 1984 Act. There is no
provision that the matter can be dealt with by the Family Court Judge by
taking recourse to videoconferencing. When a matter is not transferred
and settlement proceedings take place which is in the nature of
reconciliation, it will be well nigh impossible to bridge the gap. What one
party can communicate with other, if they are left alone for sometime, is
not possible in videoconferencing and if possible, it is very doubtful
whether the emotional bond can be established in a virtual meeting during
videoconferencing. Videoconferencing may create a dent in the process of
settlement.
The two-Judge Bench had referred to the decisions where the affirmative
rights meant for women have been highlighted in various judgments. We
have adverted to some of them to show the dignity of woman and her
rights and the sanctity of her choice.
The principle of exception that the larger Bench enunciated is founded on
the centripodal necessity of doing justice to the cause and not to defeat it.
In matrimonial disputes that are covered under Section 7 of the 1984 Act
where the Family Court exercises its jurisdiction, there is a statutory
protection to both the parties and conferment of power on the court with a
duty to persuade the parties to reconcile. If the proceedings are directed to
be conducted through videoconferencing, the command of the Section as
well as the spirit of the 1984 Act will be in peril and further the cause of
justice would be defeated.
A joint application should be filed before the Family Court Judge, who
shall take a decision. However, we make it clear that in a transfer petition,
no direction can be issued for video conferencing. We reiterate that the
discretion has to rest with the Family Court to be exercised after the court
arrives at a definite conclusion that the settlement is not possible and both
parties file a joint application or each party filing his/her consent
memorandum seeking hearing by videoconferencing.
Be it noted, sometimes, transfer petitions are filed seeking transfer of
cases instituted under the Protection of Women from Domestic Violence
Act, 2005 and cases registered under the IPC. As the cases under the said
Act and the IPC have not been adverted to in Krishna Veni Nagam (supra)
or in the order of reference in these cases, we do intend to advert to the
same.
In view of the aforesaid analysis, we sum up our conclusion as follows :-
(i) In view of the scheme of the 1984 Act and in particular Section 11, the
hearing of matrimonial disputes may have to be conducted in camera.
(ii) After the settlement fails and when a joint application is filed or both
the parties file their respective consent memorandum for hearing of the
case through videoconferencing before the concerned Family Court, it
may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate
having regard to the facts and circumstances of the case that
videoconferencing will sub-serve the cause of justice, it may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the
aforesaid extent. Santhini v. Vijaya Venketesh, 2017 (12) SCALE 359
Constitution of India:
Arts. 16 (4), 16(4A) & 16(4(b) & 145 (3) –Interpretation of Article
16(4), 16(4A) and 16(4B) –Backwardness of the SC/ST – An order
passed by two judge Bench in State of Tripura v. Jayanta
Chakraborty: 2017 (13) Scale 564, for reference of the matter to be
heard by a Constitution Bench-Whether the decision in M.Nagaraj
Requires reconsideration –This Court refers the matter for
consideration by Constitution Bench
Having heard learned counsel for the parties in the present case, court do
not intend to get into the arena whether the two-Judge Bench could have
directly referred the matter to a larger Bench under Article 145(3) of the
Constitution of India, when there is already a decision by the Constitution
Bench and, therefore, it is thought appropriate to constitute a issue
whether the decision in M. Nagarj and others v. Union of India and others
requires reconsideration or not.
Court may hasten to clarify that court has not expressed any opinion on
the correctness of the said judgment. Court is only passing his order, as
there is an order passed by a two-Judge Bench of this Court to place the
matter before a Constitution Bench. Learned counsel for the parties,
though cited the authorities yet very fairly stated that it can be heard by a
Constitution Bench to be constituted by the Chief Justice of India. State
of Maharashtra & Anr. V. Vijay Ghogre & Ors. 2017 (13) SCALE
564
Pt. III and Arts. 21, 19, 14, 25, 28 and Preamble—Right to privacy—
Held, is a basic fundamental right—It forms an intrinsic part of Art.
21 and freedoms guaranteed in Pt. III—Being a basic fundamental
right covered by Pt. III, decisions of Supreme Court in M.P. Sharma,
AIR 1954 SC 300 and Kharak Singh, AIR 1963 SC 1295, to the extent
they hold that it is not a fundamental right protected by the
Constitution, overruled.
In the instant case, Hon‘ble Supreme Court observed that Bench of
three judges of the Supreme Court, while considering the constitutional
challenge to the Aadhaar card scheme of the Union government noted in
its order dated 11 August 2015 that the norms for and compilation of
demographic biometric data by government was questioned on the ground
that it violates the right to privacy. The Attorney General for India urged
that the existence of a fundamental right of privacy is in doubt in view of
two decisions : the first – M P Sharma, AIR 1954 SC 300
(―M.P.Sharma‖), rendered by a Bench of eight judges and the second, in
Kharak Singh, AIR 1963 SC 1295 (―Kharak Singh‖), rendered by a Bench
of six judges. Each of these decisions, in the submission of the Attorney
General, contained observations that the Indian Constitution does not
specifically protect the right to privacy. On the other hand, the submission
of the petitioners was that M P Sharma and Kharak Singh were founded
on principles expounded in A K Gopalan, AIR 1950 SC 27 (―Gopalan‖).
Gopalan case, which construed each provision contained in the Chapter on
fundamental rights as embodying a distinct protection, was held not to be
good law by an eleven-judge Bench in Rustom Cavasjee Cooper, (1970) 1
SCC 248 (―Cooper‖). Hence the petitioners submitted that the basis of the
two earlier decisions is not valid. Moreover, it was also urged that in the
seven-judge Bench decision in Maneka Gandhi, (1978) 1 SCC 248
(―Maneka‖), the minority judgment of Subba Rao, J. in Kharak Singh
case was specifically approved and the decision of the majority was
overruled.
While addressing these challenges, the Bench of three judges of the
Supreme Court took note of several decisions of the Supreme Court in
which the right to privacy has been held to be a constitutionally protected
fundamental right. Those decisions include : Gobind, (1975) 2 SCC 148,
R. Rajagopal, (1994) 6 SCC 632 and PUCL, (1997) 1 SCC 301
(―PUCL‖). These subsequent decisions which affirmed the existence of a
constitutionally protected right of privacy, were rendered by Benches of a
strength smaller than those in M P Sharma and Kharak Singh case. Faced
with this predicament and having due regard to the far-reaching questions
of importance involving interpretation of the Constitution, it was felt that
institutional integrity and judicial discipline would require a reference to a
larger Bench. On 18 July 2017, a Constitution Bench presided over by the
learned Chief Justice considered it appropriate that the issue be resolved
by a Bench of nine judges. The order of the Constitution Bench read:
―……….it seems that it has become essential for us to determine whether
there is any fundamental right of privacy under the Indian Constitution.
The determination of this question would essentially entail whether the
decision recorded by the Supreme Court in M.P. Sharma case by an eight-
Judge Constitution Bench, and also, in Kharak Singh case by a six-Judge
Constitution Bench, that there is no such fundamental right, is the correct
expression of the constitutional position.‖
Thus the following two questions arose for consideration by the
present Bench:
1. Whether there is any fundamental right of privacy under the
Constitution and if so, where is it located and what are its contours?
2. What is the ratio decidendi of M.P. Sharma and Kharak
Singh cases and whether those cases are rightly decided.
Answering the reference in terms below, the nine-Judge Bench of
the Supreme Court
Held:
The right to privacy is protected as an intrinsic part of the right to
life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution. The decision in M.P. Sharma
case which holds that the right to privacy is not protected by the
Constitution stands overruled. The decision in Kharak Singh case to the
extent that it holds that the right to privacy is not protected by the
Constitution also stands overruled. K.S. Puttaswamy V. Union of India,
(2017) 10 SCC 1
Art. 136 – Meaning of - Does not confer a right to appeal but only to
apply for special leave to appeal – Power under Art. 136 being
discretionary, anyone can apply for special leave to appeal.
Article 136 does not confer a right to appeal on any party but it
confers a discretionary power on the Supreme Court to interfere in
suitable cases. The exercise of the power of the court is not circumscribed
by any limitation as to who may invoke it. It does not confer a right to
appeal, it confers only a right to apply for special leave to appeal.
Therefore, there was no bar for the appellant to apply for special leave to
appeal as he is an aggrieved person. Ratanlal V. Prahlad Jat 2017 (7)
Supreme 212
Contract Act:
Sec. 74 – Forfeiture of earnest money or security – Not permissible
unless there is express stipulation in the contract
Reading of Section 74 would go to show that in order to forfeit the sum
deposited by the contracting party as "earnest money" or ―security" for the
due performance of the contract, it is necessary that the contract must
contain a stipulation of forfeiture. In other words, a right to forfeit being a
contractual right and penal in nature, the parties to a contract must agree
to stipulate a term in the contract in that behalf. A fortiori, if there is no
stipulation in the contract of forfeiture, there is no such right available to
the party to forfeit the sum.
So far as the four special conditions are concerned, these conditions were
also not part of the public notice and nor they were ever communicated to
the bidders before auction proceedings. There is no whisper of such
conditions being ever considered as a part of the auction proceedings
enabling the bidders to make their compliance, in case, their bid is
accepted.
Since these four conditions were added unilaterally and communicated to
the appellant by respondent No. 3 while accepting his bid, the appellant
had every right to refuse to accept such conditions and wriggle out of the
auction proceedings and demand refund of his security amount. The State,
in such circumstances, had no right to insist upon the appellant to accept
such conditions much less to comply and nor it had a right to cancel the
bid on the ground of non-compliance of these conditions by the appellant.
Suresh Kumar Wadhwa V. State of M.P. 2017 (7) Supreme 598
Criminal Procedure Code:
Sec. 198 (6) – Indian Penal Code, 1860 – Sec. 376 – Rape –
Cognizance of offence – Sec. 198 (6) of Code will apply to cases of
rape of ―wives‖ below 18 years, and cognizance can be taken only in
accordance with provisions of Sec. 198(6) of Code.
We have also adverted to the issue of reproductive choices that are
severely curtailed as far as a married girl child is concerned. There is
every possibility that being subjected to sexual intercourse, the girl child
might become pregnant and would have to deliver a baby even though her
body is not quite ready for procreation. The documentary material shown
to us indicates that there are greater chances of a girl child dying during
childbirth and there are greater chances of neonatal deaths. The results
adverted to in the material also suggest that children born out of early
marriages are more likely to be malnourished. In the face of this material,
would it be wise to continue with a practice, traditional though it might
be, that puts the life of a girl child in danger and also puts the life of the
baby of a girl child born from an early marriage at stake? Apart from
constitutional and statutory provisions, constitutional morality forbids us
from giving an interpretation to Exception 2 to Section 375 of the IPC that
sanctifies a tradition or custom that is no longer sustainable. Independent
Thought V. Union of India 2017 (7) Supreme 673
Sec. 439 – Onerous conditions should not be imposed for grant of bail.
Since the allegations against the accused are too serious, causing heavy
financial losses to the government, therefore, the accused will deposit Rs.
50 lakh in the court within four weeks from the date of his release on
bail.‖
The appellant challenged the condition imposed in the order for depositing
Rupees fifty lakh as precondition while granting bail before the High
Court of Judicature at Allahabad in Crl.M.A.No.16764 of 2016. In the
said case an interim order was passed on 31st May, 2016 staying the
imposition of condition of the deposit of Rupees fifty lakh subject to the
appellant depositing Rupees ten lakh within one month from the date of
the order. Accordingly, the appellant has deposited a sum of Rupees ten
lakh. The High Court by its order dated 11th November, 2016 has
dismissed the application filed by the appellant challenging the aforesaid
order.
It is clear that the appellant has already deposited a sum of Rupees ten
lakh in terms of an interim order passed by the High Court. It is also clear
from the materials on record that the co-accused, namely, B.N. Yadav and
R.K. Singh have been granted bail without a condition being imposed
upon them for depositing the amount. The appellant has been in custody
for more than four years. In the facts and circumstances of the case, we
are of the view that the Special Court was justified in granting the bail to
the appellant. However, the condition imposed by the court below for
depositing Rupees fifty lakh is onerous. The appellant has already
deposited Rupees ten lakh, which is sufficient for granting bail to him.
Therefore, direction issued by the trial court for deposit of Rupees fifty
lakh for grant of bail is accordingly modified.
The appellant shall be released on bail if he satisfies the other conditions
imposed by the Special Court in its order dated 28th April, 2016. B.N.
Srivastava V. CBI, EOU –IV, New Delhi 2017 (6) Supreme 567
Criminal Jurisprudence:
A crime involving death of a possibly innocent person cannot be over-
looked only because of a lapse of time.
If a crime has been committed, a crime which involves the death
of a person who is possibly innocent, it cannot be over-looked only
because of a lapse of time. What is also not acceptable is that the law
having been laid down by the Constitution Bench, it was the obligation of
the State to have suo motu conducted a thorough inquiry at the appropriate
time and soon after each incident took place. Merely because the State has
not taken any action and has allowed time to go by, it cannot take
advantage of the delay to scuttle an inquiry. Extra Judl. Exec. Victim
Families Assn. V. Union of India 2017 (7) Supreme 393
Criminal Trial:
Appreciation of evidence – Evidence of injured witness – Carries
great weight.
Criminal jurisprudence attaches great weightage to the evidence of
a person injured in the same occurrence as it presumes that he was
speaking the truth unless shown otherwise. Though the law is well settled
and precedents abound, reference may usefully be made to Brahm
Swaroop v. State of U.P., (2011) 6 SCC 288 observing as follows:
"28. Where a witness to the occurrence has himself been injured in the
incident, the testimony of such a witness is generally considered to be
very reliable, as he is a witness that comes with an in-built guarantee of
his presence at the scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone."
Chandrasekar V. State of Tamil Nadu 2017 (6) Supreme 638
Appreciation of Evidence
The prosecution should prove its case beyond reasonable doubt and
the court should not convict an accused in a mechanical way.
In this case, the nature of injury, contradiction about the time of
arrival of the witnesses, contradictions between the ocular medical
evidence, non-examination of Police officer who conducted seizure and
subsequent improvement by one of the eye witness casts a serious doubt
on the prosecution‘s case. For these reasons, the Court cannot hold the
accused – appellant guilty of the offence in the present case. The
conviction against appellant as recorded by the trial court and upheld by
the High Court is therefore set aside and he is acquitted of the charges.
Baliraj Singh V. State of Madhya Pradesh, 2017 (6) Supreme 578
Sec. 306 r/w Sec. 113A - Indian Evidence Act – Unless cruelty as
under Sec. 498–A IPC is not established, an accused cannot be
convicted u/s 306.
We find that having absolved he appellants of the charge of cruelty,
which is the most basic ingredient for the offence made out under Sec.
498A, the third ingredient for application of Section 113A is missing,
namely, that the relatives i.e., the mother-in-law and father-in-law who are
charged under sec. 306 had subjected the victim to cruelty. No doubt, in
the facts of this case, it has been concurrently found that the in-laws did
harass her, but harassment is something of a lesser degree than cruelty.
Also, we find on the facts, taken as a whole, that assuming the
presumption under section 113A would apply, it has been fully rebutted,
for the reason that there is no link or intention on the part of the in-laws to
assist the victim to commit suicide.
In the absence of this vital link, the mere fact that there is a finding
of harassment would not lead to the conclusion that there is ―abetment of
suicide‖.
On the facts, therefore, we find, especially in view of the fact that
the appellants have been acquitted for the crime under Sec. 498A of the
Code, that abetment of suicide under sec. 306 is not made out. Heera Lal
V. State of Rajasthan 2017 (6) Supreme 564
Sec. 307 –Arms Act, 1959- Sec. 25 (1-A)- Acquittal by High Court by
reversing judgment of conviction- Sustainability- when the High
Court while reversing decision of the Session Court acquits the
accused and assigns the reasons by appreciating the entire evidence in
support of the acquittal, then this Court would not be inclined to
interfere in the order of acquittal
In court view, the reasoning and the conclusion of the High Court in
acquitting the respondent of the charges under Section 307 IPC and
Section 25(1-A) appears to be just and proper as set out below and to
which we concur and hence it does not call for any interference by this
Court.
First, the parties involved in the case namely, the victim, his brother, who
was one of the eye-witnesses with other two eye-witnesses and the
accused were known to each other then why the Complainant-brother of
victim in his application (Ex-P-A) made immediately after the incident to
the Chief Medical Superintendent, Pilibhit did not mention the name of
the accused and instead mentioned therein "some sardars".
Second, according to the prosecution, the weapon used in commission of
offence was recovered from the pocket of the accused the next day, it
looked improbable as to why would the accused keep the pistol all along
in his pocket after the incident for such a long time and roam all over.
Third, the weapon (pistol) alleged to have been used in the commission of
the offence was not sent for forensic examination with a view to find out
as to whether it was capable of being used to open fire and, if so, whether
the bullet/palate used could be fired from such gun. Similarly, other seized
articles such as blood-stained shirt and soil were also not sent for forensic
examination.
Fourth, weapon (Pistol) was not produced before the concerned
Magistrate, as was admitted by the Investigating Officer.
Lastly, if, according to the prosecution case, the shot was hit from a very
short distance as the accused and the victim were standing very near to
each other, then as per the medical evidence of the Doctor (PW-6) a
particular type of mark where the bullet was hit should have been there
but no such mark was noticed on the body. No explanation was given for
this. This also raised some doubt in the prosecution case.
In court considered opinion, the aforesaid infirmities were, therefore,
rightly noticed and relied on by the High Court for reversing the judgment
of the Session Court after appreciating the evidence, which the High Court
was entitled to do in its appellate jurisdiction. Court finds no good ground
to differ with the reasoning and the conclusion arrived at by the High
Court. State of Uttarakhand v. Jairnail Singh, 2017 (13) SCALE 410
Interpretation of Statute:
Foreign judgment- No need to rely upon – But developments in other
countries must be kept in mind.
Although excessive reliance on foreign jurisprudence may not be
necessary as we have starkly deviated in many aspects from American
jurisprudence, but we need to keep in mind the developments which other
countries have undertaken regarding this issue. Securities and Exchange
Board of India V. Sri Kanaiyalal Baldevbhai Patel 2017 (7) Supreme
425
Limitation Act
Arts. 82 and 113—Suit for damages for death of a person—
Limitation—once a specific period of limitation is referable to any of
the entries in the Schedule, then residuary Article 113 cannot be
invoked
The learned counsel appearing for the respondents, once a specific
period of limitation is referable to any of the entries in the Schedule to the
Limitation Act, 1963, then the residuary Article 113 cannot be invoked. In
the instant case, for a suit for damages under the Fatal Accidents Act,
1855, Article 82 provides for a specific period of limitation, viz., two
years from the date of death of the person. Damini V. Managing
Director, Jokhpur Vidyut Vitran Nigam Ltd., 2017 ACJ 2865
Sec. 138 and Sec. 205, Code of Criminal Procedure, 1973 - Dispensing
with personal appearance of accused – Discretion of appearance of
accused – Discretion of Magistrate without causing prejudice to
prosecution proceedings.
This Court held that even in absence of accused, evidence can be recorded
in presence of counsel under Section 273 Cr.P.C. and Section 317 Cr.P.C.
permitted trial to be held in absence of accused. Section 205 Cr.P.C.
specifically enabled the Magistrate to dispense with the personal
appearance. Having regard to the nature of offence under Section 138, this
Court held that the Magistrates ought to consider exercise of the
jurisdiction under Section 205 Cr.P.C. to relieve accused of the hardship
without prejudice to the prosecution proceedings. It was observed:
―15. These are days when prosecutions for the offence under Section 138
are galloping up in criminal courts. Due to the increase of inter-State
transactions through the facilities of the banks it is not uncommon that
when prosecutions are instituted in one State the accused might belong to
a different State, sometimes a far distant State. Not very rarely such
accused would be ladies also. For prosecution under Section 138 of the NI
Act the trial should be that of summons case. When a magistrate feels that
insistence of personal attendance of the accused in a summons case, in a
particular situation, would inflict enormous hardship and cost to a
particular accused, it is open to the magistrate to consider how he can
relieve such an accused of the great hardships, without causing prejudice
to the prosecution proceedings.‖ M/s. Meters and Instruments Pvt. Ltd.
V. Kanchan Mehta 2017 (7) Supreme 558
Ss. 138 and 143 – Cheque amount with interest and cost as assessed
by the Court, if paid by a specified date – Court could claose the
proceedings – However, if trial is to proceed, Court may explore
possibility of settlement – It may also consider provisions of plea
bargaining – Subject to this, the trial can be on day to day basis so as
to conclude it within six months.
We hold that where the cheque amount with interest and cost as assessed
by the Court is paid by a specified date, the Court is entitled to close the
proceedings in exercise of its powers under Section 143 of the Act read
with Section 258 Cr.P.C. As already observed, normal rule for trial of
cases under Chapter XVII of the Act is to follow the summary procedure
and summons trial procedure can be followed where sentence exceeding
one year may be necessary taking into account the fact that compensation
under Section 357(3) Cr.P.C. with sentence of less than one year will not
be adequate, having regard to the amount of cheque, conduct of the
accused and other circumstances.
In every complaint under Section 138 of the Act, it may be desirable that
the complainant gives his bank account number and if possible e-mail ID
of the accused. If e-mail ID is available with the Bank where the accused
has an account, such Bank, on being required, should furnish such e-mail
ID to the payee of the cheque. In every summons, issued to the accused, it
may be indicated that if the accused deposits the specified amount, which
should be assessed by the Court having regard to the cheque amount and
interest/cost, by a specified date, the accused need not appear unless
required and proceedings may be closed subject to any valid objection of
the complainant. If the accused complies with such summons and informs
the Court and the complainant by e-mail, the Court can ascertain the
objection, if any, of the complainant and close the proceedings unless it
becomes necessary to proceed with the case. In such a situation, the
accused's presence can be required, unless the presence is otherwise
exempted subject to such conditions as may be considered appropriate.
The accused, who wants to contest the case, must be required to disclose
specific defence for such contest. It is open to the Court to ask specific
questions to the accused at that stage. In case the trial is to proceed, it will
be open to the Court to explore the possibility of settlement. It will also be
open to the Court to consider the provisions of plea bargaining. Subject to
this, the trial can be on day to day basis and endeavour must be to
conclude it within six months. The guilty must be punished at the earliest
as per law and the one who obeys the law need not be held up in
proceedings for long unnecessarily.
It will be open to the High Courts to consider and lay down category of
cases where proceedings or part thereof can be conducted online by
designated courts or otherwise. The High Courts may also consider
issuing any further updated directions for dealing with Section 138 cases
in the light of judgments of this Court. M/s. Meters and Instruments
Pvt. Ltd. V. Kanchan Mehta 2017 (7) Supreme 558
Property Law:
Document creating interest in undivided property for
consideration of Rs. 2000 – Document neither witnessed by anybody
nor registered – A document creating interest of more than Rs. 100
has to be registered.
When we carefully peruse the original document, we notice that by this
document [Annexure P-2] Phoolchand states that he has received
Rs.2000/- from Yashchandra and that he has permitted Yashchandra to
enclose and cultivate 1/3rd of his land measuring 24 acres and cultivate
the same and only Rs. 500/- would be deducted. Even after payment of the
full amount of Rs. 2000/-, Yashchandra would be entitled to cultivate the
land for a period of 10 years. This document is signed only by Phoolchand
and it is neither witnessed by anybody nor registered. This document
transfers an interest in immovable property of more than rupees hundred.
It may be true that under the provisions of the Code oral leases of
agricultural holdings are permissible, but once the lease is created by a
document then the same has to be registered under the Registration Act.
This document is an unregistered document. The courts below have come
to the conclusion that this document is an ante-dated document. Therefore,
this document cannot be looked into for deciding whether this document
creates any right, title or interest in the appellants. In our view, in the
absence of any registration or any attesting witness, the document could
have easily been manipulated by Phoolchand and the plaintiff by ante-
dating it. Yashchandra (D) by LRs. V. The State of Madhya Pradesh
2017 (7) Supreme 421
Service Law:
Appointment subject to final outcome of writ petition – Writ petition
finally dismissed – Appointees continuing for 10 years – Such
appointments cannot be saved.
we may note that the learned Solicitor General had informed us that
fresh regular recruitment for Group-D posts and other posts in Bikaner
Division of the Railways is under process. On 24th August, 2017, 14
original applicants were granted age relaxation for a period of 13 years
and they were permitted to appear in the selection process wherein their
cases would be considered on merit. Mr. R. Venkatramni, learned senior
counsel had sought time to take instructions from his clients in this regard.
He now submits that his clients, having served for more than 10 years, are
not in a position to appear in the test. We are concerned with a large
number of appellants and in case the process for selection is still on, we
direct the Railways to give relaxation of age to the appellants by
deducting the period of service for which they have worked and they may
also be considered at par with the original applicants by allowing them to
take part in the selection process. In case the appellants or any of them do
not take part in the selection process, they will not be given relaxation of
age in any further selection process. Abudl Hamid V. Union of India
2017 (7) Supreme 417
Sec. 28- Contempt of Court Act, 1971 –Section 2(b) –Dispute in the
family having arisen after a compromise- Parties have prayed for
divorce by mutual consent- This Court dissolves the marriage by a
decree of divorce by consent- In case the parties have nay grievances
with regard to the working of the terms of settlement, they shall
mention in only before this Court and shall not take any other
recourse before any other forum
In this case, court is of the view that there is no point in relegating the
parties to any other forum for a decree of divorce by mutual consent under
the Special Marriage Act, 1954. Contextually, we may also note that the
parties have already filed a petition under Section 28 of the Special
Marriage Act, 1954 before the Principal Judge, Family Court, Patiala
House, New Delhi.
Accordingly, Interlocutory Application No. 73033 of 2017 is allowed. The
marriage between Ms. Jasmine Charaniya and Mr. Ahmed Charaniya is
dissolved by a decree of divorce by consent. Since the terms of settlement
have been reduced in the application, the application shall form part of
this Order.
In case the parties have any grievances with regard to the working of the
terms of settlement, we make it clear that they shall mention it only before
this Court and shall not take any other recourse before any other forum.
Jasmine Charaniya v. Ahmed Charaniya, 2017 (13) Scale 64
Succession Act
Sec. 372 – Succession certificate – When cannot be granted?
Succession certificate claimed on basis of a Will cannot be granted
if execution of the Will is surrounded by suspicious circumstances. Dr.
Prakash Soni v. Deepak Kumar 2017 (7) Supreme 190
Sec. 58 (C) – Mortgage by conditional sale or a sale out and out with a
condition of repurchase – Tests – Discussed and applied.
In our considered opinion, the aforesaid five reasons satisfies the third
condition of Section 58(c) of the T.P. Act, namely, ―on condition that such
payment being made, the buyer shall transfer the property to the seller‖. It
also satisfies the tests laid down by this Court in Chunchun Jha‘ case
(supra), namely, First, the transaction is concluded in one document;
Second, the document styled as a " Deed of Conditional Sale " itself
contains the condition of repurchase on offering the sale money without
interest for the reason that defendant No.1 was allowed to use the land till
the money is not paid back to him by the seller (plaintiff); and Third,
parties‘ intention as per terms of Ex.P-1 is also supported by the evidence
which was accepted by the two Courts - Trial Court and the High Court.
In the light of foregoing discussion, we are of the considered opinion that
the Trial Court and the High Court was right in decreeing the plaintiff's
suit whereas the first Appellate Court was not right in dismissing the suit.
In other words, the reasoning and the conclusion arrived at by the Trial
Court and the High Court while holding that Ex.P-1 is a " mortgage deed
by conditional sale " as defined under Section 58(c) of the T.P. Act is just
and proper and hence it deserves to be upheld by this Court. Sri
Srinivasaiah V. H.R. Channabasappa (since dead) by his LRs 2017 (6)
Supreme 569
Wakf Act:
Sec. 55-C – Bar on jurisdiction of civil court – Plea not raised before
courts below – Plea not tenable
In this case, learned counsel for the respondent (plaintiff) that
though the amendment in Section 55 was introduced in 1984 by Act No.
69 of 1984 in the Wakf Act, 1954 but the date of the amendment was
never notified with the result, the amendment was never brought into
force except two provisions with which we are not concerned here. In the
meantime, the entire Wakf Act, 1954 and the Wakf (Amendment) Act,
1984 were repealed by the Waqf Act, 1995. (See-Introduction of The
Waqf Act, 1995).
In other words, since the amendment made by Act No. 69 of 1984 in the
Wakf Act, 1954 which governs the constitution of Tribunal and creation
of bar of filing suit in civil court was never notified and the main Act of
1954 including the amending Act, 1984 was, in the meantime, repealed by
Act of 1995, the question of maintainability of the civil suit in the light of
such provisions did not arise. Dharampal (Dead) through LRs. V. Punjab
Wakf Board 2017 (7) Supreme 156
Learned Counsel for the petitioner could not point out any manifest
error apparent on the face of record in the impugned orders so as to justify
interference by this Court in extra-ordinary jurisdiction under Article 227
of the Constitution of India.
Both the Courts below recorded concurrent findings of fact and
unless these findings are shown perverse or contrary to record resulting in
grave injustice to petitioner, in writ jurisdiction under Article 227, this
Court exercising restricted and narrow jurisdiction would not be justified
in interfering with the same.
In supervisory jurisdiction of this Court over subordinate Courts,
the scope of judicial review is very limited and narrow. It is not to correct
the errors in the orders of the Court below but to remove manifest and
patent errors of law and jurisdiction without acting as an appellate
authority.
In view thereof, I find no justification warranting interference with
the orders impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed. Hari
Krishna Srivastava V. Additional District Judge, Allahabad and 7
others, 2017(3) ARC 844
Constitution of India
Art. 16- Compassionate appointment- Exhaustion of right –claim and
accepting appointment to lower past extinguishing his right to claim
further appointment on other equivalent or higher post- claimant not
entitled to appointment on group c post
In Shyamdhar Mishra Vs. State of U.P., 2006(2) AWC 1415 reiterating the
aforesaid view following Umrao Singh (supra), this Court in para 9 of the
judgment held:
"In my view, once the appointment is made on the compassionate ground,
the said rule comes to an end and no further appointment could be made
under the said Rules. The authority could not, in any manner, reconsider
the case of the petitioner or of any other person where an appointment had
already been given at some anterior point of time, on compassionate
ground under the Dying-in-Harness Rules."
Another Division Bench of this Court, following Umrao Singh (supra), in
Shardendu Tiwari Vs. State of U.P. & others in Special Appeal 908 of
2006 decided on 22.8.2006 held as under :
"The submission of learned Standing Counsel that once compassionate
appointment is accepted, the right is exhausted and there cannot be any
second consideration for the same right is well founded. The judgment of
Apex Court in State of Rajasthan (supra) fully support the said
submission."
In Rajesh Mahajan Vs. State of U.P. and others 2014 (2) ADJ 55, this
Court said "Once an appointment is made on compassionate basis, the
incumbent ceased to have any right to claim further appointment on any
other post equivalent or higher status".
In view of the above discussion, we are of the view that Tribunal has
clearly erred in law in holding otherwise. Judgment impugned in this writ
petition, therefore, cannot be sustained. State of U.P. and others v.
Pawan Kumar Sharma and another, 2017 (6) ALJ 16
Arts. 309, 16- U.P. Civil Service Regulations, Regns. 351, 351A-
Pension- Part of person and /or gratuity cannot be withheld in
absence of statutory provision during pendency of
department/Criminal proceedings
After considering the provisions of Rule 43A and 43 (b) of Bihar Pension
Rules, which in effect are pari material with Regulations 351 and 351-A
of Civil Service Regulations applicable in the State of U.P., it was held
that in the absence of any provision in the rule providing for withholding
of the pension/gratuity, there is no power with the Government to
withhold gratuity and pension etc. during the pendency of the
departmental or criminal proceedings. Ram Murti Pandey V. State of
U.P. and others, 2017 (6) ALJ 82
Criminal Trial
Continuing offence - Jurisdiction of Court
Hon‘ble Court held that where there is allegation that her in-laws have
thrown out her out of their house and have refused to keep her therein,
therefore, the complainant is residing in the house of her parents. Thus, it
cannot be said that she is ling in her parental house happily with her own
wish, rather it is established that she is living therein in compelling
circumstances and definitely in the state of harassment, which comes
under the category of offence and is termed as continuing offence.
As cruelty includes mental as well as physical torture it would be
immaterial whether the victim was living at her matrimonial house or at
her parental house. It would be treated as continuing offence. In returning
the articles or Istridhan would also constitute the mental cruelty.
Manohar Lal and others v. State of U.P., 2017 (101) ACC 570
Evidence Act
Sec. 32 - Evidentiary value of dying declaration
Hon‘ble Court held that if the dying declaration has been recorded in
accordance with law, is reliable and gives a cogent and possible
explanation of the occurrence of the events, then the dying declaration can
certainly be relied upon by the Court could form a sole piece of evidence
resulting in the conviction of the accused. Ved Ram @ Badela v. State of
U.P., 2017 (101) ACC 453
Interpretation of Statutes
Rule of- Literal construction –Statute is open to interpretation only if
there is ambiguity in language
It is trite that the real purpose in construing a statute is to ascertain the
intention of the legislature. The legislature speaks its mind by use of
correct expression which has to be given effect to. If there is ambiguity in
the language of the provision only then the court can interpret the
provision. If the language is clear and unambiguous, there is not need to
look somewhere else to discover the intention or meaning. If the literal
construction leads to absurdity, only in that case external aids to
construction can be resorted to. Smt. Sadhana v. State of U.P. and
others, 2017 (6) ALJ 242
Having heard the learned counsel for the parties and having gone through
the record, I find that is not in dispute that the building was constructed in
1987 and it was, therefore, not covered under U.P. Act No. 13 of 1972. I
also found the record that the notice under Section 106 of the Transfer of
Property Act was validly served upon the revisionist and the tenancy was
validly terminated. Since the building was not within the purview of U.P.
Act No. 13 of 1972, therefore, no ground for eviction was required to be
proved by the opposite party. The judgment and decree passed by the
court below. Therefore, does not suffer from any illegality. The revision
being devoid merit is liable to be dismissed.
In the result, the revision is dismissed. However, considering the fact that
the revisions is running post office in the building in question, eight
weeks‘ time is granted to the revisionist to vacate the premises and hand
over its possession to the opposite party. It is further provided that in case
the revisionist fails to hand over its vacant possession to the
plaintiff/opposite party within the aforesaid period, it shall be open for the
opposite party to execute the decree in accordance with law. Union of
India Through The Supreintendent of Post Office V. Prem Nath
Malhtro., (2017 (2) ARC 198
Stamp Act;
Sec. 47 A- Deficiency in Stamp Duty- initiation of Action- Limitation-
Proceedings for computation of deficiency in stamp duty initiated
after about 11 years from the date of execution of sale deed in
question –Validity
The proposition of law is no longer res integra having been settled by a
Full Bench of this Court in the case of Girjesh Kumar Srivastava and
another Vs. State of U.P. and others reported in AIR 1998 Allahabad 237
(Special Bench) wherein the Full Bench has held that the period of
limitation will run from the date when the Collector takes cognisance of
the matter and initiates proceedings. The submission of the report or
presentation of the document by the Registrar or the Tehsildar or any
other authority is not the starting point of limitation.
In the present case also, what is noticed is that the sale deed was executed
on 19.12.1989 whereas the proceedings under Section 47A of the Act,
1899 were initiated for computation of deficiency of stamp duty in the
year 2000 and therefore, the entire proceedings against the petitioner were
initiated beyond the period of limitation as prescribed under Section 47A
(3) of the Act, 1899.
For reasons aforesaid and the law laid down by the Full Bench in the case
of Girjesh Kumar Srivastava, the impugned orders dated 18.11.2000 and
24.12.2002 are absolutely illegal and without jurisdiction and are
accordingly, quashed. Smt. Sheela Srivastava v. Addl. Commissioner,
First/CCRA, Allahabad and others, 2017 (35) LCD 2739
Statutory Provisions:
English translation of Nyay Anubhag-2 (Adhisnasth Nyayalaya), Noti.
No. 08/2017/1141(3)/VII-Nyaya-2-2017-134G-2017, dated September
5, 2017, published in the U.P. Gazette, Extra., Part 4, Section (Kha),
dated 5th September, 2017, p.2
In exercise of the powers under Section 5-A of the Provincial Insolvency
Act, 1920 (Act No. V of 1920) and in consultation with the High Court of
Judicature at Allahabad, the Governor is pleased to empower the District
Judge, Sambhal at Chandausi with effect from the date of his taking over
charge, as District Judge, Sambhal at Chandausi to do all acts mentioned
in the said section within the local limts of his territorial jurisdiction
English translation of Nyay Anubhag-2 (Adhisnasth Nyayalaya), Noti.
No. 08/2017/1141(3)/VII-Nyaya-2-2017-134G-2017, dated September
5, 2017, published in the U.P. Gazette, Extra., Part 4, Section (Kha),
dated 5th September, 2017, p.2
In exercise of the powers under clause (d) of Section 3 of the Land
Acquisition Act, 1894 (Act No. 1 of 1984) and in consultation with the
High Court of Judicature at Allahabad, the Governor is pleased to appoint
the District Judge, Sambhal at Chandausi to be Special Judicial Officer
with effect from the date of his taking over charge, as District Judge,
Sambhal at Chandausi to to perform the function of the ―Court‖ under the
said Act, the local limits of his territorial jurisdiction
English translation of Karmik Anubhag-2, Noti. No. 4/2017/1/1/2017-
Ka-2, dated August 31, 2017, published in the U.P. Gazette, Extra.,
Part4, Section (Ka), Dated 31 August, 2017, pp. 2-3
In exercise of the powers conferred by the proviso to Article 309 of the
Constitution and in supersession of all existing rules and orders on the
subject, the Governor is pleased to make the following rules:
Ministry of Home Affairs, Noti. No. G.S.R. 1342 (E) , dated October
27, 2017, published in the Gazzete of India, Extra, Part II, Section
3(i), dated 27th October, 2017, pp 4-6 No.
In exercise of the powers conferred by section 44 of the Arms Act, 1959
(54 of 1959), the Central Government hereby makes the following rules to
amend the Arms Rules, 2016, namely:—
1. (1) These rules may be called the Arms (Amendment) Rules, 2017.
(2) They shall come into force on the date of their publication in the
Official Gazette.
2. In the Arms Rules, 2016, ─
(i) in rule 2, in sub-rule (I), after clause (21), the following clause shall
be inserted, namely:-
‗(21a) ―existing manufacturer‖ means any manufacturer holding
manufacturing licence under the Arms Rules, 1962 in Form IX or under
the Industrial Development (Regulation) Act, 1951 or rules framed there
under on the date of notification of these rules;‘;
(ii)in rule 19, after sub-rule (3), the following shall be inserted, namely:-
―(4) The Area validity granted under sub-rule (3) shall not terminate with
the validity period of the licence and the renewing authority shall not vary
the area validity at the time of renewal of licence:
Provided that where in any case, the renewing authority on the basis of
some material evidence, is satisfied that area validity for the whole of
India is not required anymore, it may send the recommendations to the
licensing authority concerned for review of the area validity.‖;
(iii) in rule 29, the following proviso shall be inserted, namely:-
―Provided that in case of a licence in Form VII for the manufacture and/or
proof test of arms and ammunition, the fee shall be payable at the time of
grant of a licence.‖;
(iv) in rule 51, -
(a) sub-rule (4) shall be omitted;
(b) for sub-rule (5), the following sub-rule shall be substituted,
namely:—
―(5) Single licence in Form VII may be issued to an applicant company
applying for a multi-unit facility which may be set-up within the same
State or in different States within the country, for the grant of a licence
under these rules:
Provided that an applicant company may apply for a separate licence for
each unit and in that case, separate licence shall be issued for each of the
units.‖;
(v) in rule 54, for sub-rule (2), the following sub-rule shall be
substituted, namely:—
―(2) A licence granted in Form VII shall be valid for the life time of the
licensee company:
Provided that the licensee shall be required to setup the facility for
manufacture or proof test of arms and/or ammunition, recruit technical
and administrative staff, develop and proof test proto-types of arms and
ammunition, conduct trial runs and any other activity related to the setting
up of the facility for the manufacture or proof-test of arms and
ammunition, within a period of seven years from the date of grant of a
licence:
Provided further that the licensing authority may extend the period of
seven years by a further period of three years, on the basis of a written
representation received from the licensee and after recording reasons for
granting such an extension:
Provided also that if during the period of seven years or the extended
period of three years, as the case may be, the licensee fails to setup the
manufacturing or proof-test facility or is unable to take other operating
steps required for starting commercial production, the licence shall be
suspended or revoked.‖;
(vi) in rule 55, for sub-rule (6), the following sub-rule shall be
substituted, namely:-
―(6) The small arms and light weapons produced by the manufacturers
may be allowed for export subject to the approval of the Ministry of
Home Affairs in consultation with the Ministry of External Affairs, the
Ministry of Defence and the Ministry of Commerce, on a case to case
basis.‖;
(vii) in rule 55, after sub-rule (10), the following sub-rule shall be
inserted, namely:-
―(11) A licensee company having a licence in Form VII shall be permitted
to have enhanced annual production of firearms and/or ammunition upto
fifteen per cent. of the quantity endorsed on his licence, by giving prior
intimation to the licensing authority for which no further endorsement on
the licence as to capacity shall be required.‖;
(viii) in rule 59, ─
(a) in sub-rule (7), for the words ―Every licensee having a proof-test
facility‖, the words and figures ―Every licensee holding a licence in Form
VII‖ shall be substituted;
(b) in sub-rule (9), for the words ―Every licensee under this rule‖, the
words and figures ―Every licensee having a licence in Form VII‖ shall be
substituted;
(ix) in rule 60, for sub-rule (4), the following sub-rules shall be
substituted, namely:-
―(4) Every existing manufacturer shall be issued a fresh licence in Form
VII, within a period of two years of the notification of these rules, by the
licensing authority and any permission or any exemption granted for
procurement of raw materials to the existing manufacturers under the
Arms Rules, 1962 or under the Industrial Development (Regulation) Act,
1951 or rules framed thereunder, shall be deemed to have been issued
under the corresponding provisions of these rules.
(5) Every fresh licence issued in Form VII under sub-rule (4) shall be
valid for the life time of the licensee and such licensee shall be permitted
to have enhanced annual production of firearms and/or ammunition upto
fifteen per cent. of the quantity endorsed on his licence by giving prior
intimation to the licensing authority and for which no further endorsement
on the licence as to capacity, shall be required.‖;
(x) in Schedule IV, in Part II of Table A, for serial numbers
7,8,9,10,15 and 20 and the entries relating thereto, the following serial
numbers and entries shall, respectively, be substituted, namely:—
Licence Fee Renewal fee for
at the time of each subsequent
Sr
Form No. grant of year wherever
No.
licence (in applicable (in
Rs.) Rs.)
―7. VII Manufacture and Proof Test
Firearms - Annual Licensed
I
Capacity
―Liberty‖—Meaning of
The most basic understanding of the expression ―liberty‖ is the
freedom of an individual to do what he pleases. But the idea of liberty is
more complex than that a better view of the whole scheme of Pt. III is to
look at each one of the guaranteed fundamental rights not as a series of
isolated points, but as a rational continuum of the legal concept of liberty
i.e. freedom from all substantial, arbitrary encroachments and purposeless
restraints sought to be made by the State. K.S. Puttaswamy V. Union of
India, (2017) 10 SCC
LEGAL QUIZ
1 Query: Which Rules (Central Rules 2007 or State Rules 2004) will
prevail for holding age determination Enquiry of Juvenile?
Ans.: Sec. 88 of the Juvenile Justice (Care & Protection of Children) Act
2000 provides that only such rules made by State shall apply which
conform to Central Rules.
Rules 96 of the Juvenile Justice (Care & Protection of Children) Act 2007
has also declared that until the new rules conforming to these rules are
framed by the State Govt. concerned u/s 68 of that Act, these rules 2007
shall mutatis mutandis apply in that State.
It is pertinent here to mention that UP Juvenile Justice (Care & Protection
of Children) Rules 2004 were made in the year 2004
It is settled principle that if here is a conflict between the provisions of
two similar statutes, the provisions of subsequent enactment will
ordinarily prevail over the earlier enactment
You are advised to go through above provisions carefully and act
accordingly,
Ans. Order 15 Rule 5 CPC confer a discretion upon the Civil Court that if
order 15 Rule 5 has not been complied with then after adopting the
procedure prescribed in sub rule (2) the court may strike off the defence of
the defendant. This can be done at any stage of the proceeding. But the
court is not bound to strike off defence and it can refuse to do so for valid
reasons. See. Vimal Chand Jain v. Gopal Agarwal. AIR 1981 SC 1657,
Smt Leela Devi v. Smt Shanti Devi AIR 1986 All 90.