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Rajasthan High Court Monthly Digest: January 2022
ANIRUDH VIJAY
1 Feb 2022 3:15 PM IST
This digest contains all the important judgments and orders pertaining to Rajasthan for the month of January 2022, covered by LiveLaw. Judgments/ Orders 1. District Judge Recruitment Exam; Rajasthan HC dismisses Plea Challenging Conditions On Candidates To Furnish 10 Certified Copies of Judgments Case Title: Laxmilal Salvi v. Registrar General, Rajasthan...
This digest contains all the important judgments and orders pertaining to Rajasthan for the month of January 2022, covered by LiveLaw.
Judgments/ Orders
Case Title: Laxmilal Salvi v. Registrar General, Rajasthan High Court
Case Citation: 2022 LiveLaw (Raj) 1
The division bench of Rajasthan High Court, Jodhpur dismissed a plea challenging the conditions on candidates to supply certified copies of those 10 judgments of which the candidate has furnished particulars while submitting online application form.
As per the petitioner, this requirement is not part of the recruitment rules, and therefore, cannot be inserted through the recruitment notification.
The court observed, "Clause (f) of paragraph 6 of the main notification thus traces its root to Sub-rule (1) of Rule 36 of the said rules and is thus in consonance with the statutory recruitment rules. Rule 36(1) is not under challenge. The condition, therefore, cannot be set aside."
Case Title: Seemajan Kalyan Samiti, Rajasthan v. Union of India
Case Citation: 2022 LiveLaw (Raj) 2
A division Bench of Rajasthan High Court, Jodhpur dismissed a public interest litigation seeking direction to the Union government that ten kilometres of area from international border line (India and Pakistan) should be declared as no mining/commercial/industrial zone. The court observed that it is a sensitive policy matter and not a subject matter of decision by the High Court in a writ petition.
The bench comprising of Akil Kureshi, CJ and Rameshwar Vyas J. observed,
"In our opinion, these are sensitive policy matters. What should be the buffer zone for permitting mining operations and other commercial operations near the international border, cannot be subject matter of decision by the High Court in a writ petition.
In addition to the above, the plea also seek permission for mining lease already granted should be cancelled. Further, it was also prayed that the decision to shut down Border Intelligence Chowkis be reversed.
Case Title: School Development Management Committee, Shri Hari Singh Senior Secondary School and Ors v. State of Rajasthan and Anr.
Case Citation: 2022 LiveLaw (Raj) 3
While allowing the plea filed by the petitioner, the single bench of Rajasthan High Court, Jodhpur held that the impugned decision of the State seeking to convert the school in question from a Hindi medium to an English Medium school with immediate effect, is fortiori, violative of Article 19(1)(a) and 14 of the Constitution.
Justice Dinesh Mehta held that English, as a medium of instruction, cannot be thrusted upon a child even by a legislation enacted by the State Government, much less by a policy decision.
The present petition, filed by School Development Management Committee of Shri Hari Singh Senior Secondary School, Pilwa Panchayat Samiti Dechu, Jodhpur, challenging the decisions of Sept 2021 taken by the state government which converted petitioners' Hindi Medium school to an English Medium School - Mahatma Gandhi Government School (English Medium).
Case Title: D.K. Garg and Anr. v. State of Rajasthan and Ors
Case Citation: 2022 LiveLaw (Raj) 4
A division Bench of Rajasthan High Court, Jodhpur the order of the Power Sector Companies by which the entire Cadre of Feeder Manager in 5 Power Sector Companies of Rajasthan was merged with the Cadre of Assistant Engineer (O&M) and they were adjusted in the seniority list of 2010-11 & 2011-12.
The bench comprising Justices Dinesh Mehta and Rameshwar Vyas observed that it is settled position of law that equating the posts or merging the posts or grant of seniority lies within the exclusive domain of the employer or the State Government. The scope of interference or judicial review is very limited. Court added that interference of court in policy matters is permissible only when there is a lacuna or procedural lapse in the decision making process.
Case Title: Ramchandra Nath Siddh Son of Poos Nath Sidh v. The Union of India and Ors.
Case Citation: 2022 LiveLaw (Raj) 5
A single bench of Rajasthan High Court, Jodhpur directed Union government to keep a post vacant for candidate suffering from Cubitus Valgu and having Tattoo Mark in pursuance of CISF Examination, 2019, till further orders.
After hearing the petitioner on interim relief, Justice Mahendar Kumar Goyal ruled, "Taking into consideration the submissions advanced by the learned counsel for the petitioner and the material on record, this Court deems it just and proper to direct the respondents to keep a post vacant in pursuance of examination, 2019, till further orders."
Case Title: Dr, Karanjeet Kaur v. State of Rajasthan
Case Citation: 2022 LiveLaw (Raj) 6
A division bench of Rajasthan High Court, Jodhpur dismissed a plea challenging the RPSC procedure for the selection of Assistant Professors in government colleges for a total number of 918 posts. The question arose before the bench that whether or not the qualifications and the method of recruitment, as provided in the advertisement and which are followed by the Rajasthan Public Service Commission (RPSC), are in consonance with the UGC guidelines.
The bench of Chief Justice Akil Qureshi and Justice Sudesh Bansal noted, "We may recall, more than 1,50,000 candidates have applied for 918 posts. As noted, UGC regulations have not provided any cut-off for shortlisting the candidates on the basis of scores to be allotted in terms of the table. Even if we permit the degree of latitude to the recruiting agency and expect calling for oral interview candidates 5 times the number of notified vacancies, this would require conducting the oral interview close to 5,000 candidates".
Case Title: Chetan Choudhary v. Union of India and Ors.
Case Citation: 2022 LiveLaw (Raj) 7
The Rajasthan High Court on Monday directed the Central government to expeditiously decide on the claim application filed by a depositor of the beleaguered Adarsh Credit Co-operative Society Ltd.
It ordered that the said decision has to be taken preferably within a period of 90 days, strictly in accordance with the law.
Justice Dinesh Mehta ordered, " The respondents are directed to take a decision on the application filed by the petitioner expeditiously, preferably within a period of ninety days from the date of receipt of copy of this order strictly in accordance with rules and guidelines governing the field."
The Adarsh Credit Co-op Society allegedly floated several fake companies and siphoned off its depositors money, approximately Rs. 8,000 Crore.
Case Title: Sandeep Kumar v. Union of India and Ors.
Case Citation: 2022 LiveLaw (Raj) 8
The Rajasthan High Court has ordered the competent authority of NEET to allot an appropriate college to a citizen of Pakistan, in accordance with his merit, while ignoring the fact that he does not possess a Long Term Visa.
Justice Dinesh Mehta, in his order, observed, " Petitioner appeared in the NEET (UG) Examination and has secured 80% marks, it is hereby ordered that the competent authority of the NEET shall allot appropriate college to the petitioner, of course, in accordance with his merit, however, ignoring the fact that the petitioner is not having Long Term Visa in his favour."
The court further added that the petitioner shall thereafter be permitted to pursue his course, which shall be subject to final outcome of the writ petition.
The petitioner, his parents and siblings are Pakistani Citizens and they came to India on October 29, 2011 through valid Passport under Long Term Visa (LTV).
Case Title: Shobha and Anr. v. State of Rajasthan and Ors
Case Citation: 2022 LiveLaw (Raj) 9
The Rajasthan High Court has denied Police protection to a runaway couple, apprehending threat from their families. The court observed that there is no material or reason for it to conclude that the petitioners' life and liberty are at peril.
Justice Dinesh Mehta further observed, " If the petitioners have decided to marry, they must muster the audacity and possess tenacity to face and to persuade the society and their family to accept the step they have taken."
In the instant case, it noted that there is not even an iota of evidence to evince that the respondents (relatives of the petitioner No.1) are likely to cause physical or mental assault to the petitioners.
Case Title: Madhuram and Ors v. State of Rajasthan, with connected matter
Case Citation: 2022 LiveLaw (Raj) 10
The Rajasthan High Court has quashed and set aside conviction of five accused persons for allegedly forming an unlawful assembly and causing injuries/ murder, observing that the incident was nothing but a "free fight.
The Division Bench comprising Justices Rameshwar Vyas and Sandeep Mehta observed, " We have no hesitation in holding that the ingredients required to constitute an unlawful assembly are totally lacking in this case and hence, the implication of accused persons by virtue of Section 149 IPC is unwarranted and unsustainable".
Taking note of the facts of the case and the circumstances that led to an altercation between the complainants and the accused, it added,
" the incident has all trappings of a free-fight between the two parties without there being any motive for the accused to launch an assault with the intention to commit murder of any person from the complainant party."
Case Title: Kunal Sharma and Anr. v. Union of India and Ors.
Case Citation: 2022 LiveLaw (Raj) 11
The Rajasthan High Court, Jaipur Bench has allowed a NEET Candidate to avail the benefit of ESIC quota (ward of insured person quota) in the counselling process for admissions in MBBS/BDS Course.
Notwithstanding the fact that the requisite contributions to the Employees' State Insurance Corporation were not paid by the employer concerned, the Court held that the candidate cannot be denied the benefit of quota, provided his father, the insured person, had paid his contribution prior to the cut-off date.
Justice Ashok Kumar Gaur observed, " The non-deposit of contribution in spite of deduction will not make the person disentitle for the benefit of ward of insured person if the insured person had paid the contribution to his employer prior to 31.03.2021."
Case Title: Chunnilal and Anr. v. State of Rajasthan and Ors., with connected matters
Case Citation: 2022 LiveLaw (Raj) 12
The Rajasthan High Court, Jaipur Bench has directed the Nagar Palika, Kotputli to decide the objections submitted by 25 petitioners pursuant to the notices issued to them for removal of road encroachment. Justice Inderjeet Singh directed the authority to pass reasoned and speaking order within a period 30 days.
"I deem it just and proper to direct the respondent-Nagar Palika to decide the objections submitted by the petitioners pursuant to the notice issued to them, by reasoned and speaking order within a period 30 days," the order stated.
The writ petition was filed by the 25 individuals, all residents of Kotputli District in Jaipur, being aggrieved by the notices issued to them by the respondent-Nagar Palika, Kotputli in Dec 2021 for removal of encroachments from the road.
Case title: Smt Garima Sauda v. Goverdhan Singh and others
Case Citation: 2022 LiveLaw (Raj) 13
The Rajasthan High Court has observed that merely stating that a particular proceeding had lingered on before the Court for an unduly long period of time, cannot be seen as contemptuous.
Observing this, the Chief Justice Mr. Akil Kureshi and Justice Rekha Borana terminated a Contempt Petition filed by a Rajasthan Civil Judge, Garima Sauda against a practicing Advocate, Goverdhan Singh.
The case of the judicial officer was that in relation to a criminal case that was pending before her, Singh had made a highly objectionable comment on his Facebook page and several people had responded to that comment, and the same were also objectionable and contemptuous
Case Title: Abhimanyu Sharda and Ors. v. State of Rajasthan and Ors., with connected matters
Case Citation: 2022 LiveLaw (Raj) 14
The Rajasthan High Court, Jaipur Bench, has held that the interference of the Court in tender matters is very restrictive and it should refrain from interfering in the impugned policy decision of the government, pertaining to sale of Run of Mine Lignite.
Justice Inderjeet Singh, while dismissing the plea, ruled, "In formulating the conditions of tender document, greater latitude is required to be conceded to the State Authorities and if the State or its instrumentalities act reasonably, the interference of the Courts is very restrictive since no person can claim fundamental right to carry out business with the Government".
Case Title: Pragya Prateek Shukla and another v. State Of Rajasthan, Through PP
Case Citation: 2022 LiveLaw (Raj) 15
The Rajasthan High Court suspended the sentence awarded to a Faculty Member in the college and the Hostel Warden booked under Section 21 of the POCSO Act (among other offences) for their alleged failure to report a 'POCSO Case' of the hostel involving a minor girl, as it noted thus:
"Incidents are not uncommon where after deliberations, it is decided in a bonafide manner not to report such matters to the police, lest the reputation of the girl is tarnished. This aspect gains more importance because the hostel warden/higher-ups would definitely have preferred to deliberate with the parents of the girl before taking any such action."
Case Title: Income- Tax Contigent Employees Union and Anr. v. Union Of India and Ors.
Citation: 2022 LiveLaw (Raj) 16
The Rajasthan High Court has held that a writ petition filed in representative capacity without proper authorization or resolution is not maintainable.
A division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani, observed, "We are of the firm view that the writ petition has been filed without proper authorization/resolution and hence, the same is not maintainable."
In furtherance, the court dismissed the writ petition purportedly filed on behalf of Income Tax Contingent Employees Union as not maintainable, in the absence of proper authorization.
Case Title: LNJ Power Ventures Ltd. v. Rajasthan Electricity Regulatory Commission and Ors.
Citation: 2022 LiveLaw (Raj) 17
The Rajasthan High Court has reiterated that power of judicial review vested in High Courts under Article 226 of the Constitution of India is one of the basic features of the Constitution and any legislation cannot override or curtail such jurisdiction.
Justice Pushpendra Bhati further held that High Courts, while exercising the power under Article 226, would take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.
Case Title: Suresh Thanvi v. State Of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 18
The Rajasthan High Court has ruled that land reserved for the public park in question shall not be allowed for commercial purposes like marriages/ parties etc. The decision was delivered in a public interest litigation filed by one Suresh Thanvi.
A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed, "It is hereby directed that the respondent No.2 Municipal Corporation, Jodhpur shall ensure that the land in question shall be strictly used as a public park and no deviation shall be permitted in this regard. No commercial activities viz. marriages/ parties, etc. shall be allowed thereupon".
Case Title: Sheela Dhobi v. Satish
Citation: 2022 LiveLaw (Raj) 19
The Rajasthan High Court has allowed a joint application filed by the petitioner-wife and the respondent-husband for waiver of six months cooling off period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 for divorce by mutual consent.
Justice Dinesh Mehta, observed, " In light of the facts and circumstances of the case, particularly the fact that the parties are sufficiently educated and are aware of their rights...as they have mutually decided to end their matrimony finding no hope/chance of reconciliation, I am of the opinion that their application for waiver of the statutory period of six months specified under Section 13-B(2) of the Act of 1955 deserves acceptance."
The parties had approached the court after being aggrieved with the order passed by the Family Court, Bhilwara, which on 16 Dec, 2021 dismissed the aforesaid prayer of the parties.
Case Title: Shobha Devi v. Jodhpur Vidhyut Vitran Nigam Limited and Anr.
Citation: 2022 LiveLaw (Raj) 20
In a significant judgment, the single bench of Rajasthan High Court held that the married daughter of a deceased employee falls within the definition of 'dependents' for compassionate appointment.
"The perception of the daughter, after marriage no longer being a part of her father's household and becoming an exclusive part of her husband's household, is an outdated view and mindset."Justice Dr. Pushpendra Singh Bhati, observed.
The court observed that any discrimination between unmarried & married daughter and married son & married daughter would be in clear violation of Article 14 ,15 and 16 of the Constitution.
Case Title: Kailash Chandra Agarwal v. State of Rajasthan and Ors., with connected matters
Citation: 2022 LiveLaw (Raj) 21
The Rajasthan High Court has recently observed that the employees of Central Co-Operative Bank, who remained out of service due to the latter's 'illogical' decision reducing the age of superannuation, are entitled to the salary for the said period. The Bank had passed a resolution, reducing the superannuation age from 60 to 58 years.
Justice Rekha Borana, observed, "Petitioners would be entitled to the salary for the period during which they remained out of service. The same shall be paid to them within a period of three months from the date of receipt of the copy of this order".
While allowing the petition, the court ruled that if the salary is not paid within the said period, it would then be payable along with an interest at the rate of 6% per annum.
Case Title: Naresh Kumar v. State of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 22
The Rajasthan High Court has observed that validity of an order passed by the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be examined in a writ of habeas corpus.
A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta made it clear that such an order passed under the JJ Act is valid and thus, the person cannot be said to be under illegal confinement for the purpose of issuing a writ of habeas corpus.
" It is trite to state that validity of an order passed by the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be examined in a writ of habeas corpus. Apparently, as the corpus has been sent to the Balika Gruh, Jodhpur under a valid order of the Child Welfare Committee in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015, she is not under any kind of illegal confinement."
The present habeas corpus petition has been filed by the petitioner seeking a direction for production of one Mst. 'P', claiming that she is his legally wedded wife and that she has been wrongfully confined.
Case Title: Lahar Kanwar v. State of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 23
The Rajasthan High Court has directed the state government to decide on a war widow's plea seeking grant of possession and document of title of the land allotted to her in 1991, under the relevant scheme.
Justice Dinesh Mehta observed that the petitioner is the widow of a martyr, who sacrificed his life for safety and dignity of the country. Thus, the least the State can do is either hand over the possession of the allotted land or search for an alternate piece of land.
It directed the petitioner to file a representation before the District Collector, Pali and the Sub-Divisional Officer, Bali along with relevant documents and order copy of the Court's decision within two weeks.
Case Title: Anita Suthar v. State of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 24
A division bench of Rajasthan High Court observed that special bona fide residence is to be reckoned from the native place of residence of candidate & his parents and has nothing to do with marriage.
Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed, "Special bona fide residence or residence is to be reckoned from the native place of residence of the candidate and his parents. It has nothing to do with marriage."
The court opined that the respondents cannot deny the petitioner Special Bonafide Resident Certificate (TSP Area) simply because she has moved out of Tribal Sub Plan (TSP) Area, as a consequence of her marriage.
Case Title: Tej Singh and Ors. v. The State of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 25
The Rajasthan High Court has observed that writ petition against rejection of temporary injunction application by trial court is not maintainable under Articles 226 and 227 of the Constitution.
Justice Dinesh Mehta, observed, "A writ petition against rejection of TI application by the trial Court is not maintainable under Articles 226 and 227 of the Constitution, as a hierarchy of appellate authorities have been provided in the (Rajasthan Tenancy) Act of 1955".
In the present matter, the petitioners had instituted a suit for declaration of rights under Section 88 along with an injunction application under Section 212 of the Rajasthan Tenancy Act 1955. The same was however rejected by the trial Court vide order dated 29.12.2021.
Case Title: Bhagwati Prasad v. The Principal Secretary, Department Of Mines And Geology and Ors.
Citation: 2022 LiveLaw (Raj) 26
The Rajasthan High Court has asked the authorities concerned to objectively examine the grievances raised in a writ petition pertaining to discharge of industrial effluents in the Railmagra Dam and take appropriate action within a period of two months.
A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta directed that the authorities shall be served a copy of the writ petition in the form of a representation. These authorities include Chief Engineer, Water Resources Department, Government of Rajasthan, Jaipur; the Rajasthan State Pollution Control Board, Jaipur and the Krishi Vigyan Kendra, Rajsamand.
The bench further ruled, "Upon receiving the same, these authorities shall objectively examine the petitioners' grievances and pass a reasoned order/ take appropriate action thereupon, within a period of two months from the date of submission thereof."
Case Title: Tax Bar Association and Anr v. Union Of India and Anr
Citation: 2022 LiveLaw (Raj) 27
The Rajasthan High Court has expressed its disinclination to entertain a public interest litigation seeking direction to the Income Tax Department to remove all the defects and glitches on its official portal. The court left it on the administration to deal with the issues at its level.
A division bench of Chief Justice Akil Kureshi and Justice Rekha Borana observed, " At this stage, we leave it to the administration to deal with these issues at its level. We are hopeful that proper resolution of the difficulties of assessees would be made at the level of the administration itself without the requirement of Court's intervention."
Case Title: Dr. Gopal Choudhary v. UG/PG Ayush Counseling Board and Ors.
Citation: 2022 LiveLaw (Raj) 28
The Rajasthan High Court has directed the Ayush Counseling Board to allot appropriate college to the petitioner, an Ayurveda aspirant, against the vacant seats, for pursuing his PG course in the academic Session 2020-21.
Justice Dinesh Mehta, observed, " This Court is of the view that interest of justice would be better served if the petitioner is accorded admission in Ayurveda PG course. Keeping the seats vacant serves nobody's cause – it is a wastage of resources."
Case Title: Smt. Sayari and Ors. v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 29
While taking a lenient view, a Division Bench of Rajasthan High Court reduced sentence awarded to an 82 year old woman charged under 498A IPC to the period already served by her which is nearly two and half months.
Justice Sandeep Mehta and Justice Vinod Kumar Bharwani observed, "We are of the view that as appellant Sayari has already attained the age of 82 years, the sentences awarded to her be reduced to the period already undergone by her which is nearly two and half months".
Affirming the conviction of the woman, the court ordered that for the offence under Section 498A IPC, as recorded by the trial court and passed by the learned Additional Sessions Judge, Sojat, Pali, the sentence awarded to the appellant be reduced to the period already undergone by her..
Case Title: The National Insurance Co. Ltd, through its Regional Manager, Jaipur v. Mohini Devi & Ors.
Citation: 2022 LiveLaw (Raj) 30
Case No: S.B. Civil Miscellaneous Appeal No. 615/2007
Rajasthan High Court has recently ruled that appeal under Section 30 of the Workmen's Compensation Act, 1923 is not maintainable in absence of framing any substantial question of law.
Justice Anoop Kumar Dhand, while dismissing the appeal, observed, "I do not find any ground to call for any interference on the factual findings recorded by the learned Commissioner. Since no substantial question of law has been formulated in the memo of appeal, hence, this appeal is not maintainable in view of the proviso attached to Section 30 of the Act of 1923."
The court pursued the proviso attached to Section 30 of the Act of 1923 and observed that appeal shall lie against any order passed by the learned Commissioner unless a substantial question of law is involved in the appeal.
Case Title: Shyam Seva Samiti v. State of Rajasthan and Ors.
Citation: 2022 LiveLaw (Raj) 31
A division bench of Rajasthan High Court observed that mere formation of a committee cannot take away rights of a private college/institution, which is otherwise eligible and entitled for enhancement of the intake capacity.
The court opined that the decision of forming a five member committee of the Ministers of the State Government, in order to take policy decisions in relation to establishment of and setting standard for private colleges, is absolutely misplaced.
The court observed that the state's action of not permitting the enhancement of the intake capacity of the petitioner institution is arbitrary and illegal.
Case Title: Meeta Agarwal v. Hathroigari Grah Nirman Sehkari Samiti and Ors.
Citation: 2022 LiveLaw (Raj) 32
A single bench of Rajasthan High Court, Jaipur observed that under section 21 of Civil Procedure, Code, 1908, the objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity.
Justice Sudesh Bansal, ruled, "It is settled position of law as per Section 21 of the Code of Civil Procedure that the objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity".
Notably, the court observed that adjournments in the suit should not be granted without just cause and when unnecessarily warranted be, by a reasoned order or on a proper application in writing there being filed to the satisfaction of the trial Court.
Case Title: Anupama Singh v. Badri Narayan Sharma & Ors.
Citation: 2022 LiveLaw (Raj) 33
The Rajasthan High Court, Jaipur Bench has observed that a contempt proceeding would not be maintainable, if two interpretations are possible, and if the action in question is not contumacious.
The judgment was delivered in the contempt plea filed for non-compliance of court's order which granted appointment and consequential benefits to the petitioner, a female health worker.
Justice Sudesh Bansal, ruled, "It is not in dispute that as far as directions to allow the petitioner to join services as Female Health Worker had already been complied with and further according to the respondents, the consequential benefits flowing pursuant to the order of appointment of petitioner dated 08.07.2000 have also been accorded vide order dated 25.10.2011".
34. Rajasthan High Court Upholds Section 54 CGST Act Pertaining To Tax Refund
Case Title: M/s Triveni Electrodes v. Union Of India and Ors.
Citation: 2022 LiveLaw (Raj) 34
The Rajasthan High Court, Jaipur Bench has upheld the vires of Section 54 of the Central Goods and Services Tax Act, 2017 and Rajasthan Goods and Services Tax Act, 2017. The same pertains to Refund of tax.
Noting that the Supreme Court has already upheld the vires of the statutory provision in question, the division bench comprising Chief Justice Akil Qureshi and Justice Sameer Jain, observed,
" We may note one development, namely, that the Supreme Court in the Union of India and others Vs. VKC Footsteps India Pvt.Ltd. , has upheld the vires of the statutory provisions under consideration. That being the situation, the petitioner's challenge to the statutory provisions must come to an end ".
Case Title: United India Insurance Company Ltd v. Smt Soniya
Citation: 2022 LiveLaw (Raj) 35
The Rajasthan High Court, Jaipur upheld the decision of Motor Accident Claims Tribunal (MACT), Alwar which, while relying on the 'principle of pay and recover', directed the insurance company to first pay compensation to the claimants and then recover the same from the vehicle owner.
Justice Sudesh Bansal, observed, "Insurance Company has miserably failed to prove that the declaration of cancellation/ nullifying the driving licence of the Driver was ever brought to the knowledge of the owner of vehicle and it is not proved that the owner was guilty of negligence in not following the due care and caution to fulfil the conditions of the insurance policy, therefore, the Tribunal has not committed any error of law in following the principle of "pay and recover".
Case Title: Mohan Lal S/o Okha Ram v. State
Citation: 2022 LiveLaw (Raj) 36
The Rajasthan High Court observed that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt.
The observation was made while hearing an appeal under Section 374(2) Cr.P.C against the judgment of the trial court, whereby appellants were convicted and sentenced with life imprisonment.
A division of Justice Sameer Jain and Justice Sandeep Mehta, observed, "It is clear that the burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities and such a defence need not be proved beyond all manner of doubt. Thus, the conclusion drawn by the trial court that the defence failed to prove that the accused was affected with such mental ailment, which prevented him from understanding the consequences of his acts, is totally unjustified".
Case Title: Parul Khurana v. The High Court of Judicature for Rajasthan & Anr.
Citation: 2022 LiveLaw (Raj) 37
The Rajasthan High Court observed that there is nothing in law that permits a candidate to apply in the 'Divorcee Female' category in the expectancy that a divorce decree would be granted by the Court.
A division bench of Justice Vinod Kumar Bharwani and Justice Sandeep Mehta, observed,
"For a person, applying in the said category, the status of being divorced was imperative. There is nothing in law which can permit a candidate to apply in the said category in the expectancy that a decree would be granted".
The petitioner had filed a writ petition assailing the notice whereby her candidature was rejected as she did not possess the decree of divorce on the last date of submission of the online application form for the post of Stenographer Grade-III (Hindi and English) in the District Courts and the District Legal Services Authorities.
Case Title: M/s S.k. Metal v. Assistant Commissioner, B II Enforcement Wing II, Department Of Commercial Taxes
Citation: 2022 LiveLaw (Raj) 38
The Rajasthan High Court has dismissed a plea challenging the vires of Section 70 of Rajasthan GST Act, 2017 which provides for Power to summon persons to give evidence and produce documents.
After perusing the provision, the division bench of Chief Justice Akil Kureshi and Justice Sameer Jain ruled, " The provision thus while empowering the proper officer to summon a person to give evidence or to produce documents, controls such exercise of powers by providing that the summons may be issued where a proper officer considers it necessary that such person is required to give evidence or to produce certain documents. These powers are not thus unguided or uncanalised."
The court recalled that Section 14C of the Central Excise Act and Section 108 of the Customs Act contain similar provisions authorizing the appropriate officer with the power to summon attendance of a witness for recording statement or for production of documents.
Case Title: Dr. Neha Choudhary v. State of Rajasthan
Citation: 2022 LiveLaw (Raj) 39
A division bench of Rajasthan High Court dismissed an appeal filed by several doctors directing the respondent authorities to consider their experience of service in Government hospitals of remote and difficult areas till 31.10.2021, instead of 30.09.2021.
Chief Justice Akil Kureshi and Justice Sameer Jain, observed, "The policy of the State is to grant incentive. No candidate has a vested right to claim such incentives, that too dehors the State policy. Such cut off date cannot be kept fluctuating. The date of counselling would depend on several factors. The suggestion that experience gained by the candidate right till the first date of counseling is therefore not acceptable. There is yet another angle to this issue."
The court opined that grant of incentive itself is a policy matter and based on the discretion of State authorities and any extension for considering the experience is also part of such discretionary exercise of the powers. The court added that unless it is shown that such discretion is exercised arbitrarily or malafidely this Court would not interfere in such policy matters.
40. Rajasthan Judicial Services: High Court Dismisses Plea Challenging Answer Key Of 2021 Prelims Exam
Case Title: Ashwini Chaturvedid v. High Court Of Judicature For Rajasthan, Jodhpur, Through Its Registrar General
Citation: 2022 LiveLaw (Raj) 40
The Rajasthan High Court has dismissed a plea challenging the final results of the Civil Judge Cadre of Rajasthan Judicial Services (Preliminary Examination).
The exam was conducted on 28.11.2021 and the final result for the same was declared on 11.01.2022.
The present plea was filed by one Ashwini Chaturvedi. She had challenged the administration's decision on the correct choice in relation to question No.80 and its decision to delete question No.81, through which the petitioner missed out clearing the RJS preliminary examination's cut-off only by 1 mark.
A division bench of Justice Akil Kureshi and Justice Madan Gopal Vyas, observed, " We do not think that the petitioner has made out any case for interference. As is well settled through series of judgments of the Supreme Court, interference by the High Court in specialized fields where recruitment is being made through specialized agencies, should be the minimum."
Case Title: Sudesh Taneja v. Income Tax Officer, and connected matters
Citation: 2022 LiveLaw (Raj) 41
Providing relief to a batch of petitioners, the division bench of Rajasthan High Court quashed notices issued by the Assessing Officers under section 148 of the Income Tax Act, 1961 (Act of 1961) for reopening assessments for various assessment years.
The petitioners have also challenged portions of two notifications issued by CBDT clarifying that provisions of Sections 148, 149 and 151 of the Act as on 31.03.2021 shall apply for the purpose of issuance of notice under Section 148 for the past period. According to the petitioners, this explanation is beyond the jurisdiction of CBDT.
Chief Justice Akil Quresh and Justice Sameer Jain ruled, "A notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid."
Case Title: Yogesh Goyanka v. Govind and Ors.
Citation: 2022 LiveLaw (Raj) 42
The Rajasthan High Court has recently observed that alienation of a property during pendency of a suit is null and void and hence, an application filed by the subsequent purchaser for impleadment as a necessary and proper party is not untenable in law.
Justice Sameer Jain, observed, "The provisions of Section 52 of the Transfer of Property Act and the judgments cited at bar by learned counsel for the respondents, in loud voice, have held that alienation having been made in favour of any party during pendency of the suit, was hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and hence, the said transaction is nullity, illegal and void and the Hon'ble Apex Court has further held that in the said situation, the application filed by the subsequent purchaser for impleading as necessary and proper party is not tenable."
Essentially, as per the petitioner, he along with proforma-respondents purchased a land from one Rajani Upadhaya and was never informed about pendency of suit for cancellation of sale deed which was executed in favour of the latter.
Case Title: Rajasthan Marudhara Gramin Bank Jodhpur, Through Its Chairman v. The Appellate Authority Under Payment Of Gratuity Act 1972, And The Deputy Chief Labour Commissioner (Central), Ajmer (Raj.)
Citation: 2022 LiveLaw (Raj) 43
The Rajasthan High Court has observed that an employee must receive gratuity, either under the Payment Of Gratuity Act 1972 or under the Regulations framed by the bank, whichever is more beneficial. However, an employee can not choose computation of gratuity under one statute and seek benefits of other provisions under another statute.
The observation was made by a division bench of Chief Justice Akil Qureshi and Justice Rameshwar Vyas while dealing with a clutch of petitions raising a question as to whether employees of the Gramin Bank can claim benefits the 1972 Act or under Rajasthan Marudhara Gramin Bank (Officers and Employees) Service Regulations, 2010, or both.
It held,
"the scheme of gratuity under the Act of 1972 and under the regulations framed by the bank are different. For example, the Act of 1972 prescribes the ceiling beyond which the gratuity would not be paid irrespective of the computation. There is no such ceiling prescribed under the regulations. However, the regulations have other inherent limitations in computation of gratuity such as the gratuity computation would not exceed 15 months' salary upto 30 years of service, after which an additional benefit of half month's salary would be added to the payable gratuity. The employee, therefore, can claim gratuity either under the Act of 1972 or under the regulations framed by the bank, but cannot claim the benefit under both the statutes."
Other Important Updates from Rajasthan
Case Title: Hemant Bohra v. Union of India; Civil Writ Petition No. 17
The Rajasthan High Court has issued notice on a plea challenging the constitutionality of Sections 95, 97 and 99 of the Insolvency Bankruptcy Code, 2016.
The division bench of Chief Justice Akil Kureshi and Justice Rameshwar Vyas observed, "Since the provisions of the law framed by the Parliament are under challenge, we therefore issue notice to the learned Additional Solicitor General".
The matter is fixed for hearing on February 7, 2022.
The petition is filed by one Hemant Bohra, who is a guarantor and against whom the proceedings under the Insolvency and Bankruptcy Code, 2016 have been instituted.
2. COVID Omicron: Rajasthan High Court To Have Only Virtual Hearings From January 5 to January 14
Considering the instant surge in Covid-19 cases and the spread of its highly infectious Omicron variant during the last couple of weeks and the preventive measures adopted by the State Government, the Rajasthan High Court has decided to have only virtual hearings from January 5, to 14, 2022.
This decision has been taken for the safety and security of all concerned, a notification issued in this regard states.
During this period, as far as possible, only 75% of the court staff will be called to attend the office on a rotational basis. The remaining staff shall work from home and shall not leave the headquarters without prior permission of the concerned Authority.
Case Title: Asha v. Union of India
In the case pertaining to burial of an Indian citizen in Russia, the Rajasthan High Court was yesterday informed that his body will be exhumed and repatriated to India for enabling the deceased man's family to perform his last rites.
Justice Dinesh Mehta asked both Union and State to make necessary arrangements and ensure that the dead body of an Indian Citizen is handed over to family members at their Village Godwa, Tehsil Kherwara at the earliest.
The bench ordered, "Once the body is received from the Russian Government, Union of India, so also the State of Rajasthan will make all endeavors to ensure that it is handed over to the petitioners- family members at their Village Godwa, Tehsil Kherwara at the earliest."
Case title: Bhagwati Singh (Since Deceased) S/o (Late) Shri Raja Mansingh v. Raja Laxman Singh S/o (Late) Shri Raja Mansingh and connected matter
The Rajasthan High Court has issued a notice to the Central and State Governments asking as to whether any person can put Maharaja, Raja, Nawab, Rajkumar titles as a prefix while filing cases in the High Court or Trial Court.
The Bench of Justice Sameer Jain has sought the reply of the Union and Rajasthan Government after perusing the cause title of a petition, wherein, the Court noted, the respondent No.1 in the matter was titled as "Raja Laxman Singh".
At the outset, the Court referred to the 26th Amendment in the Constitution of India, Article 363-A, and Article 14 [Equality before law] to stress that recognition, titles granted to the rulers of the Indian State no more persist and have been abolished.
5. Deliberate And Wilful Non-Compliance Of Undertaking Is Contempt Under Contempt Of Court Act
Case Title: Ishwardas Alias Ishwar S/o Late Shri Ramchand v. Dr. Heeranand S/o Late Shri Hansaram through LRs
A single bench of Rajasthan High Court, Jaipur Bench observed that breach of written undertaking given to the Court is contempt and is liable to be punished under the Contempt Courts Act, 1971.
Justice Sudesh Bansal, ruled, "As per Definition of civil contempt, described in Section 2 (b) of the Contempt of Court Act 1971, the civil contempt means willful disobedience of any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court. In the present case, the respondents have breached the written undertaking given to the Court. Therefore, they are prima facie guilty for committing contempt and liable to be punished under the Contempt Court Act, 1971.
In the present case, a contempt petition is filed alleging deliberate and willful non-compliance of the undertaking, given dated Oct 30, 2019 by the respondents-contemnors - Tulsi Meerchandani and Sehjanand - for vacating the rented shop and handing over the possession of rented shop on or before Oct 13, 2021, pursuant to the final judgment and order of Single Bench in 2019.
Case Title: Sunita Gurjar v. State of Rajasthan
A single bench of Rajasthan High Court, Jaipur directed the state to keep a constable post vacant in constable recruitment exam 2019 under MBC female category for a candidate wrongly denied benefit of 4 marks for LLB degree, till further orders.
Justice Mahendar Kumar Goyal, observed, "Taking into consideration the contentions advanced by the learned counsel for the petitioner and the material on record, this court directs the respondents to keep one post of Constable under the MBC female category vacant, till further orders".
The court issued notice after hearing the petitioner on interim relief.
Case title - Karan Sen v. State of Rajasthan
The Rajasthan High Court is set to examine the question as to at which stage in a criminal proceeding, an accused having evident proof to show that he has been falsely implicated in a POCSO matter, can move an application under Section 22 of the POCSO Act, which deals with Punishment for false complaint or false information.
Essentially, the Bench of Justice Uma Shankar Vyas has issued a notice to the State of Rajasthan and original complainant while dealing with a criminal revision petition filed by one Karan Sen challenging the order of the Special POCO court no. 1 Jaipur Metro taking cognizance of offences under the POCSO Act against the petitioner.
8. Rajasthan High Court Stays Constructions Within 1 Km Of Kumbhalgarh Forest Reserve
Case title - Rituraj Singh Rathore v. State Of Rajasthan & Ors.
The Rajasthan High Court has stayed all construction activities being undertaken within a distance of 1000 meters from the boundary of the Kumbhalgarh Forest Reserve.
The bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani has also clarified that the Principal Secretary, Department of Tourism and District Collector, Rajsamand and Pali shall be personally responsible for ensuring compliance of the court's order.
Case title - Ishwar Prasad Khandelwal v. Shri Niranjan Kumar Arya and another
The Rajasthan High Court on Tuesday issued a notice to Chief Secretary, State Of Rajasthan and Principal Secretary Department Of Women And the Child Development State Of Rajasthan on a contempt plea filed regarding vacant posts in Rajasthan State Commission For Women.
The bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani was hearing the contempt plea filed by a social worker Ishwar Prasad Khandelwal alleging that the state government had not taken any steps to constitute the Board of The Rajasthan State Commission for women in the state, despite giving an assurance in this regard before the Court.
In view of the prevailing situation and spread of Covid-19, the Rajasthan High Court has decided to continue the functioning of all Subordinate Courts, Special Courts & Tribunals only through virtual mode till 29 Jan, 2022.
As per the circular, the aforesaid step was taken for the safety and security of all concerned.
The circular reads, "In view of the prevailing situation and spread of Covid-19, for safety and security of all concerned, it is hereby notified that all the Subordinate Courts/ Special Courts/ Tribunals shall continue to function only through virtual mode till 29.01.2022"
The Rajasthan High Court has conferred senior designation on 26 Advocates in exercise of the powers conferred under Section 16(2) of the Advocates Act, 1961 and the Rajasthan High Court (Designation of Senior Advocates) Guidelines- 2019.
The list comprises of only one women Advocate, i.e. Gayatri Rathore, who is designated from Jaipur Bench.
Moreover, 11 Advocates are from the Principal Bench of Jodhpur, while 15 Advocates are from Jaipur Bench.
Case Title: Samriddhi Saraswat v. National Medical Commission
The Rajasthan High Court, Jaipur Bench, has issued notice on a plea challenging regulations of the Medical Council of India (MCI) for foreign medical students, requiring them to compulsorily undergo minimum 54 months medical education for grant of permanent registration in India.
A division bench of Chief Justice Akil Kureshi and Justice Sameer Jain were hearing the plea filed by one Samriddhi Saraswat, who is pursuing a medical course in an institution situated in Philippines. She claimed that her institution is recognized as per Section 39 of the National Medical Commission Act, 2019.
Medical Council of India has now framed regulations, namely of National Medical Commission (Foreign Medical Graduate Licentiate) Regulations, 2021, in which regulation 4 provides inter-alia that no medical graduate shall be granted permanent registration unless he has undergone a course leading to foreign medical degree with minimum duration of 54 months.
Amidst the rising threat of the third wave of Covid-19, the Rajasthan High Court has further extended its decision of functioning of its Principal Bench and Jaipur Bench only through virtual mode till 5 February 2022.
In addition, the Registrar General of the Rajasthan High Court also issued a circular notifying the extension of virtual hearing at Subordinate Courts, Special Courts and Tribunals in Rajasthan till 5 February 2022.
The circular reads,
"Considering the prevailing situation and spread of Covid-l9, for safety and security of aII concerned, it is hereby notified that aII the Subordinate Courts/Special Courts/Tribunals shall continue to function only through virtual mode till 05.02.2022 in terms of Circular No. 03/P.I./2022 dated 11.01'2022."
Case Title: Pratip Chadhuri S/o Shri Pramada Nath Chaudhuri v. State of Rajasthan
The Rajasthan High Court has stayed criminal proceedings against former SBI Chairman Pratip Chaudhuri, pending before the Chief Judicial Magistrate, Jaisalmer in connection with the Loan Scam Case.
Chaudhuri was arrested in November last year by the Jaisalmer Sadar Police from his house in Delhi. The arrest relates to seizure of two hotels of the Godawan Group by SBI during Chauhuri's tenure over non-repayment of Rs. 24 Crore loan, and their subsequent loan to Alchemist ARC company, which he joined as Director after his retirement.
The trial court took cognizance against the petitioner and other co-accused persons for the offences under Sections 420, 409 read with Section 120-B IPC.
Case Title: Consumer Unity & Trust Society, Jaipur v. State of Rajasthan & Ors
The National Green Tribunal, Bhopal Bench has asked the Rajasthan government to comply and follow the guidelines with respect to prevention of noise pollution, issued by its Principal Bench, the Supreme Court and the Central Pollution Control Board.
The direction was made in an application been filed by Consumer Unity & Trust Society, Jaipur regarding rampant noise pollution in the State which majorly emanates from vehicles either through incessant use of horns and modified exhausts.
Reliance was placed on Hardeep Singh v. South Delhi Municipal Corporation whereby the Principal Bench of NGT had issued directions to ensure that the noise pollution norms are enforced at the ground level for "protection of public health and the environment."
