Allahabad High Court Weekly Round-Up: August 7 to August 13, 2023

Social Forum on Human Rights vs. State of U.P. & Another 2023 LiveLaw (AB) 247

Amit Kumar vs. State of UP & 2 Others 2023 LiveLaw (AB) 248

State of U.P. vs. Har Dayal Singh And Others 2023 LiveLaw (AB) 249

M/S Bansal Construction Office v. Yamuna Expressway Industrial Development Authority And 2 Others 2023 LiveLaw (AB) 250

Jitendra Singh Visen and Others vs. State of UP and Others 2023 LiveLaw (AB) 251

Mahendra Pal vs. State Of U.P. Thru. Prin. Secy. Cooperative Lko. And 5 Others 2023 LiveLaw (AB) 252

Reena Bagga and Another vs. State of UP and 2 Others 2023 LiveLaw (AB) 253

Ajay Yadav vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 254

ORDERS/JUDGMENTS OF THE WEEK

Allahabad High Court Refuses To Entertain PIL Alleging Illegal Arrests, Action For Breach Of Peace Against Social Workers

Case Title: Social Forum on Human Rights vs. State of U.P. & Another [PIL No. 1308/2023]

Case Citation: 2023 LiveLaw (AB) 247

The Allahabad High Court refused to entertain a PIL moved by NGO Social Forum on Human Rights, challenging alleged misuse of powers under the ‘Police Commissionerate System’ by the Uttar Pradesh police against social workers.

A bench comprising Justices Ashwani Kumar Mishra and Syed Aftab Husain Rizvi orally advised the Petitioner that persons facing actions under Sections 107, 116 and 151 of CrPC have alternate remedies available to them and a PIL to this effect would not be maintainable. Following this, the plea was withdrawn.

Transfer Order Allegedly In Violation Of State Policy Cannot Be Challenged In Writ Jurisdiction: Allahabad High Court

Case Title: Amit Kumar vs. State of UP & 2 Others [Writ A No. 11797/2023]

Case Citation: 2023 LiveLaw (AB) 248

The Allahabad High Court has held that a transfer order alleged to be passed in violation of State policy cannot be challenged in writ jurisdiction since no statutory right is affected. State policies are administrative in nature and are distinguishable from statutory laws made by the legislature, it held.

“Transfer is indeed an exigency of service and interference by this Court in exercise of our writ jurisdiction under Article 226 of the Constitution of India is permissible only in the event that the transfer is actuated by malafides in fact or is vitiated by malafides in law. Still, there is one more avenue, where this Court can interfere with a transfer order, and, that is where the transfer order is in breach of a statutory rule. However, in no event a transfer order can be interfered with on the ground of infraction of the State's transfer policy,” held Justice JJ Munir.

'Trial Court Took A Reasonable View': Allahabad High Court Upholds Acquittal Of Three In 40 Year Old Murder Case

Case title - State of U.P. vs. Har Dayal Singh And Others [GOVERNMENT APPEAL No. - 1873 of 1984]

Case Citation: 2023 LiveLaw (AB) 249

While dealing with an appeal of the State Government, the Allahabad High Court upheld the acquittal of three accused persons under Section 302 of IPC on the ground that the trial court took a reasonable view in the case, which dates back to the year 1983.

Referring to the Supreme Court's ruling in the cases of Chandrappa vs. State of Karnataka (2007) and Dhanapal and Others vs. State (2009) concerning the principles regarding powers of the appellate court while dealing with the appeal against an order of acquittal, the bench of Justice Surya Prakash Kesarwani and Justice Nand Prabha Shukla upheld the order of the acquittal passed by the Session Judge, Sahajahpur in the year 1984.

Ineligibility Of Arbitrator As Per S.12(5) Arbitration Act Can't Make Arbitration Clause Itself Invalid: Allahabad High Court:

Case Title: M/S Bansal Construction Office v. Yamuna Expressway Industrial Development Authority And 2 Others 2023 LiveLaw (AB) 250 [Arbitration And Conciliation APPL.U/S11(4) No. - 142 of 2019]

Case Citation: 2023 LiveLaw (AB) 250

The Allahabad High Court has held that the entire arbitration agreement will not cease to exist merely because the procedure of appointment of the arbitrator, as stated in the agreement, is barred by Section 12(5) of the Arbitration and Conciliation Act, 1996.

“Section 12(5) of the Act read with 7th Schedule has been introduced so as to lend greater legitimacy to the process of arbitration by providing for an independent person to act as arbitrator and exclude the other party from becoming a judge in their own cause,” observed Justice Ashwani Kumar Mishra.

Allahabad High Court Dismisses As Withdrawn PIL Seeking Sealing Of Gyanvapi Mosque Premises, Ban On Entry Of Non-Hindus

Case title - Jitendra Singh Visen and Others vs. State of UP and Others 2023 LiveLaw (AB) 251 [PIL- 1776/2023]

Case Citation: 2023 LiveLaw (AB) 251

The Allahabad High Court allowed the withdrawal of a Public Interest Litigation (PIL) plea seeking a direction to the Uttar Pradesh Government to seal the entire Gyanvapi Mosque premises w/o affecting the ASI Survey order of the Varanasi Court that has been upheld by both, the Allahabad HC and the Supreme Court.

The PIL plea, which also sought a ban on entry of non-Hindus at the disputed site, had been moved by Chief of the Vishwa Vedic Sanatan Sangh (VVSS), Jitendra Singh Visen, Rakhi Singh (Plaintiff no. 1 in the Shringar Gauri Worshipping suit 2022) and others through Advocate Saurabh Tiwary.

Fresh Representations Do Not Revive Stale Claims: Allahabad High Court Reiterates

Case Title: Mahendra Pal vs. State Of U.P. Thru. Prin. Secy. Cooperative Lko. And 5 Others 2023 LiveLaw (AB) 252 [WRIT - A No. - 5351 of 2023]

Case Citation: 2023 LiveLaw (AB) 252

The Allahabad High Court has held that representations made after lapse of time cannot revive stale claim. Rejection of such representations cannot be challenged before the Court under Article 226 of the Constitution of India, it held.

Relying on the decision of the Supreme Court in the State of Tripura and others v. Arabinda Chakraborty and others and other cases, Justice Abdul Moin held

“…merely because representations have been submitted by an employee which came to be decided, the decision would not entail revival of stale claim.”

In A Rare Tiebreaker, Allahabad High Court Grants Interim Protection To Indiabulls Officers In FIRs By Shipra Group

Case Title: Reena Bagga and Another vs. State of UP and 2 Others [Criminal MISC. Writ Petition No. – 11837/2023] and Himri Estate Pvt. Ltd. and 4 Others v. State of UP and 2 Others [Criminal MISC. Writ Petition No. – 11838/2023]

Case Citation: 2023 LiveLaw (AB) 253

Settling conflicting views regarding the stay of FIR lodged by the Director of Shipra Estate against officers of Indiabulls Housing Finance Ltd. over disputes in a loan facility availed by them- without granting time to the Advocate General and counsel for the complainant for seeking instructions- the Allahabad High Court has ruled that it is a fit case for grant of interim protection.

Justice Samit Gopal, the third judge to whom the matter was referred to following a split in the division bench of Justices Vivek Kumar Birla and Rajendra Kumar-IV, ruled in favour of IHFL officers.

In Most Cases, Women File False FIRs Under POCSO/SC-ST Act Using It As A Weapon To Grab Money From State: Allahabad HC

Case title - Ajay Yadav vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 254 [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7907 of 2023]

Case Citation: 2023 LiveLaw (AB) 254

The Allahabad High Court observed that it is very unfortunate that nowadays, in "maximum cases" women are filing false FIRs under the POCSO/SC-ST Act using it as a "weapon to grab money" from the state and this practice should stop.

The Court noted that such false FIRs are being lodged just for taking money from the State and the same has the effect of ruining the image of innocent persons in society.

"Looking to the rampant and daily increasing prevalence of such type of crimes of sexual violence, I think that it is high time that the State of U.P. and even the Union of India should become sensitive to this grave issue," the bench of Justice Shekhar Yadav further observed as it granted anticipatory bail to a Rape accused.

OTHER UPDATES

Allahabad HC To Hear On August 23 PIL Filed In 2020 Seeking Removal Of Mathura's Idgah Mosque, ASI Excavation Of Premises

The Allahabad High Court will hear on August 23 a Public Interest Litigation (PIL) plea (moved in 2020) seeking recognition of Mathura's Shahi Idgah Mosque site as Krishna Janam Bhoomi.

This PIL plea, moved by Advocate Mahek Maheshwari in 2020, was earlier dismissed in default in January 2021, however, the same was restored in March 2022.

Can't Say Physical Relationship Was Without Consent If Married Woman Having Experience In Sex Doesn't Offer Resistance: Allahabad HC

The Allahabad High Court has observed that if a married woman having experience in sex does not offer resistance, it cannot be said that her physical relationship with a man was against her will.

The bench of Justice Sanjay Kumar Singh observed thus while staying criminal proceedings initiated against a person accused of committing rape against a 40-year-old married woman/victim.

The Court noted that the alleged victim, without giving divorce to her husband and leaving her two children, started living in a live-in relationship with applicant no.1 (Rakesh Yadav) in order to achieve her aim of marriage with him.

Explain How Banke Bihari Temple Land Ownership Changed As Graveyard In Revenue Records?: Allahabad HC To Tehsildar

The Allahabad High Court has directed the Tehsildar of Chhata Tehsil (district Mathura) to appear in person before it to explain how the ownership of the Banke Bihari Ji Maharaj temple land was changed in the state revenue records in 2004 in the name of a graveyard.

The bench of Justice Saurabh Srivastava passed this order on a petition filed by Sri Bihari Ji Seva Trust (of Mathura).