Allahabad High Court Weekly Round-Up: July 31 - August 06

M/S Bhawani Traders vs. State of U.P. 2023 LiveLaw (AB) 231

Tarkeshwar And 2 Others vs. State Of U.P. and 5 Others 2023 LiveLaw (AB) 232

Garima Singh vs. Pratima Singh and Another 2023 LiveLaw (AB) 233

Reena Bagga and Another vs. State of UP and 2 Others 2023 LiveLaw (AB) 234

Avnish Tandon vs. Assistant General Manager 2023 LiveLaw (AB) 235

M/S Vaid Organics And Chemical Industries Ltd. Lko. Thru. Its Director Swarn Singh v. State Of U.P. Thru. Secy. Deptt. Of Industries U.P. Civil Secrt. Lko. And Others 2023 LiveLaw (AB) 236

Vivek Kumar Maurya vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 237

Saloni Yadav And Another vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 238

Azad Ahmad Khan vs. Income Tax Appellate Tribunal 2023 LiveLaw (AB) 239

Vijay Pal Prajapati vs. State Of U.P. Thru. Prin. Secy. Home Lko 2023 LiveLaw (AB) 240

Anjuman Intezamia Masajid Varanasi vs. Rakhi Singh And 8 Others 2023 LiveLaw (AB) 241

M/S Tikona Infinet Private Limited vs. State of U.P. and Another 2023 LiveLaw (AB) 242

Lalita vs. Central Goods And Service Tax And Another 2023 LiveLaw (AB) 243

Prakhar Nagar vs. State of UP & 4 Others 2023 LiveLaw (AB) 244

Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad vs. U.P. Power Corporation Limited And 3 Others 2023 LiveLaw (AB) 245

Shivam Kumar Pal @ Sonu Pal And 3 Others vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 246

ORDERS/JUDGMENTS OF THE WEEK

Goods In Transit Can’t Be Treated As Non-Traceable In Presence Of Tax Invoice, E-Way Bill And Bilty: Allahabad High Court

Case Title: M/S Bhawani Traders vs. State of U.P. [Writ Tax No. - 854 Of 2023]

Case Citation: 2023 LiveLaw (AB) 231

The Allahabad High Court has quashed the penalty order passed in Form MOU-09 under Section 129(1)(b) of the Goods and Services Tax Act, 2017 on the grounds that the goods in transit were duly accompanied by the tax invoice, e-way bill, and bilty.

The bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava has relied on the decision of the Allahabad High Court in the case of M/s Sahil Traders vs. State of U.P., in which it was held that in the face of the tax invoice and the E-way bill produced by the petitioner, the goods may not have been treated as not traceable to a registered dealer.

Ex-Parte Order Can Be Recalled At Behest Of Necessary Party That Is Non-Party To A Case: Allahabad High Court

Case Title: Tarkeshwar And 2 Others vs. State Of U.P. and 5 Others [WRIT C No. ­ 13852/2023]

Case Citation: 2023 LiveLaw (AB) 232

The Allahabad High Court has held that every Court and Tribunal have inherent power to set aside an ex-parte order as it amounts to ‘procedural review’ and is distinct from the statutory power to review a case on merits.

Justice Yogendra Kumar Srivastava held that revenue authorities can recall an ex-parte order, passed without grant of notice or opportunity to the affected party, to correct the procedural defect for doing justice between the parties. ‘Procedural review’ is an inherent power of every Court and Tribunal “to correct procedural illegality which goes to the root of the matter and invalidates the proceedings itself and consequently the order passed therein.”

First Wife Can File Application U/S 11 Hindu Marriage Act For Declaration Of Husband's Second Marriage As Void: Allahabad High Court

Case Title: Garima Singh vs. Pratima Singh and Another 2023 LiveLaw (AB) 233 [First Appeal No. 623/2022]

Case Citation: 2023 LiveLaw (AB) 233

The Allahabad High Court has upheld the right of the first wife to file an application under Section 11 (void marriages) of the Hindu Marriage Act, 1955 for declaration of her husband's second marriage as void.

On the harmonious reading of the Family Courts Act, 1984 and the Hindu Marriage Act, 1955, bench comprising of Justices Saumitra Dayal Singh and Vinod Diwakar held:

“If the first wife is deprived of seeking a remedy under Section 11 of the Hindu Marriage Act, it would defeat the very purpose and intent of the Act. The protection offered to legally wedded wives under sections 5, 11, and 12 of the Hindu Marriage Act would become insignificant in such a scenario.”

Allahabad High Court Judges Disagree On Grant Of Interim Relief To Indiabulls Officials' In Shipra Group's FIR

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) 234

A division bench of the Allahabad High Court comprising Justices Vivek Kumar Birla and Rajendra Kumar-IV delivered a split decision on interim plea to stay the FIRs under Sections 420 and 120B of IPC against the officers of Indiabulls Housing Finance Ltd., lodged by Mohit Singh, Director of Shipra Estate.

Indiabulls Housing Finance Ltd. (IHFL) sanctioned 16 loan facilities of Rs.2801.00 Crores to "Shipra Group/Borrowers" comprising of Shipra Hotels Ltd., Shipra Estate Ltd. and Shipra Leasing Pvt. Ltd. for the purposes of construction and development of housing projects. Shares of various companies were pledged in favour of IHFL.

Compassionate Appointment Cannot Be Granted 26 Years After Employee's Death: Allahabad High Court

Case Title: Avnish Tandon vs. Assistant General Manager [Writ A No. 10831 of 2023]

Case Citation: 2023 LiveLaw (AB) 235

The Allahabad High Court held that compassionate appointment is granted to tide over the immediate hardships of the family due to untimely demise of the earning hand and it cannot be granted after a lapse of 26 years from the death of the employee.

“...What is most important is that 26 years have indeed elapsed since the petitioner's mother passed away. During this long passage of time, as life goes on, it is a legitimate inference to draw that the financial crisis emanating from the petitioner's mother's untimely demise would have been tided over by the petitioner, in whatsoever way it was. There is, therefore, no existing exigency to bail out the family in economic distress now, in aid of which this Court may issue a mandamus to consider the petitioner's case”, held Justice JJ Munir.

Reliance On Wrong Precedent Renders Decision 'Erroneous', Can't Be Corrected Under 'Review Jurisdiction': Allahabad High Court

Case Title: M/S Vaid Organics And Chemical Industries Ltd. Lko. Thru. Its Director Swarn Singh v. State Of U.P. Thru. Secy. Deptt. Of Industries U.P. Civil Secrt. Lko. And Others

Case Citation: 2023 LiveLaw (AB) 236

While rejecting a review application, the Allahabad High Court has reiterated that review cannot be granted merely because the bench giving the decision relied on allegedly wrong precedence of the Apex Court. Review jurisdiction can only be exercised if there is an error apparent on the face of the record.

Relying on the decision of the Apex Court in S. Madhusudhan Reddy v. V Narayana Reddy and others (2022), the bench comprising Justices Sangeeta Chandra and Manish Kumar held,

“the scope of a review application is limited. The Court may correct an error apparent on the face of the record or interfere on any other ground analogous to such ground, but it cannot correct an erroneous decision for that is the scope of appellate jurisdiction.”

Genuine Cases Of Sexual Offences Now An Exception; Women Lodging False FIRs After Long Physical Relation With Accused: Allahabad HC

Case title - Vivek Kumar Maurya vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 237 [CRIMINAL MISC. BAIL APPLICATION No. - 23551 of 2023]

Case Citation: 2023 LiveLaw (AB) 237

Observing that genuine cases of such sexual offences are now an "exception", the Allahabad High Court said that since girls/women have the “upper hand” when it comes to the protection of the law, they “easily succeed” in implicating a boy or man in such cases.

The Court also noted that a large number of cases are coming in courts wherein girls and women “take undue advantage” by lodging FIRs on false allegations after indulging in a long physical relationship with the accused.

Impermissible For A Person Below 18 Years Of Age To Be In A 'Live In Relation', Such Acts Are Immoral, Illegal: Allahabad High Court

Case Title - Saloni Yadav And Another vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 238 [CRIMINAL MISC. WRIT PETITION No. - 7996 of 2023]

Case Citation: 2023 LiveLaw (AB) 238

The Allahabad High Court has observed that a 'child' (a person below the age of 18 years) cannot be in a live-in relationship and this would be an act not only immoral but also illegal.

The Court also said that there are several conditions for a live-in relation to be treated as a relation in nature of marriage and in any case, a person has to be major (above the age of 18 years) although he may not be of marriageable age (21 years).

Estate Duty Act 1953 | Alleged Waqif Not Entitled To Exemption U/S 12 If He Reserves Right To Amend Waqf Deed: Allahabad High Court

Case Title: Azad Ahmad Khan vs. Income Tax Appellate Tribunal [ Writ C No. 1000800/2000]

Case Citation: 2023 LiveLaw (AB) 239

The Allahabad High Court has held that exemptions cannot be claimed from paying estate duty under Estate Duty Act, 1953 if waqif has a reserved right to amend the waqf deed and provisions therein to derive gains from the waqf property.

The petitioner is the adopted child of one Gulam Azad Khan who allegedly created a waqf-alal-aulad under the Mussalman Waqf Validating Act, 1913. As per the Waqf deed, Rs. 100 out of the total proceeds of M/s. General Engineering Works (waqf property) was to be spent towards almighty and rest of the proceeds were to be utilised as per the wishes of the waqif Gulam Ahmad Khan during his lifetime. Gulam Ahmad Khan also reserved the right to make changes in the waqf deed and sell off the assets entrusted to the waqf including M/s. General Engineering Works.

Mere Non-Payment Of Money Under A Contract No Ground To Deny Anticipatory Bail To Accused: Allahabad High Court

Case title - Vijay Pal Prajapati vs. State Of U.P. Thru. Prin. Secy. Home Lko [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 57 of 2023]

Case Citation: 2023 LiveLaw (AB) 240

The Allahabad High Court has observed that mere non-payment of money paid under a contract cannot be a ground for criminal prosecution of a party to the agreement and, in any case, that "cannot be a ground for rejection of the anticipatory bail application" of the accused person.

The bench of Justice Subhash Vidyarthi observed thus while granting anticipatory bail to one Vijay Pal Prajapati, who has been accused of committing a breach of the agreement concerning the sale and marketing of excavated sand.

The Court also noted that nowadays it is becoming a general practice to set the criminal law into motion for "putting pressure on the parties to commercial transactions".

Gyanvapi | 'Scientific Survey Will Help Plaintiffs, Defendants Alike; Parties Free To Remain Present During ASI Survey': Allahabad HC

Case title - Anjuman Intezamia Masajid Varanasi vs. Rakhi Singh And 8 Others 2023 LiveLaw (AB) 241 [MATTERS UNDER ARTICLE 227 No.7955 of 2023]

Case Citation: 2023 LiveLaw (AB) 241

While upholding the Varanasi Court's July 21 order for an ASI Survey of the Gyanvapi Mosque Premises, the Allahabad High Court today said that the scientific survey of the disputed site is "necessary in the interest of justice" and it shall "benefit the plaintiffs and defendants alike" and it will also "come in aid of the trial court" to arrive at a just decision in the matter.

The Court also clarified that the dismissal of the writ petition of the Anjuman Mosque Committee would not affect the right of the parties to the Suit to remain present at the time of the scientific investigation to be made by the ASI.

Assessee Ought To Have Waited For Relevant Form To Go Live On GST Portal Instead Of Making Illegal Adjustment: Allahabad High Court

Case Title: M/S Tikona Infinet Private Limited vs. State of U.P. and Another [Writ Tax No. - 859 Of 2023]

Case Citation: 2023 LiveLaw (AB) 242

The Allahabad High Court has held that the assessee ought to have waited for the relevant form to go live on the GST portal instead of making an illegal adjustment.

The bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava has observed that it was incumbent upon the petitioner to have raised a proper grievance on the GST portal help-desk and ought to have waited for the relevant Form to go live on the GST portal instead of making illegal adjustments by use of the Form GSTR-3B of the transferor and the transferee company. A mere shortage of working capital cannot be an excuse to bypass the legal procedure laid down under the law.

CGST Rules | Remedy Under Rule 159(5) Against Provisional Attachment Must Be Availed Before Approaching Court: Allahabad High Court

Case Title: Lalita vs. Central Goods And Service Tax And Another 2023 LiveLaw (AB) 243 [Writ Tax No. - 862 of 2023]

Case Citation: 2023 LiveLaw (AB) 243

The Allahabad High Court has held that Rule 159(5) of the Central Goods and Service Tax Rules, 2017 which provides remedy to file objections against the attachment of property must be availed before approaching the Court.

CGST Department carried out an investigation against 3 persons including the petitioner and her husband for availing and passing on wrong Input Tax Credit by creating various firms without supply of goods. Petitioner’s current bank account has been provisionally attached exercising powers under Section 83 of the CGST Act, 2017 read with Rule- 159 (1) of the CGST Rules '2017'.

Students Should Be Given Opportunity To Reform, Instead Of Punitive Punishment: Allahabad High Court

Case Title: Prakhar Nagar vs. State of UP & 4 Others 2023 LiveLaw (AB) 244 [Writ C No. 21339/2020]

Case Citaiton: 2023 LiveLaw (AB) 244

The Allahabad High Court has held that purely punitive actions should not be taken by universities against students. Students are young adults who must be given an opportunity of reformation, it said.

“Purely punitive action was taken by the University against the petitioner, to the exclusion of opportunities to reform his conduct, explore possibilities of excellence and redeem his reputation. In matters pertaining to errant behavior by students such approach may make the action vulnerable to judicial review on grounds of disproportionality,” held Justice Ajay Bhanot.

Commercial Electricity Rates Inapplicable To Lawyers' Chambers As Legal Profession Is Not ‘Commercial’ In Nature: Allahabad High Court

Case Title: Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad vs. U.P. Power Corporation Limited And 3 Others 2023 LiveLaw (AB) 245 [WRIT - C No. - 2637 of 2023]

Case Citaiton: 2023 LiveLaw (AB) 245

The Allahabad High Court has held that the activities carried out by lawyers are not ‘commercial activity’ and electricity rates charged from commercial establishments cannot be charged for lawyers' chambers for carrying out professional activities.

“An advocate or a legal practitioner is duty-bound to act as an officer of the Court. An advocate is prohibited to do any business or involve in any commercial activity and they are also restrained by the rules framed by the Bar Council of India from advertising their professional activities....” held a bench comprising of Justices Surya Prakash Kesarwani and Anish Kumar Gupta.

Further, the Court held that,

“… All these are the features, which categorically distinguish, the legal profession from the trade or business. Therefore, the legal profession by no stretch of imagination can be called as the commercial activity, trade or business...The respondents are directed to charge for the consumption of electricity by the lawyers in their chambers in the court premises as per the rate schedule LMV-I [domestic] as approved by the U.P. Electricity Regulatory Commission.”

Practice Of Lodging False FIRs Alleging Rape Has To Be Dealt With A Heavy Hand: Allahabad HC Imposes ₹10K Cost On A Woman

Case title - Shivam Kumar Pal @ Sonu Pal And 3 Others vs. State Of U.P. And 2 Others [CRIMINAL MISC. WRIT PETITION No. - 11560 of 2023]

Case Citation: 2023 LiveLaw (AB) 246

The Allahabad High Court last week imposed a cost of Rs. 10K on a woman who admittedly lodged a First Information Report (FIR) against 4 men falsely accusing them of committing the offences of rape, and unnatural sex against her.

The Court also said that the practice of lodging FIRs and falsely making serious allegations of rape cannot be permitted and that such a practice has to be dealt with a "heavy hand".

"The criminal justice system cannot be permitted to be used as a tool for setting personal disputes by filing first information reports which are admittedly false," the bench of Justice Anjani Kumar Mishra and Justice Vivek Kumar Singh remarked further.

OTHER UPDATES

PIL In Allahabad High Court Challenges Recent Appointments Of State Law Officers

A public interest litigation has been filed before the Allahabad High Court challenging the recent appointments of Chief Standing Counsels and Additional Government Advocates.

The matter was argued before a bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava, which has directed the parties to supply a synopsis of their arguments.

Petitioners who are enrolled with the Bar Council of Uttar Pradesh have filed the PIL challenging the recent appointments made by the State Government on its panel on the grounds that due procedure was not followed by the State while appointing these advocates. Further, it has been alleged that the advocates so appointed lack ‘competence’.

What Steps Taken To Control Menace Of Coaching Institutes Running In Schools Premises Across UP?: Allahabad HC Asks CBSE, UP Govt

The Allahabad High Court has asked the Central Board of Secondary Education (CBSE) as well as the Uttar Pradesh Government to file a response in 10 days about the steps taken by them to control the "menace" of coaching institutes running in the premises of school/college buildings across the state.

A bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar made this enquiry while dealing with a writ petition filed by one Manish Kumar Mishra seeking a direction to respondents to ensure the strict compliance of UP Coaching Regulation Act, 2002 and CBSE Circular (of August 2019).

2019 Hate Speech Case: Allahabad High Court Issues Notice To SP Leader Azam Khan In UP Govt's Appeal Challenging His Acquittal

The Allahabad High Court has issued a notice to the Samajwadi Party leader Azam Khan in the Uttar Pradesh Government's appeal challenging an order of the Rampur Court acquitting Khan (in May the year) in the 2019 hate speech case which led to his disqualification as an MLA, last year.

Hearing the appeal on Thursday, the bench Justice Raj Beer Singh has also summoned the record of the trial court as well as of the appellate and now, the matter has been listed for further hearing on September 27, 2023.

PIL Seeking Sealing Of Gyanvapi Mosque Premises, Ban On Entry Of Non-Hindus: Allahabad High Court To Hear On August 8

The Allahabad High Court will hear on August 8 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.

A bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava is set to hear the matter.

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

The PIL Plea states that the petitioners intend to "save the centuries-old remains of Sri Adi Vishweshwar temple (present Gyanvapi Mosque) in Varanasi" and they seek "protection of Shivlingam of Sri Adi Vishweshwar Virazmaan and other visible and invisible deities in the precinct of the temple".