Allahabad High Court Weekly Round-Up: May 20 – May 26, 2024
Sparsh Upadhyay
27 May 2024 9:24 PM IST
NOMINAL INDEX M/S Moksh Innovations Inc. Lko. Thru. Manager Jitendra Singh Bisht vs. E City Property Management And Services (P) Ltd. New Delhi Thru. Property Manager And Others 2024 LiveLaw (AB) 324 Sh. Dharmveer Tyagi And Others vs. Competent Authority, Dfcc, Special Land Acquisition (Joint Officer Organization) And Others 2024 LiveLaw (AB) 325 Tirthraj v. State Of U.P....
NOMINAL INDEX
M/S Moksh Innovations Inc. Lko. Thru. Manager Jitendra Singh Bisht vs. E City Property Management And Services (P) Ltd. New Delhi Thru. Property Manager And Others 2024 LiveLaw (AB) 324
Sh. Dharmveer Tyagi And Others vs. Competent Authority, Dfcc, Special Land Acquisition (Joint Officer Organization) And Others 2024 LiveLaw (AB) 325
Tirthraj v. State Of U.P. Thru. Secy. Secondary Education Lko. And 4 Others 2024 LiveLaw (AB) 326
The Pr Commissioner Of Income Tax, Aaykar Bhawan And Another vs. The Mahabir Jute Mills Lts. Sahjanwah Gorakhpur 2024 LiveLaw (AB) 327
The Commissioner, Commercial Tax U.P. v. M/S R.P. Milk Made Products (P) Ltd. 2024 LiveLaw (AB) 328
Shivani Chaurasia And Another vs. State Of U.P. And Another 2024 LiveLaw (AB) 329
M/s Geo Miller and Co. Pvt. Ltd. vs UP Jal Nigam and Others 2024 LiveLaw (AB) 330
Rajesh Kumar S/O Ram Khelawan Singh And Anr. v. Union Of India Thru Secy. Ministry Of Health And Family Welfare 2024 LiveLaw (AB) 331
Alka Sethi And Another vs. State Of Up And 4 Others 2024 LiveLaw (AB) 332
2024 LiveLaw (AB) 333
Ram Bahal and others v. D.D.C. And Others 2024 LiveLaw (AB) 334
Pintu Singh @ Rana Pratap Singh And 2 Others vs. State of U.P. and Another 2024 LiveLaw (AB) 335
2024 LiveLaw (AB) 336
M/S Devi Dayal Trust And Others V. M/S Rajhans Towers Pvt. Ltd. 2024 LiveLaw (AB) 337
Umesh Kumar Sirohi v. State Of U P And Another 2024 LiveLaw (AB) 338
Manoj Kumar Gupta And 2 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 339
Bhudev vs. State of U.P. 2024 LiveLaw (AB) 340
Santosh Kumar And 2 Others v. Board Of Revenue U.P. Prayagraj Thru. Its Member Judicial And 10 Others 2024 LiveLaw (AB) 341
Ishita Dua v. Tarun Kumar Sharma 2024 LiveLaw (AB) 342
Rajiv Malhotra vs. State of U.P. and Another 2024 LiveLaw (AB) 343
M/S S Kumar Construction v. Commissioner Of Central Excise (Appeals), Central Goods And Services Tax (Appeals) And Another 2024 LiveLaw (AB) 344
Dr. Tanzeen Fatima Vs. State of U.P and connected matters 2024 LiveLaw (AB) 345
ORDERS/JUDGMENTS OF THE MONTH
Case Title: M/S Moksh Innovations Inc. Lko. Thru. Manager Jitendra Singh Bisht vs. E City Property Management And Services (P) Ltd. New Delhi Thru. Property Manager And Others 2024 LiveLaw (AB) 324 [SPECIAL APPEAL DEFECTIVE No. - 266 of 2024]
Citation: 2024 LiveLaw (AB) 324
The Allahabad High Court has held that by virtue of Section 11(7) of the Arbitration and Conciliation Act, 1996, special appeal and letters patent appeal against orders passed under Section 11(4), (5) and (6) of the Act is not maintainable.
The Court held that since the Amending Act of 2019 which did away with Section 11(7) had not been notified by way of Official Gazette, the bar placed by Section 11(7) is still in force.
Case Title: Sh. Dharmveer Tyagi And Others vs. Competent Authority, Dfcc, Special Land Acquisition (Joint Officer Organization) And Others 2024 LiveLaw (AB) 325 [APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 No. - 257 of 2024]
Citation: 2024 LiveLaw (AB) 325
The Allahabad High Court has held that Section 5 of the Limitation Act does not apply to proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 and the timeline provided in Section 34(3) for challenging an arbitral award must be strictly adhered to.
Section 34(3) of the Arbitration and Conciliation Act, 1996 provides a period of 3 months for challenging an arbitral award. Proviso to Section 34(3) empowers Court to condone a delay of 30 days if sufficient cause for delay is show, “but not thereafter.”
Case Title: Tirthraj v. State Of U.P. Thru. Secy. Secondary Education Lko. And 4 Others 2024 LiveLaw (AB) 326 [WRIT - A No. - 8517 of 2023]
Citation: 2024 LiveLaw (AB) 326
The Allahabad High Court has held that Section 33-G of the Uttar Pradesh Secondary Education (Service Selection Boards) Act, 1982 which was added by way of amendment in 2016 was added a beneficiary scheme for teachers who had spent decades serving as teachers.
The provision governs substantive appointments of teachers on posts other than that of the Principal/ Headmaster. Sub-section (a) thereof provides for regularization of teacher, other than the principal or headmaster, who has been appointed by promotion or by direct recruitment in the lecturers grade or trained graduate grade, on or after 7.8.1993, but not later than 25.1.1999 on short term Vacancy in accordance with paragraph 2 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 198, which was subsequently converted into a substantive vacancy.
Case Title: The Pr Commissioner Of Income Tax, Aaykar Bhawan And Another vs. The Mahabir Jute Mills Lts. Sahjanwah Gorakhpur 2024 LiveLaw (AB) 327 [INCOME TAX APPEAL No. - 35 of 2024]
Citation: 2024 LiveLaw (AB) 327
The Allahabad High Court has held that once the acceptance of books of accounts by the Commissioner of Income Tax (Appeals) have not been objected to by the Assessing Authority before the Income Tax Appellate Tribunal, it is not open to the Assessing Officer to disturb the gross profit rate as declared by the assesee.
The bench comprising of Justice Saumitra Dayal Singh and Justice Donadi Ramesh held that
“in absence of any other objection found in the books of accounts of the assessee as may have been pressed before the Tribunal, there survives no room to reject the books of accounts of the assessee. Consequently, there is no intrinsic evidence to enhance the gross profit rate. Once the books of accounts of an assessee are found accepted the Assessing Officer may have remained within the confines of his powers ad not disturbed the gross profit rate as that would remain in the nature of the result of the book entries and not an original entry by itself.”
Case Title: The Commissioner, Commercial Tax U.P. v. M/S R.P. Milk Made Products (P) Ltd. 2024 LiveLaw (AB) 328 [SALES/TRADE TAX REVISION No.123 of 2023]
Case citation: 2024 LiveLaw (AB) 328
The Allahabad High Court has held that plant and machinery sold after the closure of business are capital goods under Section 2(f) of the Uttar Pradesh Value Added Tax Act, 2008 and are excluded from levy of tax under the amended definition of 'business' under Section 2(e) of the Act.
The definition of 'business' under Section 2(e)(iv) of the Uttar Pradesh Value Added Tax Act, 2008 was amended in 2014 to include any transaction, even after the closure of business, if it relates to sale of goods acquired during the period in which business was carried out. Section 2(f) defines 'capital goods' as plant, machine, machinery, equipment, apparatus, tool, appliance or electrical installation used for manufacture or processing of any goods for sale by the dealer.
Case Title: Smt. Shivani Chaurasia And Another vs. State Of U.P. And Another 2024 LiveLaw (AB) 329 [WRIT – C No. 13775 OF 2023]
Case citation: 2024 LiveLaw (AB) 329
The Allahabad High Court has held that the proceedings under the Indian Stamp Act, 1899 are quasi-judicial in nature and unless statute specifically provides, the Collector (Stamp) has no power to review or recall his order.
The Court held that no statutory power to review/ recall its order has been given to the Collector (Stamp) under the Indian Stamp Act.
“Collector (Stamp) cannot recall and/or review his own order as no such power has been conferred under Section 47-A of the Act. A quasi-judicial authority is limited in its functionality in as much as it has to act within the four corners of the statute from which it derives its authority. If the statute does not provide for a particular act, the same cannot be undertaken by that authority. Any such action taken de hors the legislative intent would amount to an overreach and beyond the power of the said authority,” held Justice Shekhar B. Saraf.
Case Title: M/s Geo Miller and Co. Pvt. Ltd. vs UP Jal Nigam and Others 2024 LiveLaw (AB) 330
Case citation: 2024 LiveLaw (AB) 330
The Allahabad High Court single bench of Justice Shekhar B. Saraf held that if the High Court appoints the arbitrator under Section 11 of the Arbitration Act, it has the jurisdiction to entertain Section 29A application for extending the mandate of the arbitrator.
While acknowledging that the issue of the appropriate court for Section 29A applications was pending before a larger bench, the High Court held that the current position continued to be governed by previous judgments such as Indian Farmers Fertilizers Cooperative Ltd. v. Manish Engineering Enterprises.
Case Title: Rajesh Kumar S/O Ram Khelawan Singh And Anr. v. Union Of India Thru Secy. Ministry Of Health And Family Welfare 2024 LiveLaw (AB) 331 [WRIT - C No. - 6856 of 2009]
Case citation: 2024 LiveLaw (AB) 331
The Allahabad High Court has held that the practice of Electro Homeopathy is not banned in the State of Uttar Pradesh but such practitioners of electro homeopathy cannot use 'doctor' prefix before their names.
The bench comprising Justice Vivek Chaudhary and Justice Om Prakash Shukla further held that the practice will be governed by Government order dated 25.11.2003. It said,
“although no institution can confer a diploma or degree in Electro Homeopathy, however, as there is no ban, the petitioners can always practice Electro Homeopathy as an alternative therapy within the parameters of order dated 25.11.2003. This Court also finds that in the absence of any statutory provisions, there could not be any conferring of diploma or degrees in Electropathy or Electro Homeopathy in India, however, there is no bar in issuance of Certificate for the said study.”
Case title - Alka Sethi And Another vs. State Of Up And 4 Others 2024 LiveLaw (AB) 332
Case citation: 2024 LiveLaw (AB) 332
Expressing its concerns regarding the misuse of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Allahabad High Court quashed an FIR as well as the entire criminal proceedings against a couple initiated allegedly at the behest of a government servant.
“This Court will be failing in its duty, if such kind of activities are allowed to take place in the State of U.P. by none other than the government servant. Here the connivance of land mafias, the Revenue Officers and the then S.H.O. seems to be playing a major role, wherein a couple has wrongly been implicated in the criminal proceedings and they have been forced to run from pillar to post,” a bench of Justice Prashant Kumar observed as it allowed a quashing plea filed by one Alka Sethi and her husband (Dhruv Sethi).
Case citation: 2024 LiveLaw (AB) 333
While quashing criminal complaints against the relatives of the husband, the Allahabad High Court observed that though the demand of dowry is a punishable offence, taunting for giving less dowry is not a penal offence by itself.
The Court held that allegations against the family members must be clear and unambiguous, highlighting the specific roles played by each member to attract criminal prosecution.
Case Title: Ram Bahal and others v. D.D.C. And Others [WRIT - B No. - 3434 of 1981]
Case citation: 2024 LiveLaw (AB) 334
The Allahabad High Court has reiterated that in Hindu family land disputes, the person claiming the property in question to be a Joint Hindu Family Property would have the initial burden of proof to establish the same.
The Court relied on Kunj Bihari v. Ganga Sahai Pande where Allahabad High Court held that “The legal proposition which emerges therefrom is that initial burden is on the person who claims that it is joint family property but after initial burden is discharged, the burden shifts to the party claiming that the property was self acquired and without the aid of joint family property.”
Case title - Pintu Singh @ Rana Pratap Singh And 2 Others vs. State of U.P. and Another 2024 LiveLaw (AB) 335
Case citation: 2024 LiveLaw (AB) 335
The Allahabad High Court has recently reiterated that an alleged act of intentional insult or intimidation causing humiliation would constitute an offence under Section 3(1)(r) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (SC/ST Act) only if it is committed in public view.
A bench of Justice Vikram D. Chauhan observed thus while quashing Criminal proceedings against the 3 persons (applicants) in respect of offence under sections 3(1)(r) SC/ST Act.
Allahabad High Court Orders Police Protection For Man In Live-In Relationship With A Trans Woman
Case citation: 2024 LiveLaw (AB) 336
Affirming the right of individuals to live their lives freely, including choosing their partners, the Allahabad High Court recently ordered police protection for a man involved in a live-in relationship with a transwoman.
In its order, a bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh asserted that living with a person of one's choice is one sphere of life where Constitutional Courts “positively enforce the Constitutional law dictate, to negate and contain any societal prejudices” that may otherwise violate a citizen's fundamental rights.
Case Title: M/S Devi Dayal Trust And Others V. M/S Rajhans Towers Pvt. Ltd. [MATTERS UNDER ARTICLE 227 NO. 2199 OF 2023]
Case citation: 2024 LiveLaw (AB) 337
The Allahabad High Court has held that once party has filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before one Court, he cannot raise an objection regarding territorial jurisdiction of that Court in dealing with any application arising out of the same arbitration agreement in view of Section 42 of the Act.
Section 42 of the Act provides that notwithstanding anything contained elsewhere in Part-I of the Act or in any other law for the time being in force, where with respect to an arbitration agreement any application under Part-I has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.
Case Title: Umesh Kumar Sirohi v. State Of U P And Another 2024 LiveLaw (AB) 338 [WRIT - A No. - 10665 of 2021]
Case citation: 2024 LiveLaw (AB) 338
While upholding dismissal of judicial officer on charges of demand of dowry and trying to influence his subordinate in a case instituted by his wife, the Allahabad High Court held that Disciplinary Authority being Full Court of the High Court is not obligated to supply reasons for rejecting the comments made by the delinquent judicial officer on the inquiry report.
Relying on the decisions of the Supreme Court in Ram Kumar v. State of Haryana and Boloram Bordoloi v. Lakhimi Gaolia Bank and others, and the decision of a coordinate bench of the Allahabad High Court in Madhav Prasad v. Deputy Director, the bench of Justice Saumitra Dayal Singh and Justice Donadi Ramesh held that “the Disciplinary Authority / Full Court was not obligated to record its express reasons-to reject the representation made by the delinquent or to accept the Inquiry Report or to award particular penalty.”
Case title - Manoj Kumar Gupta And 2 Others vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 339
Case citation: 2024 LiveLaw (AB) 339
While quashing an FIR lodged by the Chief Judicial Magistrate, Banda against the serving officials of the state's Electricity Department, the Allahabad High Court on Tuesday made strong remarks about the Judicial officer's conduct.
A bench of Justice Rahul Chaturvedi and Justice Mohd. Azhar Husain Idrisi observed that CJM Banda Bhagwan Das Gupta levelled “wild and tailored” allegations of fraud, cheating, fabrication of documents, and extortion of money against the officials “to teach a bitter lesson” to them and to make them “understand the power and position of a CJM.
Case title - Bhudev vs. State of U.P. 2024 LiveLaw (AB) 340
Case citation: 2024 LiveLaw (AB) 340
The Allahabad High Court censured an Investigating Official for hastily filing a chargesheet under Section 306 IPC after dropping the charge under Section 302 IPC, initially specified in the FIR.
A bench of Justice Manju Rani Chauhan further directed the Commissioner of Police, Police Commissionerate, Agra, to send the IO for special training to prepare him for investigating offences, especially under Section 302 IPC.
Case Title: Santosh Kumar And 2 Others v. Board OfRevenue U.P. Prayagraj Thru. Its Member Judicial And 10 Others [WRIT - B No. - 523 of 2024]
Case citation: 2024 LiveLaw (AB) 341
The Allahabad High Court has imposed a cost of Rs. 50,000 on a party for trying to grab the land of a widow by filing false affidavit before various quasi-judicial authorities. The Court held that the petitioners had misused the process of law by intentionally defrauding the authorities.
Case Title: Ishita Dua v. Tarun Kumar Sharma 2024 LiveLaw (AB) 342 [FIRST APPEAL No. - 374 of 2024]
Case citation: 2024 LiveLaw (AB) 342
The Allahabad High Court has held that withdrawal of divorce petition filed by the wife under Section 13(1)(ia) of the Hindu Marriage Act, 1955 does not automatically abate the counterclaim filed by the husband as dismissal or discontinuance of a suit under Order VIII Rule 6D CPC includes withdrawal of suit as a suit is “dismissed as withdrawn”.
The bench comprising of Justice Vivek Kumar Birla and Justice Syed Qamar Hasan Rizvi held
“Insofar as the term 'discontinued or dismissed' is concerned. Once the withdrawal application is allowed, the suit stands discontinued for all practical purposes. Even otherwise, the withdrawal of the suit is always as dismissed as withdrawn and therefore, withdrawal of the suit would fall within the two words, i.e., 'discontinued or dismissed'.”
Case title - Rajiv Malhotra vs. State of U.P. and Another 2024 LiveLaw (AB) 343
Case citation: 2024 LiveLaw (AB) 343
The Allahabad High Court has unequivocally ruled that a demand notice sent to the cheque drawer via courier service is valid in cheque bounce cases under the Negotiable Instruments (NI) Act.
The court, however, made it clear that in cases of notice sent through courier, the presumption of service under Section 27 of the General Clauses Act cannot be invoked until an amendment is made under the said provision to include the courier service apart from the registered post.
Case Title: M/S S Kumar Construction v. Commissioner Of Central Excise (Appeals), Central Goods And Services Tax (Appeals) And Another [WRIT TAX No. - 1368 of 2023]
Case citation: 2024 LiveLaw (AB) 344
The Allahabad High Court has held that the limitations prescribed under special statutes, such as Finance Act, 1994 will prevail over the limitations mentioned in the Limitation Act, 1963.
The Court held that statutes such as the Finance Act, 1994 or the Central Excise Act, 1944 were enabled to address specific areas of law and that they often contained detailed provisions regarding procedural aspects such as limitation.
Case title - Dr. Tanzeen Fatima Vs. State of U.P and connected matters 2024 LiveLaw (AB) 345
Case citation: 2024 LiveLaw (AB) 345
The Allahabad High Court stayed the conviction of Samajwadi Party leader Azam Khan in connection with the fake birth certificate case.
However, the court did not suspend the conviction of his wife (Tanzeen Fatima) and son (Abdullah Azam), though their pleas for suspension of the sentence were allowed, and all three were granted bail.
However, Azam Khan and his son will remain in jail due to a pending case against them and only his wife will be released from jail.
