Allahabad High Court Weekly Round-Up: November 27 To December 3, 2023
Sparsh Upadhyay
4 Dec 2023 10:20 AM IST
NOMINAL INDEX Mahadev Singh Dal Bahadur Singh v. State Of U.P. Thru. Prin. Secy. ( Revenue), Lko. And Others 2023 LiveLaw (AB) 454 Smt. Mobin And Another v. Dy. Director Of Consolidation And 6 Others 2023 LiveLaw (AB) 455 Rohit Chaturvedi v. Smt Neha Chaturvedi 2023 LiveLaw (AB) 456 Ramlala v. State Of U.P. And 4 Others 2023 LiveLaw (AB) 457 Maa Vindhya Stone Crusher Company...
NOMINAL INDEX
Mahadev Singh Dal Bahadur Singh v. State Of U.P. Thru. Prin. Secy. ( Revenue), Lko. And Others 2023 LiveLaw (AB) 454
Smt. Mobin And Another v. Dy. Director Of Consolidation And 6 Others 2023 LiveLaw (AB) 455
Rohit Chaturvedi v. Smt Neha Chaturvedi 2023 LiveLaw (AB) 456
Ramlala v. State Of U.P. And 4 Others 2023 LiveLaw (AB) 457
Maa Vindhya Stone Crusher Company v. State of U.P. and Another 2023 LiveLaw (AB) 458
M/S Nicholas Piramal India Ltd. and Ors v. Presiding Officer Labour Court Lko. and 3 Ors 2023 LiveLaw (AB) 459
The Commissioner Of Income Tax (Tds) And Another v. Lalitpur Power Generation Co. Ltd. 2023 LiveLaw (AB) 460
Hindustan Paper Machinery Industries v. Commissioner Cgst And 2 Others 2023 LiveLaw (AB) 461
State of U.P. vs. Dr. Sanjay Kumar Nishad and a connected case 2023 LiveLaw (AB) 462
Banwari Lal Kanchhal vs. State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko 2023 LiveLaw (AB) 463
Umesh Garg v. Union Of India and Another 2023 LiveLaw (AB) 464
Smt. Monika Yadav v. Aakash Singh And 3 Others 2023 LiveLaw (AB) 465
Hanuman Ram vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 466
State of U.P. vs. Zameel Alias Fauda And 5 Ors 2023 LiveLaw (AB) 467
Prem Prakash Yadav v. Union Of India Thru Secy.Min.Of Urban Planning And Development 2023 LiveLaw (AB) 468
ORDERS/JUDGMENTS OF THE WEEK
Case Title: Mahadev Singh Dal Bahadur Singh v. State Of U.P. Thru. Prin. Secy. ( Revenue), Lko. And Others [WRIT - C No. - 9984 of 2023]
Case Citation: 2023 LiveLaw (AB) 454
The Allahabad High Court has held that land recorded for public use cannot be exchanged by encroacher with his own land.
The bench comprising Justice Rajnish Kumar held that restoring the pond and maintaining it is beneficial for the villagers and for maintaining ecological balance. The Court further observed that under Section 101 (Exchange) of UP Revenue Code a bhumidar can exchange land held by another bhumidar or entrusted or deemed to be entrusted to any gram panchayat or local authority under Section 59. However, a land recorded as pond cannot be permitted to be exchanged even if it has been created into abadi.
Case Title: Smt. Mobin And Another v. Dy. Director Of Consolidation And 6 Others [WRIT - B No. - 2526 of 2023]
Case Citation: 2023 LiveLaw (AB) 455
The Allahabad High Court has held that matriculation certificate issued by a school is recognized as sufficient legal proof for determining date of birth. The Court held that DNA test is not necessary where such certificate has not been proved wrong.
Placing reliance on the judgment of Supreme Court in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, Justice Saurabh Shyam Shamshery held,
“As held in Aparna Ajinkya Firodia (supra) order to conduct DNA test could not be passed in a routine manner and it has to be passed only in extraordinary circumstances when there is no other legal basis to determine parentage of person concerned and since in the present case there is a document which is recognized to be sufficient legal proof of determination of date of birth, i.e., matriculation certificate, therefore, no circumstance exist to pass an order for DNA test.”
Case Title: Rohit Chaturvedi v. Smt Neha Chaturvedi [FIRST APPEAL No. - 295 of 2020]
Case Citation: 2023 LiveLaw (AB) 456
In a recent judgment, the Allahabad High Court has held that allegations of illicit relationship of a spouse cannot be left to the imagination of the court. Such allegations must be clearly made.
While granting a decree of judicial separation under Section 13A of the Hindu Marriage Act, 1955, the Court held,
“To infer existence of illicit relationship, it is not to be left to the imagination of the Court what the parties may have intended to say by way of fact allegation. The allegation of one party having illicit relationship with another must be clear.”
Mining Lease | Consequential Order Cannot Go Beyond Realm Of Show Cause Notice: Allahabad High Court
Case Title: Ramlala v. State Of U.P. And 4 Others [WRIT - C No. - 31059 of 2023]
Case Citation: 2023 LiveLaw (AB) 457
The Allahabad High Court has held that any order passed as a consequence of the show cause notice cannot go beyond what is alleged in the show cause notice. Actions to be taken against a person must be clearly stated in the show cause notice, it held.
While dealing with dispute regarding illegal mining, the bench comprising Justice Siddhartha Varma and Justice Shekhar B. Saraf observed that the reason for not allowing the authority to travel beyond the realm of the show cause notice is that “the petitioner has to be given a chance to put up his case with regard to the said show cause notice.”
Case Title: Maa Vindhya Stone Crusher Company v. State of U.P. and Another, WRIT-C No. 25003/2023
Case Citation: 2023 LiveLaw (AB) 458
Setting aside an order of blacklisting and cancellation of mining lease passed against the petitioner, the Allahabad High Court held that in a civilized society, principles of natural justice ought to be followed in order to maintain rule of law.
Considering that the petitioner had not been heard before passing of the impugned order, the court passed directions for it to be allowed to function on the leased land.
Medical Representatives Deemed To Be "Workman" Under Industrial Disputes Act: Allahabad High Court
Case Title: M/S Nicholas Piramal India Ltd. and Ors v. Presiding Officer Labour Court Lko. and 3 Ors., WRIT-C No. 1004529/2007
Case Citation: 2023 LiveLaw (AB) 459
The Allahabad High Court has held that following the enactment of Sales Promotion Employees (Conditions of Service) Act, 1976 ("SPE Act"), medical representatives are deemed to be "workman" under the Industrial Disputes Act, 1947.
Relying on the decision of the Bombay High Court in S.G. Pharmaceuticals Division of Ambala Sarabhai Enterprises Ltd. v. U.D. Pademwar and of the Supreme Court in H.R. Adyanthaya v. Sandoz (India) Ltd, Justice Alok Mathur observed that “after 06.05.1987 all the medical representatives were declared to be workmen without limitation on their wages thereafter and upon the capacity in which they were employed or engaged.”
Case Title: The Commissioner Of Income Tax (Tds) And Another v. Lalitpur Power Generation Co. Ltd. [INCOME TAX APPEAL No. - 111 of 2018]
Case Citation: 2023 LiveLaw (AB) 460
The Allahabad High Court has held that an otherwise indivisible contract cannot be dissected by the authorities under the Income Tax Act, in absence of any legal provision allowing such dissection.
Agreeing with the principals laid down by the Punjab and Haryana High Court and Karnataka High Court in Pr. Commissioner of Income Tax, TDS-II, Chandigarh Vs. The Senior Manager (Finance), Bharat Heavy Electricals Ltd., Jhajjar and Commissioner of Income Tax Vs. Bangalore Metro Rail Corporation Ltd., the bench comprising of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held
“Unless an external (legal tool) was available to the assessing authority under any of the provisions of the [Income Tax] Act as may have allowed it the luxury to dissect an otherwise indivisible contract and/or unless an internal tool was seen to exist to allow that exercise to be made, a composite contract could not dissected by the assessing authority.”
Case Title: Hindustan Paper Machinery Industries v. Commissioner Cgst And 2 Others [WRIT TAX No. - 1047 of 2023]
Case Citation: 2023 LiveLaw (AB) 461
The Allahabad High Court has held that tax cases where the facts are undisputed and there are issues of jurisdiction and violation principles of natural justice involved may not be relegated to the Authorities.
The Court held that cases where minimum statutory compliances have been made are generally relegated to the forum of alternate remedy.
The bench comprising of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad held
“Relegating the petitioner to the forum of alternative remedy in face of undisputed facts noted above may be of no real use or purpose. The writ court regularly relegates petitioners specifically in tax matters, to the forum of the statutory remedy of appeal where minimum compliances of law have been made. However on lack of jurisdiction or violation of principle of natural justice, the writ Court is equally inclined to offer interference to ensure due adherence to the rule of law both by the assessee as also the revenue authority.”
Case title - State of U.P. vs. Dr. Sanjay Kumar Nishad and a connected case
Case Citation: 2023 LiveLaw (AB) 462
The Allahabad High Court has allowed the state government's application to withdraw a criminal case, lodged in 2015 under the Railways Act, against Uttar Pradesh’s Cabinet Minister Dr. Sanjay Kumar Nishad.
A bench of Justice Raj Beer Singh passed this order while dealing with a Criminal revision plea filed by the State Government challenging the order passed by Additional CJM, Gorakhpur in September this year rejecting the plea moved by the Special Public Prosecutor under Section 321 CrPC for withdrawal of prosecution against Dr. Sanjay Kumar Nishad.
Case title - Banwari Lal Kanchhal vs. State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko
Case Citation: 2023 LiveLaw (AB) 463
In a significant observation, the Allahabad High Court has said that the Judges of the HC are making efforts to address the issue of case pendency by speeding up the dispensation of justice, however, the cooperation of the advocates is also required to reduce the backlog of unresolved cases.
The Court also urged all the Counsels appearing before the Court to contribute to the swift dispensation of justice by minimizing the nonproductive use of the Court's time by reducing adjournment requests and refraining from objecting to proceedings in their absence, especially when another counsel is available to take notes.
Case Title: Umesh Garg v. Union Of India and Another, WRIT TAX No. - 566/2021
Case Citation: 2023 LiveLaw (AB) 464
While dealing with a rejection order under the Direct Tax Vivaad Se Vishwas Act, 2020, the Allahabad High Court has held that a litigant does not have a fundamental or inherent right to claim settlement of dispute outside court. The right being created by statute must be availed in accordance with it.
The bench comprising of Justice Saumitra Dayal Singh and Justice Shiv Shanker Prasad opined,
“In the first place, settlement of disputes outside courts/ judicial process is not a fundamental or inherent right of any litigant. That right was created by the statute i.e. the Act. Being a statutory right, the same may have been availed strictly in accordance with the statutory conditions and further inasmuch as it was a stipulation that the application/ declaration may be maintainable only if there was pending a litigation between the parties before the cut off date, it remained from the petitioner to satisfy that condition.”
Case Title: Smt. Monika Yadav v. Aakash Singh And 3 Others [FIRST APPEAL DEFECTIVE No. 366 of 2023]
Case Citation: 2023 LiveLaw (AB) 465
The Allahabad High Court has held that an appeal against the order of a Civil Judge rejecting a plea for the issuance of a succession certificate would lie before the District Judge under Section 388(2) of the Indian Succession Act, 1925, and not before the High Court under Section 384 of the Act.
The Court held that the legislative intent was to provide for an appellate mechanism before a District Judge, and ‘not to the High Court.’
Case title - Hanuman Ram vs. State Of U.P. And 3 Others
Case Citation: 2023 LiveLaw (AB) 466
The Allahabad High Court denied bail to an ‘Ojha’ (exorcist) for allegedly raping a 15-year-old girl under the pretext to provide treatment to her through religious methods.
A Bench of Justice Sameer Jain noted that the accused was not entitled to be released on bail as he had been accused of raping the 15-year-old girl while she was alone with him in a room.
Essentially, the allegations against the accused were to the effect that due to the bad health of the victim, her father (informant) invited the applicant (Hanuman Ram), who was an ‘Ojha’ to treat her, however, the applicant, under the pretext of a religious ceremony, he committed rape with her daughter.
Case title - State of U.P. vs. Zameel Alias Fauda And 5 Ors. [GOVERNMENT APPEAL No. - 792 of 2018]
Case Citation: 2023 LiveLaw (AB) 467
The Allahabad High Court released a man on bail noting that he was arrested (and not produced before the HC) pursuant to the issuance of Non-Bailable Warrants by the HC while the State's appeal against his acquittal in a criminal case was pending before the HC.
Calling the accused-respondent's custody 'illegal' and his arrest 'groundless', the bench of Justice Arvind Singh Sangwan and Justice Ram Manohar Narayan Mishra directed for his release on furnishing a personal bond in the sum of Rs. 50,000/-.
Case Title: Prem Prakash Yadav v. Union Of India Thru Secy.Min.Of Urban Planning And Development [WRIT - C No. - 3990 of 2014]
Case Citation: 2023 LiveLaw (AB) 468
In a significant observation, the Allahabad High Court has held that though a petitioner has the right to choose the forum to file a writ petition, he/she cannot be permitted to hop between two jurisdictions without cogent reasons.
The Court further observed that under Clause-14 of the United Provinces High Court (Amalgamation) Order, 1948 petitions at Lucknow can be transferred by the Chief Justice of the High Court while sitting at Lucknow to Allahabad, however, the reverse cannot be done.
