Allahabad High Court Weekly Roundup: February 12 - February 18, 2024

Smt Usha Verma And Another vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 80

Ashok Sharma vs. State of U.P. and Another 2024 LiveLaw (AB) 81

Satyapal And Anr. vs. State of U.P. 2024 LiveLaw (AB) 82

Rajendra vs. State of U.P. and Another 2024 LiveLaw (AB) 83

2024 LiveLaw (AB) 84

Durga Prasad vs. State 2024 LiveLaw (AB) 85

Dhirendra And 2 Ors vs. State of U.P. and Another 2024 LiveLaw (AB) 86

Saurabh Kalani v. Stressed Asset Stabilisation Fund And 7 Others 2024 LiveLaw (AB) 87

Arpit Shukla v. State Of U.P. And 4 Others 2024 LiveLaw (AB) 88

Kumari Nisha v. State Of U.P. And 3 Others 2024 LiveLaw (AB) 89

Shivam Kashyap vs. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Affairs Lko. And Another 2024 LiveLaw (AB) 90

M/S John Oakey And Mohan Limited vs. The Commissioner Commercial Taxes U.P. Lucknow 2024 LiveLaw (AB) 91

Shivangi Sharma vs. State Of U.P. Thru. Prin. Secy. Ayush Deptt. U.P. Civil Secrett. Lko. And 2 Others 2024 LiveLaw (AB) 92

Urvashi v. State Of U.P. And 4 Others 2024 LiveLaw (AB) 93

The Commissioner Commercial Tax U.P. Lucknow vs. S/S. D.I.C. India Ltd. 2024 LiveLaw (AB) 94

Ms Atlas Cycles Haryana Ltd v. State of U.P. and Another 2024 LiveLaw (AB) 95

M/S Hawkins Cookers Limited vs. State Of U.P. And 2 Others 2024 LiveLaw (AB) 96

Visible Alpha Solutions India Private Limited vs. Commissioner, CGST Appeals, Noida And Another 2024 LiveLaw (AB) 97

2024 LiveLaw (AB) 98

ORDERS/JUDGMENTS OF THE WEEK

Writ Petition Has To Be Drafted Carefully, Reliefs Sought Must Be Supported By Pleadings: Allahabad High Court Rejects Claim For Payment Of Gratuity

Case Title: Smt Usha Verma And Another vs. State Of U.P. And 3 Others 2024 LiveLaw (AB) 80 [WRIT - A No. - 18971 of 2022]

Case citation: 2024 LiveLaw (AB) 80

The Allahabad High Court has observed that a petition must be carefully drafted, disclosing all relevant facts for grant of relief sought by the petitioner.

While dealing with a bunch of cases relating to payment of gratuity under the Payment of Gratuity Act, 1972, Justice Saurabh Shyam Shamshery observed that

“In order to make out a case to grant the relief sought, a writ petition has to be drafted very carefully. Pleadings are essential part of any litigation. The relief sought should be supported by pleadings. The present bunch of writ petitions are example of it where the prayers sought are not only vague but not supported by material pleadings also. Even the petitioners have approached this Court by not disclosing entire relevant facts which goes adverse to their case, i.e., petitioners have not approached this court with clean hands.”

NI Act Doesn't Prescribe Who Will Represent Company Which Is Complainant U/S 138, Can Be Represented By An Employee: Allahabad High Court

Case Title: Ashok Sharma vs. State of U.P. and Another 2024 LiveLaw (AB) 81 [APPLICATION U/S 482 No. - 18652 of 2016]

Citation: 2024 LiveLaw (AB) 81

The Allahabad High Court has held that Section 142 of the Negotiable Instruments Act,1881 and Section 200 of the Criminal Procedure Code do not prescribe who can file a complaint on behalf of a company under Section 138 of the Negotiable Instruments Act,1881.

The Court held that when company is the payee, the complaint must be registered in the name of the company.

“Section 142 of the N.I.Act does not specify as to who should represent the company, if the company is the complainant. A company can be represented by an employee or even by a known employee, who is duly authorized and empowered to represent the company either by resolution or by a power of attorney,” held Justice Prashant Kumar.

NDPS Act | Samples Not Drawn In Magistrate's Presence As Per S. 52A Can't Be Treated As Primary Evidence During Trial: Allahabad HC

Case title - Satyapal And Anr. vs. State of U.P. 2024 LiveLaw (AB) 82 [CRIMINAL APPEAL No. - 6549 of 2018]

Case citation: 2024 LiveLaw (AB) 82

The Allahabad High Court reiterated that samples not drawn from the bulk in the presence of a Magistrate as per the mandate of Section 52A of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) can't be treated as a valid piece of primary evidence in the trial.

For context, Section 52A (2), (3) and (4) of the provide that when seized contraband is forwarded to the officer-in-charge of the nearest police station, the officer must draw samples from the seized goods in the presence of a magistrate who shall certify its correctness. It is further provided that the inventory or the photographs of the seized substance and any list of samples in connection thereof on being certified by the Magistrate shall be recognized as primary evidence in connection with the offences alleged under the NDPS Act.

S. 138 NI Act | Demand Notice Sent To Cheque Drawer Via Email/WhatsApp Is Valid: Allahabad High Court

Case title - Rajendra vs. State of U.P. and Another 2024 LiveLaw (AB) 83 [APPLICATION U/S 482 No. - 45953 of 2023]

Case citation: 2024 LiveLaw (AB) 83

In a significant ruling, the Allahabad High Court has held that a demand notice sent to the drawer of a cheque through 'email or WhatsApp' under Section 138 of the Negotiable Instrument for the dishonour of a cheque, is a valid notice and the same shall be deemed to be dispatched and served on the same date, if it fulfils the requirement of Section 13 of the Information Technology Act.

For context, Section 13 of the IT Act provides that as soon as the notice in electronic form is entered, a computer resource outside the control of the originator, it is deemed to be dispatched and as soon as the notice in electronic form is entered, the designated computer resource or enters the computer resources of the addressee, and then it is deemed to be served.

'Law Must Yield To Justice': Allahabad High Court Permits Woman With 4 Biological Children To Adopt Child Despite Legal Bar

Case citation: 2024 LiveLaw (AB) 84

The Allahabad High Court permitted a woman having four biological children to adopt a child, despite a legal bar under Adoption Regulations 2022, notified by the Central Government in exercise of powers under Section 68(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Rule 5 of the Adoption Regulations provides that couples with two or more children shall only be considered for adoption of special needs children and hard to place children, unless they are relatives or step-children.

In this regard, while giving the custody of X to the petitioner, her foster parent, the bench comprising Justice Saumitra Dayal Singh and Justice Manjive Shukla observed,

“While the law could not prevent the petitioner from giving birth to another child, it has been relied to deprive the petitioner from bringing up another child as her own. To take away X from the petitioner is the easiest part in law but it is not possible for law to find another set of parents X may identify as its own. Therefore, law must yield to justice that otherwise commends that the child X must remain in the care of those it perceives to be its parents, especially the petitioner in whom it has found its mother.”

'Injury Caused By Throwing A Piece Of Brick Not An Injury Likely To Cause Death': Allahabad HC Alters Murder Conviction To 'Grievous Hurt'

Case title - Durga Prasad vs. State 2024 LiveLaw (AB) 85 [CRIMINAL APPEAL No. - 651 of 1989]

Case citation: 2024 LiveLaw (AB) 85

The Allahabad High Court altered the conviction of a man for the offence of 'murder' under Section 302 IPC to one of 'voluntary causing grievous hurt' under Section 325 IPC as it noted that though the accused had caused an injury to the victim by throwing a piece of brick at him, the said injury cannot be categorised as an injury likely to cause death.

The bench of Justice Rajan Roy and Justice Jyotsna Sharma observed that for deducing the requisite intention or knowledge of the accused, it has to be seen whether he was aware of the consequences which shall follow or likely to follow as a direct consequence of his act.

“Where such an awareness of the direct consequences or the higher degree of probability cannot be attributed to the accused, the offence may not fall either under section 302 IPC or section 304 IPC, In our firm opinion, in such cases the offence may be covered under section 323, 324 and 325 IPC as the case may be,” the Court remarked.

Mere Use Of Abusive Language Or Being Discourteous/Rude By Itself Doesn't Amount To Offence U/S 504 IPC: Allahabad HC

Case title - Dhirendra And 2 Ors vs. State of U.P. and Another 2024 LiveLaw (AB) 86 [APPLICATION U/S 482 No. - 18245 of 2018]

Case citation: 2024 LiveLaw (AB) 86

The Allahabad High Court observed that mere use of abusive language or being discourteous to the opponent or rude would not by itself amount to any intentional insult within the meaning of Section 504 of the Indian Penal Code (Intentional insult with intent to provoke breach of the peace).

The court added that for an act to come under the purview of this offence, it has to be shown that the nature of abusive language or insult was such that is likely to insult a person or to commit a breach of the peace or commit an offence

DRT | Rejection Of Application Under Order 7 Rule 11 Will Not Operate As Res Judicata On Deciding Issue Of Limitation: Allahabad High Court

Case Title: Saurabh Kalani v. Stressed Asset Stabilisation Fund And 7 Others [WRIT - C No. - 35362 of 2023]

Case citation: 2024 LiveLaw (AB) 87

The Allahabad High Court has held that rejection of application under Order VII Rule 11 of the Civil Procedure Code will not operate as res judicata on deciding issue of limitation raised at the time of final hearing.

The Court held that question of limitation being a mixed question of law and fact requires evidence to be led by contesting parties. The issue of limitation as such cannot be decided at the stage of deciding application under Order VII Rule 11 of CPC unless the pleading in the plaint show the plaint to be barred by limitation, it said.

Compassionate Appointment Cannot Be To A Post Higher Than That Held By Deceased Employee: Allahabad High Court Reiterates

Case Title: Arpit Shukla v. State Of U.P. And 4 Others [WRIT - A No. - 19344 of 2023]

Case citation: 2024 LiveLaw (AB) 88

The Allahabad High Court has reiterated that the compassionate appointment cannot be granted on a higher post than the post which was held by the deceased employee, despite the applicant having higher educational qualifications.

Relying on the decision of the Supreme Court in Suneel Kumar vs. State of U.P. and others and the observations given by the Apex Court while reversing the decision of Allahabad High Court in Smt. Premlata vs. State of U.P. and others, Justice Neeraj Tiwari held,

“Apex Court had twice interpreted the Rule 5 Rules 1974 as well as suitable employment as referred herein. Apex Court has clearly held that "suitable employment" in Rule 5 must be construed with the post held by the deceased employee and not by the higher qualification held by the dependent. View of the Apex Court is that compassionate appointment shall not be given upon a higher post than the post held by the deceased employee. Therefore, as on date, law of land is that legal heir cannot be given appointment on compassionate ground to a post higher than the post held by the deceased employee.”

No Restriction On Extending Compassionate Employment To Daughter Of Deceased Employee If Son Already In Govt Employment: Allahabad High Court

Case Title: Kumari Nisha v. State Of U.P. And 3 Others [WRIT - A No. - 16068 of 2023]

Case citation: 2024 LiveLaw (AB) 89

The Allahabad High Court has held that the statutory condition for not granting compassionate appointment if the spouse of the deceased employee is already in government employment is only limited to the spouse and cannot be extended to children of the deceased employee.

The Court held that the son being in government employment at the time of the death of his father would be irrelevant since his earning may be utilized for providing for his own family, wife and children.

Orders Appealable U/S 14A Of SC/ST Act Can't Be Challenged U/S 482 Of CrPC: Allahabad High Court

Case title - Shivam Kashyap vs. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Affairs Lko. And Another 2024 LiveLaw (AB) 90 [APPLICATION U/S 482 No. - 12798 of 2023]

Case citation: 2024 LiveLaw (AB) 90

The Allahabad High Court observed that in cases where an appeal against an order would lie under Section 14A of the SC/ST (Prevention of Atrocities) Act, 1989, the aggrieved person cannot invoke the inherent jurisdiction of the High Court under Section 482 CrPC to challenge the order.

A bench of Justice Subhash Vidyarthi observed thus while relying upon a full bench judgment of the High Court in the case of Ghulam Rasool Khan and others v. State of U.P. and others wherein it was held that an aggrieved person, having a remedy of appeal under Section 14A of the 1989 Act, cannot be allowed to invoke the inherent jurisdiction of this Court under Section 482 CrPC.

Res-Judicata Does Not Apply In Tax Matters, But Doctrine Of Finality Applies Unless There Is Marked Change: Allahabad High Court

Case Title: M/S John Oakey And Mohan Limited vs. The Commissioner Commercial Taxes U.P. Lucknow 2024 LiveLaw (AB) 91 [ SALES/TRADE TAX REVISION No. - 206 of 2022]

Case Citation: 2024 LiveLaw (AB) 91

The Allahabad High Court has held that the principle of res-judicata does not apply from one assessment year to another. However, the Court held that the Department cannot be allowed to change its stance for the same assesee for different assessment years, unless there is a marked change from one year to another.

Relying on the decision of the Supreme Court in Bharat Sanchar Nigam Ltd. v. Union of India, Justice Shekhar B. Saraf held that

“One may of course keep in mind that in taxation matters, the principles of res-judicata do not apply squarely for one assessment year to the other. However, keeping in mind the doctrine of finality, unless there is a marked change from one assessment year to the other, the department cannot be allowed to take a different stand.“

NEET | Medical College Can't Retain Fees If Student Resigns From Allotment Made In First Counselling Itself: Allahabad High Court

Case Title: Shivangi Sharma vs. State Of U.P. Thru. Prin. Secy. Ayush Deptt. U.P. Civil Secrett. Lko. And 2 Others 2024 LiveLaw (AB) 92 [WRIT - C No. - 6606 of 2023]

Case Citation: 2024 LiveLaw (AB) 92

The Allahabad High Court has held that fees deposited by a student at the time of counselling is quid pro quo for studies imparted to such student by the institution.

While directing the respondent college to refund the fee deposited by the student at the time of first counselling, who is now seeking admission elsewhere, Justice Manish Mathur observed that

“In case a student resigns from the allotment made in the first counselling itself, clearly no studies have been imparted to such a student and therefore permitting such a College to retain fees deposited by a student would in fact amount to unjust enrichment. It is the opinion of this Court, that fees deposited by a student is as a quid pro quo for studies imparted to such student. This is more so, as in the present case where subsequent rounds of counselling including mop up rounds of counselling have taken place.”

Allahabad HC Upholds Cancellation Of Appointment Of Asst Teachers Who Were Unfairly Awarded Higher Marks In Entrance Test, Imposes 5K Costs On Each Candidate

Case Title: Urvashi v. State Of U.P. And 4 Others [WRIT - A No. - 15229 of 2019]

Case citation: 2024 LiveLaw (AB) 93

While dealing with a challenge against the cancellation of appointment of Assistant Teachers in the Basic Education Department based on the re-evaluation of answer booklets, the Allahabad High Court has held that less meritorious candidates cannot be allowed to continue on the posts at the cost of meritorious candidates.

The Court held that in the absence of a challenge to the process of re-evaluation, merely citing the lack of statutory provisions, cannot be a reason to disregard the process and accommodate less meritorious candidates who were selected based on fraudulent tabulation of marks.

“Fairness is the soul of any competitive examination. Any compromise of merit would betray confidence and trust of meritorious candidates on examination system and in case some irregularity is detected during process of examination and there is a scope to cure it, in the interest of justice and to maintain fairness, an endeavour has to be taken to cure it,” held Justice Saurabh Shyam Shamshery.

UPVAT Act | Revision Jurisdiction Of High Court Limited To Questions Of Law, Jurisdictional Errors Or Procedural Irregularities: Allahabad High Court

Case Title: The Commissioner Commercial Tax U.P. Lucknow vs. S/S. D.I.C. India Ltd. 2024 LiveLaw (AB) 94 [SALES/TRADE TAX REVISION NO.- 36 of 2021]

Case citation: 2024 LiveLaw (AB) 94

The Allahabad High Court has held the revision jurisdiction under Section 58 of the Uttar Pradesh Value Added Tax Act, 2008 is limited to questions of law, jurisdictional errors, or procedural. The Court held that the High Court must refrain from going into questions of facts which have been decided by the Tribunal.

Section 58 of the Uttar Pradesh Value Added Tax Act, 2008 provides that any person aggrieved by the order passed under Section 57(7) or Section 57(8) of the UPVAT Act can file a revision before the High Court on grounds that the case involves questions of law. The limitation for filing such revision is ninety days from the service of such orders.

“In exercise of revisional jurisdiction, the High Court has a limited mandate. The scope of revisional jurisdictional, is primarily focused on questions of law, jurisdictional errors, or procedural irregularities. The High Court in a revision petition must refrain from engaging in a de novo inquiry into factual matters already adjudicated upon by the Tribunal, unless compelling grounds warranting such intervention are made,” held Justice Shekhar B. Saraf.

S.75(4) UPGST Act | Failure To File Reply To Show-Cause Notice Does Not Take Away Right Of Personal Hearing: Allahabad High Court

Case Title: Ms Atlas Cycles Haryana Ltd v. State of U.P. and Another 2024 LiveLaw (AB) 95 [WRIT TAX No. - 144 of 2024]

Case citation: 2024 LiveLaw (AB) 95

The Allahabad High Court has held that not filing a reply to a show cause notice does not take away the opportunity for personal hearing mandated under Section 75(4) of the Uttar Pradesh Goods and Service Tax Act, 2017.

Section 75(4) of the UPGST Act provides that an opportunity for a hearing must be granted if requested in writing or where any adverse action is contemplated against such person.

The bench comprising of Justice Saumitra Dayal Singh and Justice Manjive Shukla held that there is a dual requirement engrained in the principles of natural justice.

“First with respect to submission of written reply and the second with respect to oral hearing. Failure to avail one opportunity may not lead to denial of the other. The two tests have to be satisfied independently.”

Govts Should Collect Taxes Like Honeybee, Without Disturbing Petals: Allahabad High Court While Quashing Penalty Order Against Hawkins

Case Title: M/S Hawkins Cookers Limited vs. State Of U.P. And 2 Others 2024 LiveLaw (AB) 96 [WRIT TAX No. - 739 of 2020]

Case citation: 2024 LiveLaw (AB) 96

While quashing penalty order passed under Section 129 of the Goods and Service Tax Act, 2017 against M/s Hawkins Cookers Limited, the Allahabad High Court cited the Arthashastra by Chanakya.

“Governments should collect taxes like a honeybee collects honey from a flower without disturbing its petals.”

The Court held that in absence of any other discrepancy, incorrect address entered in four out of eight e-way bills is of the principal place of business of the petitioner, the same does not give rise to the presumption of intention to evade tax. Justice Shekhar B. Saraf held that “mere technical error committed by the petitioner cannot result in imposition of such harsh penalty upon the petitioner.”

Rule 108 CGST Rules | Self-Certified Copy Of Order Under Challenge Not Required For Appeals Filed Electronically: Allahabad High Court

Case Title: Visible Alpha Solutions India Private Limited vs. Commissioner, CGST Appeals, Noida And Another 2024 LiveLaw (AB) 97 [Writ Tax No. 83 of 2024]

Case citation: 2024 LiveLaw (AB) 97

The Allahabad High Court has held that requirement of self-certified copy of order is not applicable to the appeals filed electronically under Section 107 of the Central Goods and Service Tax Act, 2017 read with Rule 108 of the Central Goods and Services Tax Rules, 2017.

Section 107 of the Central Goods and Services Tax Act, 2017 provides for remedy of appeal to any person aggrieved by any order passed under the Act. Rule 108 of the Central Goods and Services Tax Rules, 2017 provides that the appeal under Section 107 must be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner.

True Love Between Adolescents Can't Be Controlled Through Rigours Of Law Or State Action: Allahabad High Court

Case citation: 2024 LiveLaw (AB) 98

The Allahabad High Court has observed that true love between two individuals, one or both of whom may be minors or minors on the verge of majority, cannot be controlled through rigours of law or State action.

Justice Rahul Chaturvedi's bench further noted that in cases where couples being adults, enter into marriage, the action of their parents of filing FIRs against the husband-boy, is like poisoning their marital relationship.

The Single Judge also observed that the Court have to sometimes grapple with justifying State/Police action against a teenage couple who marry, lead peaceful lives, and raise families, while also upholding respect for the law.

"This Court has time and again reached to the conclusion that true love between the individuals, one or both of who may be a minor or at the verge of majority, cannot be controlled through rigours of law or State action," the Court remarked.

"When the scale of justice has to be weighed, they are not on the basis of mathematical precision or the mathematical formulas or theorems, but at times, while on one side of the scale there is the law and other side of scale may carry the entire life, happiness and the future of toddlers, their parents and the parents of their parents. The scale that reflects and portrays such pure happiness sans any criminality would definitely equal the scale carrying the law as the application of law is meant for maintaining the rule of law and an orderly society," it added.