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Himachal Pradesh High Court Half...

Himachal Pradesh High Court Half Yearly Roundup [January - June 2023]

Basit Amin Makhdoomi

5 Aug 2023 12:00 PM GMT

Can Sessions Court Sit Anywhere Else Than Its Court Premises To Conduct Trial? Himachal Pradesh High Court Explains

Case Title: Court on its own motion v. State of H.P. & Anr.

Citation: 2023 LiveLaw (HP) 6

While answering a reference made by an Additional District & Sessions Judge, the Himachal Pradesh High Court has clarified that a Sessions Judge can sit at any place other than his Court premises, within his Sessions division, to record evidence and conduct a trial.

Referring to Section 9(6) of the Code of Criminal Procedure, the Single Judge Bench of Justice Satyen Vaidya stated:

“The learned Additional Sessions Judge exercises the jurisdiction vested in the Court of Session. As per sub section (6) of Section 9 quoted above, a Court of Session is authorized to hold its sittings at any place in the Sessions Division other than the place specified by the High Court by notification, in case, the Court of Session is of opinion that it will tend to the general convenience of the parties and the witnesses.”

Himachal Pradesh High Court Bans Cutting Of Hills Without Prior Permission From Town And Country Planning Director

Case Title: Kusum Bali Vs State of HP & Ors.

Citation: 2023 LiveLaw (HP) 7

The Himachal Pradesh High Court directed the State government to frame a policy for conservation, preservation and cutting of hills in consultation with the Department of Environment, Science and Technology and such other departments, as may be necessary, within two months.

The direction came from a bench comprising then Chief Justice A A Sayed and Justice Jyotsna Rewal Dua while hearing a Public Interest Litigation in terms of which the petitioner had highlighted the indiscriminate and haphazard constructions on either side of the road stretching an area of 6 Kilometers between Village Kheel Jhalsi to Village Kainthari (including Village Koro) in District Solan.

Person Ineligible To Act As Arbitrator U/s 12(5) Cannot Appoint Another Arbitrator For Determining The Dispute: Himachal Pradesh High Court

Case Title: Divisional Manager, H.P. State Forest Development Corporation Ltd Vs Prem Lal

Citation: 2023 LiveLaw (HP) 8

The Himachal Pradesh High Court ruled that any person who becomes ineligible to act as an Arbitrator in terms of Section 12(5) of the Arbitration and Conciliation Act cannot appoint/nominate another Arbitrator for determining the dispute.

Section 12(5) provides that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject-matter of the dispute falls under any of the categories specified in the Seventh Schedule, shall be ineligible to be appointed as an arbitrator.

"Any appointment of other person nominated by such person as an Arbitrator for determining the dispute arising under the arbitration agreement is void ab initio. The proceedings so conducted will be non est. The awards passed by such person, if any, are also void," it said.

[S.147 Negotiable Instruments Act] Offence Can Be Compounded Post-Conviction For Cheque Dishonour: Himachal Pradesh High Court

Case Title: Naresh Kumar Vs Trilok Chand.

Citation: 2023 LiveLaw (HP) 9

The Himachal Pradesh High Court observed that courts while exercising power under Section 147 (Offences To Be Compoundable) of the Negotiable Instrument Act are sufficiently empowered to proceed to compound an offence, even in cases where accused stands convicted.

Relying on the apex court judgment in Damodar S. Prabhu v. Sayed Babalal H. (2010), the bench said that notwithstanding the fact that a judgment of conviction and order of sentence recorded by trial Court has been further upheld by this Court but Section 147 of the Act sufficiently empowers this Court to compound the offence after recording of conviction and hence there appears to be no impediment in accepting the prayer made in the application.

State Cannot Deny Pay Parity Of Veterinarians With Medicos Just Because They Deal With Animals: Himachal Pradesh High Court

Case Title: Pankaj Kumar Lakhanpal & ors Vs State of HP & Ors.

Citation: 2023 LiveLaw (HP) 10

Observing that Veterinary Doctors are at par with Medical Doctors, the Himachal Pradesh High Court on Thursday ruled that State cannot deny the grant of 4-tier pay scale to the Veterinary Officers on a flimsy ground, that they are dealing with animals and the doctors serving in the Health and Family Welfare Department are dealing with humans.

HP Land Revenue Act | Discretion Vested In Revenue Officer To Convert Itself As A Civil Court To Decide Plea Of Adverse Possession: High Court

Case Title: Sh. Amin Chand Vs State of Himachal Pradesh.

Citation: 2023 LiveLaw (HP) 11

The Himachal Pradesh High Court ruled that though for adjudicating the plea of adverse possession under Himachal Pradesh Land Revenue Act, 1954, discretion is vested with the Revenue Officer (not below the rank of Assistant Collector 1st Grade) either to convert itself as a Civil Court or to decide it otherwise, but, the discretion so vested is judicial discretion and cannot be exercised capriciously.

The bench explained that since the authority exercises quasi judicial functions under section 163, the discretion mandatorily has to be exercised objectively. The Assistant Collector 1st Grade has to elaborate reasons, in case he decides against option to convert itself to a Civil Court, the bench underscored.

Article 311 | Every Conviction Cannot Entail Automatic & Mechanical Removal Of Convicted Employee: Himachal Pradesh High Court

Case Title: Mohinder Singh Vs Himachal Pradesh Transport Corporation.

Citation: 2023 LiveLaw (HP) 12

The Himachal Pradesh High Court on Monday ruled that the provisions contained in proviso (a) to Clause (2) of Article 311 of the Constitution of India read with Rule 19(i) of CCS (CCA) Rules 1965 certainly provide that on conviction an employee can be dismissed/removed/reduced in rank, without conducting any enquiry, but it cannot be construed that every such conviction shall be followed by an automatic and mechanical removal of the convicted employee.

Reservation Is Like Crutches- Provided Only To Weak; No Separate Reservation For All Sections Of Society: Himachal Pradesh High Court

Case Title: Sunita Sharma Vs State Of Himachal Pradesh.

Citation: 2023 LiveLaw (JKL) 13

The Himachal Pradesh High Court observed that reservation may be equated with crutches which are not necessitated to be provided to healthy people but definitely to those who are not able or permitted to stand on their legs or whose legs are weak for deprivation of healthy atmosphere and equal status in the society. Therefore, there is no provision for providing separate reservation to all sections of society, it clarified.

"As a matter of fact "General Category” means all classes, including the categories for whom reservation has been provided. Seats meant for General Category cannot be filled by excluding any person of any category who is otherwise eligible and entitled for that on his own merit", Justice Thakur underscored.

Sec 102 CrPC | Police Officer Empowered To Seize Property Only If Found Under Circumstances Creating Suspicion Of Any Offence: Himachal Pradesh HC

Case Title: Anita Aggarwal Vs State of HP

Citation: 2023 LiveLaw (HP) 14

The Himachal Pradesh High Court ordered defreezing of the account of an accused observing that Section 102 CrPC (Power of police officer to seize certain property) empowers the Police Officer to seize certain property on existence of a condition that the said property should have been alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of commission of any offence.

[Land Acquisition] Sale Deed Relevant Factor For Determining Just & Fair Compensation: Himachal Pradesh High Court

Case Title: M/s Gujrat Ambuja Cement Factory, Darlaghat & others Vs Sukh Ram (deceased) through LRs & others

Citation: 2023 LiveLaw (HP) 15

The Himachal Pradesh High Court ruled that for determining the value of a piece land, both transactions, i.e. acquisition of land vide Award as well as sale deed are relevant for determining the value of land and, therefore, for arriving at just and fair value of land, it would be appropriate to consider both these transactions and determine the value of land accordingly.

Expounding the law on the determination of market value of land for acquisition, the court observed that it is the purpose for which the land is acquired which is relevant and not nature and classification of land and where nature and classification of the land has no relevance for purpose of acquisition, market value of the land is to be determined as a single unit irrespective of nature and classification of the land.

Himachal Pradesh High Court Refuses To Interfere With State's Policy Refusing Permission To Open New Veterinary Institutes

Case Title: Batt Educational Society Vs State of H. P. & Ors.

Citation: 2023 LiveLaw (HP) 16

The Himachal Pradesh High Court dismissed a plea challenging State's policy to not grant permission to open new Veterinary Pharmacist Institutes, with the objective of bringing uniformity and curtailing their mushrooming growth.

The bench comprising Justices Tarlok Singh Chauhan and Mr. Justice Virender Singh observed,

"The raison d'être of discretionary power is that it promotes the decision-maker to respond appropriately to the demands of a particular situation. When the decision- taking is policy-based, judicial approach to interfere with such decision making becomes narrower".

Some Leeway To Condone Delay In Cases Of Govt Cannot Be Construed As Absolute License To Flout Law: Himachal Pradesh High Court

Case Title: State of HP Vs Kansi Ram

Citation: 2023 LiveLaw (HP) 17

Dismissing an application seeking condonation of delay filed by the Himachal Pradesh government, the High Court on Friday observed that the law has equal balance for all and though some leeway is permissible in the case of government but that cannot be construed as an absolute license to flout the law at whims.

Highlighting the rigors of Limitation Act that apply equally to all including the Government, Justice Vaidya observed that the sufficiency of a cause for condonation of delay can be assessed keeping in view the facts and circumstances of each particular case. Applicants have not been able to assign any reasons whatsoever for delay in filing the appeal specially after the certified copy of the award was obtained and undue laxity of government officials needs strongest deprecation, the court underscored.

Drug Menace A Serious Invasion Into Social Structure, Even Adolescents Not Spared: Himachal Pradesh High

Case Title: Anil Kumar Vs State of HP

Citation: 2023 LiveLaw (HP) 18

Dismissing an application for pre arrest bail in an FIR for offences under the NDPS Act the Himachal Pradesh High High Court observed that the drug menace is a serious invasion in the social structure that needs to be curbed with heavy hands and for such purpose, police must have the proper access to the accused which may be by way of custodial interrogation in appropriate cases.

If Building Has Potential To Fetch Higher Revenue Post Reconstruction, Proving 'Dilapidated Condition' For Evicting Tenant Not Necessary: HP High Court

Case Title: Rattan Chand Vs Madhu Bharat Chadha & another.

Citation: 2023 LiveLaw (HP) 19

The Himachal Pradesh High Court ruled that when a building is situated in a commercial location having possible potential to fetch higher income after reconstruction/rebuilding, tenants may be evicted for such bonafide requirement of the landlord and the requirement of demonstrating the dilapidated condition of the building for enforcing eviction is not necessary in such cases.

Water Property Of State, Not Private Entitlement Of Villagers Who Use It: Himachal Pradesh HC Refuses To Interfere With Construction Of Dam

Case Title: Rajesh Kumar & Ors Vs State of H. P. & Ors.

Citation: 2023 LiveLaw (HP) 20

The Himachal Pradesh High Court observed that it is a misconception that water belongs to the villagers who use the same. Water is the property of the State and no individual has any right to claim this as his property, even though the same might be situated within his personal property, it clarified.

Highlighting the Constitutional provisions under Article 48A and 51A prescribing the duties of the Sate in matters of environment, the bench siad that the said constitutional provisions, clearly propounded the doctrine of public trust and the said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.

Arbitrator Under The National Highways Act Has To Give An Award Within 1 Year, Failure Can Result In Termination Of The Mandate: HP High Court

Case Title: Ganga Ram v. Special Land Acquisition Officer

Citation: 2023 LiveLaw (HP) 21

The High Court of Himachal Pradesh held that the arbitration proceedings under the National Highways Act, 1956 are governed by the Arbitration and Conciliation Act, 1996, thus, the arbitrator so appointed by the Central Government under Section 3G(a) of the National Highways Act is bound to follow the provisions of the A&C Act.

The bench of Justice Sushil Kukreja held that in terms of Section 29(A) of the A&C Act, the arbitrator is mandated to deliver an award within 1 year from the date of entering reference and non-compliance with this provision will result in the termination of the mandate of the arbitrator. The Court held that the same provision also applies to a statutory arbitration governed by the A&C Act, thus, the mandate of the arbitrator under National Highways Act will stand terminated if the award is not delivered within the stipulated time-period.

EPF Act | Reasoned Order Of Tribunal Waiving Pre-Deposit U/S 7-O Cannot Be Intervened With Unless Palpably Illegal: Himachal Pradesh High Court

Case Title: M/s Bio Veda Action Research Company Vs The Regional Provident Fund Commissioner-II, Shimla

Citation: 2023 LiveLaw (HP) 22

The Himachal Pradesh High Court ruled that a reasoned order of a Tribunal while hearing an application seeking waiver u/s 7-O of the Employee Provident Fund Act to deposit the amount as mandated under Sec 7A cannot be interfered with, unless the said order is either without jurisdiction or Palpably Illegal.

Under the Section 7A of the Employee Provident Fund Act, the appeal of the employer cannot be entertained by the Tribunal unless the employer deposits 75% of the amount held due from him.

Married Couple's Access To Each Other Conclusively Determines Child's Legitimacy U/S 112 Evidence Act: Himachal Pradesh High Court

Case Title: Anil Kapoor Vs Dipika Chauhan

Citation: 2023 LiveLaw (HP) 23

The Himachal Pradesh High Court has held that if a couple is having access to each other, it is conclusive proof of the legitimacy of a baby and hence, the presumption under Section 112 of the Indian Evidence Act, 1872 gets attracted.

“Unless the absence of access is established, the presumption of legitimacy cannot be displaced. Where the husband and wife have co-habited together and no impotency is proved, the child born from their wedlock is conclusively presumed to be legitimate, even if the wife is shown to have been, at the same time, guilty of infidelity”, the bench maintained.

S.138 NI Act | Clarity In Making 'Demand' An Essential Legal Requirement For Cheque Bounce Notices: Himachal Pradesh High Court

Case Title: Dolma Devi Vs Roshan Lal

Citation: 2023 LiveLaw (HP) 24

The Himachal Pradesh High Court ruled that the statutory provisions in the form of Section 138 Negotiable Instrument Act indicate in unmistakable terms as to what should be clearly indicated in the notice and what manner of demand it should make. Clarity in making the demand is an essential prerequisite for cheque bouncing cases, it emphasised.

Himachal Pradesh High Court Calls For Judicious Use Of Provision For Additional Evidence U/S 391 CrPC, Cautions Against Disguised Retrials

Case Title: Kewal Krishan Vs State of HP

Citation: 2023 LiveLaw (HP) 25

The Himachal Pradesh High Court has reiterated that the powers under Section 391 CrPC are to be exercised judiciously and not for mere asking, and the additional evidence should not be a way to re-try the case or alter the charges.

Justice Joytsna Rewal Dua observed,

"The trial has ended after full 13 years in the acquittal of the accused persons (respondents No.2 and 3). By allowing the prayer made in the application great prejudice shall be caused to the accused persons as it would virtually amount to retrial".

Appeal Against Dismissal Of S. 8 Application Filed Before Commencement Of 2015 Arbitration Amendment Act, Not Maintainable: Himachal Pradesh High Court

Case Title: Graviss Foods Private Limited vs. M/s Ice Cream Garden & Anr.

Citation: 2023 LiveLaw (HP) 26

The Himachal Pradesh High Court reiterated that the amendment incorporated in Section 37 (1) (a) of the Arbitration and Conciliation Act, 1996 (A&C Act) by the Arbitration and Conciliation (Amendment) Act, 2015, which provides for an appeal against an order of the court refusing to refer the parties to arbitration under Section 8, is prospective in nature. Thus, the same will apply to court proceedings which have commenced on or after the Amendment Act came into force, i.e., 23.10.2015.

Exercising Power Of Judicial Review To Enter Merits Of Selection Process Tantamount To Treading On Thin Sheet Of Ice: HP High Court

Case Title: Santosh Nanta Vs State of H.P. & Ors.

Citation: 2023 LiveLaw (HP) 27

The Himachal Pradesh High Court observed that exercising the power of judicial review to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, tantamount to treading on a thin sheet of Ice.

The Bench comprising Justice Jyotsna Rewal Dua observed that

“It would be indeed, treading on thin ice, if the Courts were to venture into reviewing the decision of experts who form part of a selection board. It is not within the domain of the Courts, exercising the power of judicial review to enter into the merits of a selection process, a task which is the prerogative of and is within the expert domain of a Selection Committee, subject of course to a caveat that if there are proven allegations of malfeasance or violations of statutory rules, only in such cases of inherent arbitrariness, can the Courts intervene."

Two Categories Of Posts Do Not Necessarily Enjoy Same Pay Scales Merely Because Their Further Channel Of Promotion Is Same: Himachal Pradesh High Court

Case Title: Ramesh Chand Verma Vs H.P. Agro Industries Corporation Ltd. and others

Citation: 2023 LiveLaw (HP) 28

The Himachal Pradesh High Court has recently ruled that just because two positions share a common path for advancement doesn't mean they should have the same pay scale and factors such as separate governing Rules, varying modes of recruitment, distinct qualifications, and unique job profiles should be considered.

Each position deserves compensation based on its own merits, rather than simply based on the common promotion path, it clarified.

Pension | Qualifying Service Of Regular Employee Starts From Day They Take Charge Of First Post, Whether Temporary Or Substantive: HP High Court

Case Title: Dr Umesh Kumar Vs State of Himachal Pradesh.

Citation: 2023 LiveLaw (HP) 29

The Himachal Pradesh High Court ruled that a regular government employee's qualifying service starts from the day (s)he takes charge of their first post, whether it's temporary, officiating or substantive, in terms of the Rule 13 of the Civil Service and Pension Rules 1972.

Bail Can't Be Denied Solely On Seriousness Of Accusations, Specific Allegations Against Accused & Evidence Must Be Considered: HP High Court

Case Title: Kiran Vs State of Himachal Pradesh

Citation: 2023 LiveLaw (HP) 30

The Himachal Pradesh High Court ruled that the court cannot deny bail based solely on the seriousness of the accusations and potential punishment and other factors, such as the allegations against the accused and available evidence, must be considered and balanced while deciding the application for bail.

Land Acquisition Act | Market Value Assessment Should Be Avoided On Post-Notification Exemplar Sales: Himachal Pradesh High Court

Case Title: Principal Secretary PWD Vs Mehr Chand

Citation: 2023 LiveLaw (HP) 31

The Himachal Pradesh High Court while hearing a series of appeals filed under Section 54 of the Land Acquisition Act observed that assessment of market value should be avoided on exemplar sale transactions that have taken place after issuance of notification under Section 4 (Publication of preliminary notification) of the Land Acquisition Act.

S.64 Right To Fair Compensation Act: HP High Court Rules Collector Bound To Refer Objections Against Land Acquisition Award To Appropriate Authority

Case Title: Reta Ram Vs Land Acquisition Collector.

Citation: 2023 LiveLaw (HP) 32

The Himachal Pradesh High Court ruled that in terms of Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the Collector has a duty to refer the objections raised against land acquisition award to the appropriate authority.

"The provision of Section 64 of 2013, Act does not leave any discretion with the Land Acquisition Collector to determine the issue himself. On receipt of an application with objection on any of the ground enumerated above, the Collector has to refer the matter to the authority," Justice Satyen Vaidya observed.

Can Rigour On Bail U/S 37 NDPS Act Have Same Efficacy Throughout Trial, Notwithstanding Period Of Custody? Himachal Pradesh High Court Asks

Case Title: Vikas @Vicky Vs State of Himachal Pradesh.

Citation: 2023 LiveLaw (HP) 33

The Himachal Pradesh High Court has reiterated that the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of Narcotic Drugs and Psychotropic Substances Act in perpetuity.

Justice Vaidya observed that the fetters placed by Section 37 of NDPS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case. It wondered whether the provision of Section 37 of the NDPS Act can be construed to have same efficacy throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial.

Himachal Pradesh High Court Orders State To Refund "Excess Payment" Deducted From Class-III Employee's Retiral Benefits

Case Title: Jawahar Lal (deceased) through LRs v. State of H.P. & Ors.

Citation: 2023 LiveLaw (HP) 34

Observing that recovery of payments made in excess by employers is impermissible in law in certain situations, the Himachal Pradesh High Court granted relief to State Education Department's retired employee whose General Provident Fund (GPF) amount to the extent of Rs. 1.3 lakh was withheld.

In this regard, the bench referred to the Supreme Court's decision in State Of Punjab & Ors vs Rafiq Masih, which provided a few situations where recoveries by employers would be impermissible in law.

Mere Depiction Of Secured Property As Agricultural Land In Revenue Records Won't Exclude It From Purview Of SARFAESI Act: Himachal Pradesh High Court

Case Title: Rakesh Kumar Kashyap Vs State Bank of India

Citation: 2023 LiveLaw (HP) 35

The Himachal Pradesh High Court reiterated that the mere depiction of a secured property as agricultural land in revenue records does not qualify for Section 31(i) of the SARFAESI Act. For the provision to apply, the property must have been genuinely utilized as agricultural land at the time of establishing the security interest, it clarified.

Relying on ITC Limited vs. Blue Coast Hotels Limited and others (2018), the bench explained that since no security interest can be created in respect of agricultural land and yet it was so created, goes to show that the parties did not treat the land as agricultural land and that the debtor offered the land as security on this basis.

FIR Registered After Recovery Made From Public Servant On Spot, No Prior Sanction U/S 17A Prevention Of Corruption Act: HP High Court

Case Title: Abhishek Sharma Vs State of Himachal Pradesh

Citation: 2023 LiveLaw (HP) 36

The Himachal Pradesh High Court has ruled that Section 17A of the Prevention of Corruption Act mandates the need for prior government approval for any inquiry or investigation against a public servant in cases where the alleged offence is related to an official "decision".

FIR registered after on spot recovery following investigation based on a source report of public with general allegations of illegal, improper exercise of powers in violation of prescribed procedure by taking bribes, does not require prior approval under Section 17A, Justice Joytsna Rewal Dua held.

No Wife Can Be Forced To Live In A Matrimonial Home With Husband Keeping Another Lady: Himachal Pradesh High Court

Case Title: Nain Sukh Vs Seema Devi

Citation: 2023 LiveLaw (HP) 37

Dismissing the petition of a husband against his wife alleging cruelty and desertion, the Himachal Pradesh High Court observed no wife can be forced to live in matrimonial home with husband keeping another lady with him.

"...Respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him," a bench comprising Justice Satyen Vaidya observed.

Withdrawing Consent For Divorce U/S 13B Hindu Marriage Act Not Contemptuous: Himachal Pradesh High Court

Case Title: Gurditta Ram Chauhan Vs Mrs Babita.

Citation: 2023 LiveLaw (HP) 38

Dismissing a petition for invoking contempt proceedings against the Respondent-wife for violating terms of settlement with her husband, the Himachal Pradesh High Court ruled that parties have an indefeasible and absolute right to withdraw their consent/petition for divorce by mutual consent under Section 13-B of the Hindu Marriage Act.

Justice Satyen Vaidya, while clarifying that the Respondent's right to withdraw her consent for a mutual divorce is absolute and cannot be disputed, also emphasized that any directive issued by the Court, instructing the parties to adhere to the settlement terms, should not be interpreted as undermining or nullifying this fundamental right.

Maternity Leave Is A Fundamental Human Right; Its Denial Violate Articles 29, 39 Of Constitution : Himachal Pradesh High Court

Case Title: State of HP Vs Sita Devi

Citation: 2023 LiveLaw (HP) 39

The Himachal Pradesh High Court reiterated that every woman, irrespective of her employment status, is entitled to maternity leave.

Maternity leave aims to protect the dignity of motherhood and ensure the well-being of both the woman and her child, a bench of Justices Tarlok Singh Chauhan and Virender Singh remarked.

"The respondent in the instant case was a daily wage woman employee at the time of advance pregnancy could not have been compelled to undertake hard labour, as it would have been detrimental to not only to her health and safety but also to the child health, safety and growth. The maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, clearly the action of the petitioner is violative of Articles 29 and 39D of the Constitution of India."

Himachal Pradesh High Court Distressed Over State Govt Litigating Matter Involving Small Amount Of ₹2,500; Imposes 10K Cost

Case Title: State of Himachal Pradesh Vs Rajinder Fishta.

Citation: 2023 LiveLaw (HP) 40

While ruling in favour of a retired Tehsildar and granting him a regular increment from July 2013 for extended period of service, the Himachal Pradesh High Court criticized the State for engaging in frivolous litigation and emphasized the need for equal treatment of employees.

"We are distressed that in such small value matters also, the State continues to litigate and harass the citizens", Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan observed.

Himachal Pradesh High Court Dismisses Plea Challenging Age Limit For Assistant District Attorney Post

Case Title: Rakesh Kumar Vs State of Himachal Pradesh and others.

Citation: 2023 LiveLaw (HP) 41

The Himachal Pradesh High Court dismissed a set of petitions challenging the age limit for direct recruitment to the posts of Assistant District Attorneys (ADAs) in the state.

“The State Government is within its powers to carve out exceptions for a particular category of post in so far as the prescription of age limit by direct recruitment to such post is concerned. As noticed above, the State Government has already carved exceptions for Himachal Administrative Services, Himachal Police Services and Himachal Judicial Services”, Justices Tarlok Singh Chauhan & Satyen Vaidya observed.

Supplying Copies Of Award Certified By MSME Council To The Parties, Not Fair: Himachal Pradesh High Court

Case Title: M/s Sterkem Pharma Private Limited vs Symbiosis Pharmaceuticals Private Limited and Ors.

Citation: 2023 LiveLaw (HP) 42

The Himachal Pradesh High Court has ruled that it is the bounden duty of the Arbitrator appointed by the Facilitation Council under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act) to issue signed copies of the arbitral award to the parties irrespective of the fact whether the parties have contested the proceedings or were proceeded ex-parte.

The court has deprecated the practice of the Facilitation Council of supplying a copy of the award certified by the Council itself to the concerned parties. The court said that the same is not in consonance with the procedure mandated under Section 31(5) of the Arbitration and Conciliation Act, 1996 (A&C Act) as well as the MSMED Act. It added that the arbitral award is to be made available to the parties by the Arbitrator himself in accordance with the provisions of Section 31(5) of the A&C Act.

[S.6 Hindu Minority & Guardianship Act] Unless Declared Disentitled, Mother Entitled To Minor Children's Custody After Father's Death: HP High Court

Case Title: Lajwanti & others Vs Priti Devi & others

Citation: 2023 LiveLaw (HP) 43

The Himachal Pradesh High Court stated that under the Hindu Minority & Guardianship Act 1956, the mother assumes the role of a natural guardian of minor children upon father's death.

However, the mother's right to custody is not absolute, but contingent upon the welfare of the children and if, during appropriate proceedings, she is found to be unfit or incapable of ensuring the welfare of the children, she may lose the right to maintain custody of them, it clarified.

Himachal Pradesh High Court Upholds NABARD's Guidelines For Selection Of Auditors For Cooperative Banks

Case Title: Yogesh Verma and Others Vs State of Himachal Pradesh and Others

Citation: 2023 LiveLaw (HP) 44

The Himachal Pradesh High Court dismissed a writ petition challenging the guidelines issued by the National Bank for Agriculture and Rural Development (NABARD) regarding the appointment of statutory auditors for Cooperative Banks.

“This Court has neither the expertise to decide whether the conditions mentioned in the guidelines issued by the NABARD are valid or not, nor does it have any ability to compare the nature or responsibility of statutory auditors, who do not have such qualifications, with those who possess the said qualifications. The conditions imposed appear to be reasonably relevant and have a rational nexus with the functions and duties attached to the post of auditors,” Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan Goel observed.

S.19 MSME Act | Court Should Determine Whether Pre-Deposit Amount Is Actually Deposited By Appellant: Himachal Pradesh High Court

Case Title: M/s Pratap Industries Products Vs M/s Hindustan Construction Company Ltd

Citation: 2023 LiveLaw (HP) 45

The Himachal Pradesh High Court on directed the District Court, which stayed the execution of an arbitral award in exercise of its power under Micro, Small and Medium Enterprises Development Act, 2006 (MSME Act), to first determine whether Section 19 of the Act was complied with.

Res Judicata | Section 10 CPC Applies Only In Cases Where Whole Subject Matter In Both Suits Is Identical: Himachal Pradesh High Court

Case Title: Ashok Lal Chopra Vs Mrs. Kiran Kapoor and others

Citation: 2023 LiveLaw (HP) 46

The Himachal Pradesh High Court while highlighting the requirement of an identical subject matter for the application of Section 10 of the Code of Civil Procedure (CPC) emphasized that the words "directly and substantially in issue" should be interpreted in contrast to matters that are merely "incidental or collateral".

Section 145 NI Act Encompasses Court's Power To Summon & Re-Examine Witnesses: Himachal Pradesh High Court

Case Title: Sumitra Devi Vs Kapoor Chand

Citation: 2023 LiveLaw (HP) 47

The Himachal Pradesh High Court ruled that while Section 145(2) of the NI Act does not explicitly mention the re-examination of the complainant or other witnesses, the phrase "summon and examine any person giving evidence in affidavit" also encompasses the court's power to summon and re-examine such witnesses.

Petitions U/S 482 CrPC Not Maintainable For Challenging Proceedings U/S 12 Domestic Violence Act: Himachal Pradesh High Court

Case Title: Sanjeev Kumar & ors Vs Sushma Devi

Citation: 2023 LiveLaw (HP) 48

While reiterating that petitions under Section 482 CrPC are not maintainable for challenging the proceedings under Section 12 of the Domestic Violence Act, the Himachal Pradesh High Court issued directions to the lower courts to ensure their compliance in handling cases related to the Domestic Violence Act.

A bench of Justice Jyotsna Rewal Dua noted that these days diverse recourses are being adopted to challenge the proceedings under the Domestic Violence Act in the form of petitions under Section 482 of the Code or Section 397 read with section 401 of the Code and sometimes under Article 227 of the Constitution.

Himachal Pradesh High Court Directs State To Compensate Nonagenarian Tribal For Land "Illegally" Acquired By Forest Dept

Case Title: Krishan Lal Vs State of H.P

Citation: 2023 LiveLaw (HP) 49

Directing the State to pay market value compensation to a nonagenarian tribal under the Land Acquisition Act 1894, the Himachal Pradesh High Court has said that the State Forest department cannot deprive him of compensation just because he did not keep copies of the complaints he filed in the past against the Forest Department's illegal use of his land.

"The petitioner being an innocent tribal aged 94 years probably did not retain the representations given by him in the past opposing use of this land by the Forest Department, but the Forest Department cannot take advantage of the same particularly when the issue is being agitated, according to the petitioner, from the time such construction was made on his land and when at his instance a demarcation was done on 26.02.2009", a bench of Chief Justice MS Ramachandra Rao and Justice Ajay Mohan Goel observed.

Civil Judge Recruitment: Himachal Pradesh High Court Dismisses Plea Of Candidates Disqualified Over Defective Credential Certificates

Case Title: Manni and another Vs State of Himachal Pradesh &Ors

Citation: 2023 LiveLaw (HP) 50

The Himachal Pradesh High Court dismissed a plea filed by candidates who were disqualified by the Himachal Pradesh Public Service Commission (HPPSC) for their failure to furnish 'Credential Certificates' in prescribed format along with their applications for the post of Civil Judge (Junior Division).

A division bench of Chief Justice M.S. Ramachandra Rao and Justice Ajay Mohan Goel observed,

"Character, good behaviour and antecedents are very important qualifications for persons seeking public employment and in particular for the District Judiciary as Civil Judges (Junior Division)."

[Land Acquisition Act] Serving Notice To 'Interested Persons' Regarding Passing Of Award Mandatory U/S 12(2): Himachal Pradesh High Court

Case Title: Prem Lal Vs State of H.P. & others

Citation: 2023 LiveLaw (HP) 51

Seven years after passing of compensation award for land acquisition in Mangu village near Solang, the Himachal Pradesh High Court ordered that the award be referred to the Statutory authority for determination of the compensation. It observed that Section 12(2) of the Land Acquisition Act 1894, which mandates notice of passing of the award to the interested persons, was not complied with so far as the Petitioner is concerned.