Rajasthan High Court Monthly Digest: May 2022 [Citations: 154 - 179]

Sudarshan Purohit v. The Hon'ble High Court For Judicature Of Rajasthan & Anr. 2022 LiveLaw (Raj) 154

Bharat Sharma v. State Of Rajasthan 2022 LiveLaw (Raj) 155

Prem Chand Deshantri v. Union of India 2022 LiveLaw (Raj) 156

Mahendra Yadav & Anr. v. Bhagwan Devi & Anr. 2022 LiveLaw (Raj) 157

Kumar Indu Bhushan v. Union Of India and Ors. 2022 LiveLaw (Raj) 158

Azaz Khan v. N.I.A. through Special PP and other connected matters 2022 LiveLaw (Raj) 159

Raju Singh v. Twinkle Kanwar 2022 LiveLaw (Raj) 160

Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter 2022 LiveLaw (Raj) 161

State Of Rajasthan & Anr. v. M/s. Godhara Construction Company 2022 LiveLaw (Raj) 162

Mumtaz Mohd. V District Collector Pali and ors 2022 LiveLaw (Raj) 163

State Of Rajasthan, Through P.P v. Komal Lodha 2022 LiveLaw (Raj) 164

Simorna v. State of Rajasthan through PP 2022 LiveLaw (Raj) 165

M/s Vivek Pharmachem (India) Ltd. v. State Of Rajasthan & Anr. 2022 LiveLaw (Raj) 166

Om Prakash Kumawat v. Hero Housing Finance Ltd 2022 LiveLaw (Raj) 167

Asstt. Commercial Taxes Officer Versus M/s. Punusumi India Limited 2022 LiveLaw (Raj) 168

Chandra Bhal Singh v. State Of Raj And Ors and connected matters.2022 LiveLaw (Raj) 169

Pradeep Kumar & Ors. v. State Of Rajasthan & Anr. 2022 LiveLaw (Raj) 170

Hemraj v. State of Rajasthan 2022 LiveLaw (Raj) 171

Mangal Das through LRS v. Amar Singh through LRS 2022 LiveLaw (Raj) 172

Fula @ Fulchand v. State Through PP 2022 LiveLaw (Raj) 173

Neha Mathur & Anr. v. Dr. Arvind Kishore with connected matter 2022 LiveLaw (Raj) 174

Gourav Sharma & Anr. v. Rajasthan Public Service Commission 2022 LiveLaw (Raj) 175

Amit Swami & Ors. v. State of Rajasthan with other connected matters 2022 LiveLaw (Raj) 176

General Manager Rajasthan State Road Transport Corp., Jaipur & Anr. v. Sonu & Anr. with other connected matters 2022 LiveLaw (Raj) 177

Dhanwantri Institute Of Medical Science v. State Of Rajasthan & Ors. 2022 LiveLaw (Raj) 178

Rajendra Kumar Versus The Assistant Commissioner Of Income Tax 2022 LiveLaw (Raj) 179

Judgments/ Orders of the Month

1. Rajasthan Judicial Service: High Court Dismisses Review Petition Challenging Answer Key Of 2021 Preliminary Exam As 'Misconceived'

Case Title: Sudarshan Purohit v. The Hon'ble High Court For Judicature Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 154

The Rajasthan High Court on Thursday dismissed a review petition challenging the answer key of Preliminary Examination for selection to the post of Rajasthan Civil Judge.

The review petition was filed against the order dated 08.04.2022, whereby the division bench had dismissed a batch of writ petitions questioning the correctness and validity of the merit list prepared after Preliminary Examination in the matter .

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, while dismissing the review petition as it being 'misconceived', observed,

"The argument of learned counsel for the review petitioner is utterly misconceived in law. This Court on the factual premise that upon objection received on the correctness of the model answer key of question no.A-66/B-49/C-58/D-39, the expert body had considered objection and it opined that the question was with regard to the date on which the Act was published and therefore with reference to the question, the date of publication was relevant not the date on which it was brought into force and effect in exercise of powers under Section 1(1) of the Act."

2. 'Frivolous': High Court Imposes 25K Cost On PIL Challenging Dr. Anula Morya's Appointment As VC Of Rajasthan Sanskrit University

Case Title: Bharat Sharma v. State Of Rajasthan

Citation: 2022 LiveLaw (Raj) 155

The Rajasthan High Court has dismissed a public interest litigation challenging the appointment of Dr. Anulya Morya as Vice Chancellor of Jagadguru Ramanandacharya Rajasthan Sanskrit University.

The petitioner argued that Dr. Morya does not possess statutorily prescribed experience of teaching the post graduate classes for a period of ten years, and therefore, has illegally usurped the public office of Vice Chancellor.

In this regard, the petitioner placed reliance on UGC regulations called the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010) Regulations 2010 as also the Jagadguru Ramanandacharya Rajasthan Sanskrit University, Jaipur (Amendment Ordinance), Ordinance 2018.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, ruled,

"This petition, if we may say so, not only lacks proper pleadings but also on the face of it is frivolous. Therefore, we are not inclined to issue notice in this petition and dismiss the same with the cost of Rs.25,000/-."

3. Litigant Can't Keep Waiting For Adjudication If Competent Forum Not Functioning: Rajasthan High Court Refuses To Dismiss Writ In Service Matter

Case Title: Prem Chand Deshantri v. Union of India

Citation: 2022 LiveLaw (Raj) 156

"It cannot be assumed that a litigant would keep waiting for the adjudication of his disputes, if the competent Forum or the Authority is not functioning," the Rajasthan High Court observed recently.

The remarks were made by Justice Rekha Borana while hearing an application filed by the Centre seeking dismissal of a petition relating to recruitment in Civil Service, on the ground of alternate remedy. The petition was filed before the High Court due to admitted vacancy in Central Administrative Tribunal at the time.

The Bench, while dismissing the application filed by the respondents, observed,

"Therefore, any litigant cannot be left remediless. It cannot be assumed that a litigant would keep waiting for the adjudication of his disputes, if the competent Forum or the Authority is not functioning. It cannot also be the intention of the legislation to make a litigant suffer because of the inaction or lacuna on the part of the system. The fact of the CAT not functioning at the relevant time being not disputed, the dismissal of the writ petition at this stage i.e. after four years of filing of the same and being entertained by this Court, would not be in the interest of justice now only on the ground of alternative remedy."

4. Bar Expected To Advise Parties Against Pursuing "Lumber Litigation", Save Judicial Time: Rajasthan High Court

Case Title: Mahendra Yadav & Anr. v. Bhagwan Devi & Anr.

Citation: 2022 LiveLaw (Raj) 157

The Rajasthan High Court has observed that if any litigation, with passage of time or due to prolonged life of the litigation has lost its merits, the parties should be advised not to pursue such lumber litigation unwarrantedly on merits, taking immense judicial time of courts for no good results.

Justice Sudesh Bansal, while dismissing the first appeal as it being devoid of merits, observed,

"There is nothing wrong to have a legitimate expectation from the learned Members of the Bar to convince such type of litigants not to pursue the unwarranted litigation before any court of law. If any litigation, with passage of time or due to prolonged life of the litigation have lost its merits, the parties should be advised not to pursue such lumber litigation unwarrantedly on merits, taking immense judicial time of courts for no good results. Prestigious and valuable time of judicial courts should be utilized for deciding bonafide and legitimate disputes instead of deciding superfluous litigation like present one."

5. Order Of Compulsory Retirement Not Punishment, Does Not Require Observation Of Principles Of Natural Justice: Rajasthan High Court

Case Title: Kumar Indu Bhushan v. Union Of India and Ors.

Citation: 2022 LiveLaw (Raj) 158

The Rajasthan High Court recently affirmed the order passed by the Central Administrative Tribunal that upheld compulsory retirement of an IPS officer and observed that compulsory retirement is not a punishment and does not require observation of principles of natural justice.

A division bench of Justice Anoop Kumar Dhand and Justice Pankaj Bhandari observed:

"The order of compulsory retirement is not a punishment nor it attaches any stigma on an employee-petitioner. The subjective decision of the government in public interest arrived at after considering entire service record of the petitioner, where the principles of natural justice, are not required to be observed while passing the order of compulsory retirement because the order of compulsory retirement does not amount to a punishment."

6. Gold Smuggling Can't Be Treated As 'Terrorist Act' Under UAPA: Rajasthan High Court

Case Title: Azaz Khan v. N.I.A. through Special PP and other connected matters

Citations: 2022 LiveLaw (Raj) 159

The Rajasthan High Court observed that Customs Act is not included in Schedule-II of the UA(P)A and thus smuggling of gold and that too of a quantity which is bailable under the Customs Act cannot be treated as Terrorist act.

The court examined the question whether Section 15(1)(a)(iiia) of the UA(P)A, which was inserted in the year 2012, was meant to include the smuggling of gold in the category of 'other material'.

Notably, the single bench of this court in Mohammad Aslam v. Union of India & Ors had held that gold is a vulnerable material, smuggling of which can be done with intent to threaten or likely to threaten the economic security of the country and thus considered to be a 'terrorist act'.

A division bench of Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while allowing the appeals and releasing the accused-appellant on bail, observed,

"Customs Act is not included in Schedule-II of the UA(P)A, thus smuggling of gold and that too of a quantity, which is bailable under the Customs Act cannot be treated as a Terrorist Act."

7. Divorce| Rajasthan HC Sets Aside Family Court's Order Refusing To Waive 6 Months Cooling-Off Period In Absence Of Documentary Evidence

Case Title: Raju Singh v. Twinkle Kanwar

Citation: 2022 LiveLaw (Raj) 160

The Rajasthan High Court observed that a family court had committed illegality in rejecting the divorce application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence, especially when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018.

Notably, a joint application was filed by the parties before the Family court for waving six months' cooling-off period as provided under Section 13-B of the Hindu Marriage Act of 1955 on 26.04.2022, however, the Family court rejected the same while observing that the parties have failed to produce documents to prove the fact that both of them are living separately since July, 2018.

Justice Vijay Bishnoi, while allowing the writ petition and setting aside the order passed by the Family Court, observed,

"In the present case, when the parties have already stated on oath through affidavit that both of them are living separately since July, 2018, the court below has committed illegality in rejecting the application of the parties for waiving cooling-off six months' period in the absence of any documentary evidence."

8. Prior Approval Of Education Director Not Necessary For Disciplinary Action Against Employee Of Unaided Recognized Educational Institution: Rajasthan HC

Case Title: Adarsh Shiksha Parishad Samiti & Anr v. Gajanand Sharma & Ors. with other connected matter

Citation: 2022 LiveLaw (Raj) 161

The Rajasthan High Court has reiterated that prior approval of the Director of Education is not necessary before taking disciplinary action against an employee of Unaided Recognized Educational Institutions.

In this regard, reliance was placed on the High Court's judgment in Central Academy Society Vs. Rajasthan Non-Govt. Educational Institutional Tribunal [2010(3) WLC 21] as well as the decision of Apex Court in T.M.A. Pai Foundation Vs. State of Karnataka [2002 (8) SCC 481].

A division bench of Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while allowing the appeal, observed,

"Hence, in view of the judgment of the Hon'ble Apex Court, we see no reason to take a different view as the controversy involved in this appeal has already been put to rest by the Constitutional Bench of 11 Judges of the Hon'ble Court in the case of T.M.A. Pai Foundation (supra) and the three Judges Larger Bench of this Court in the case of Central Academy Society (supra), that prior approval of the Director of Education is not necessary before taking disciplinary action against the employee of the Unaided Recognized Educational Institution."

9. Condonation Of Delay | S.5 Limitation Act Not Applicable To Proceedings U/S 34 Arbitration & Conciliation Act: Rajasthan High Court

Case Title: State Of Rajasthan & Anr. v. M/s. Godhara Construction Company

Citation: 2022 LiveLaw (Raj) 162

The Rajasthan High Court has observed that the provision of Section 5 of the Indian Limitation Act does not apply to the proceedings contained under Section 34 of the Arbitration and Conciliation Act, 1996.

Justice Anoop Kumar Dhand, while dismissing an appeal preferred by the State government observed,

"In view of the discussions made above, this Court of the opinion that the application under Section 34(3) of the Act of 1996 filed by the appellant for setting aside the arbitral award dated 29.07.2000 was beyond the mandatory period of limitation permitted under the Act of 1996. Hence, the same could not have been entertained by taking the recourse of the provisions of the Limitation Act."

The court observed that the proviso to Section 34(3) of the Act of 1996 empowers the court if it is satisfied that the applicant was prevented by sufficient cause from making application within the said period of three months to further extend the period and filing of the application for setting aside the arbitral award by 30 days but not thereafter.

10. Opportunity Of Being Heard Necessary: Rajasthan HC Asks Tehsildar To Hear The Poultry Farmer Before Ordering Him To Shift His Farm

Case Title : Mumtaz Mohd. V District Collector Pali and ors

Citation: 2022 LiveLaw (Raj) 163

The Rajasthan High Court recently asked the Tahsildar to hear the poultry farmer before he decides to ask him to shift his farm elsewhere.

The observation came from Justice Vinit Kumar Mathur:

"A bare perusal of the Annex. 5 dated 09.09.2016 shows that the petitioner has not been extended any opportunity of hearing before passing the notice impugned. This Court feels that since the notice impugned 09.09.2016 having evil consequences, an opportunity of hearing is required to be given to the petitioner."

In the present matter, the petitioner was an owner of a poultry farm who moved the court challenging the notice issued by Tehsildar for shifting of the poultry farm without extending a reasonable opportunity of hearing to the petitioner.

Petitioner argued that he has complied with all the eligibility and requisite qualifications and a 'No objection certificate' for running the poultry farm.

11. Rajasthan High Court Finds Man On Death Row Wrongly Convicted For Rape & Murder Of 7-Yr Old, Modifies Sentence To Life Citing Conviction By SC

Case Title: State Of Rajasthan, Through P.P v. Komal Lodha

Citation: 2022 LiveLaw (Raj) 164

The Rajasthan High Court recently commuted death sentence awarded to a man convicted for the offence of sodomy, rape and murder of a 7-year old girl child, while observing that it appeared to be a case of wrong conviction whereby the actual offenders had, with the help of the Police, shifted the crime on the present convict.

The case had travelled up to the Supreme Court which did not upset the conviction and had remitted the matter back to the High Court only to decide the question of sentence upon consideration of aggravating and mitigating circumstances.

While dealing with this criminal death reference, a division bench of Justices Pankaj Bhandari and Anoop Kumar Dhand observed,

" It appears that two persons committed the horrendous act of rape and sodomy with a seven ones year old girl and murdered the girl and thereafter, with the help of the police shifted the crime to the present appellant...We are alive of the fact that the conviction of the accused has been upheld by the Apex Court...Since we have been directed to confine our judgment only on the question of sentence for offence under Section 302 IPC, we with heavy heart and with hope that justice would be done to the accused, who has been sentenced to imprisonment till death for crime committed by two other persons, commute sentence from death penalty to life imprisonment."

12. Rajasthan High Court Grants Bail To Murder Accused In Custody Since 2015 Along With Her Minor Daughter

Case Title: Simorna v. State of Rajasthan through PP

Citation: 2022 LiveLaw (Raj) 165

The Rajasthan High Court has granted bail to a woman, accused in a murder case, who has been incarcerated since June 2015, along with her minor daughter.

While observing that the trial is still pending and on being informed that the same is held up on account of delay caused by witnesses, Justice Manoj Kumar Garg allowed her second bail application.

Essentially, the lady has been in judicial custody since June 2, 2015 in connection with an FIR registered at Police Station Kuri Bhagtasni, Jodhpur for the offences punishable under Sections 302 (Murder), 120-B (Criminal conspiracy) and 201 (Causing disappearance of evidence of offence) of the IPC and Section 4/25 of the Arms Act.

Notably, her first bail application was dismissed on 15.12.2016 by the court.

"Having regard to the totality of the facts and circumstances of the case and considering the facts that the accused-petitioner is a lady and she is inside jail since 02.06.2015 along with her minor daughter aged about three years and the trial of the case is yet pending, therefore, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C," the Court said.

13. Manufacturer Entitled To Receive One Sample Of Seized Goods U/S 23(4) Of Drugs & Cosmetics Act: Rajasthan High Court

Case Title: M/s Vivek Pharmachem (India) Ltd. v. State Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 166

The Rajasthan High Court has observed that Section 18A of Drugs and Cosmetics Act, 1940 requires disclosure of name of manufacturer also and not only of the stockists and thus, he is entitled to receive one portion sample of seized drugs in terms of Section 23(4) of the Act.

Section 18A of the Act deals with the disclosure of the name of the manufacturer, etc. It states, "Every person, not being the manufacturer of a drug or cosmetic or his agent for the distribution thereof, shall, if so required, disclose to the Inspector the name, address and other particulars of the person from whom he acquired the drug or cosmetic.".

Section 23(4) r/e 23(3) provides that where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall divide the sample into four portions and restore one portion of it to the person from whom he takes it, and shall retain the remainder.

14. Proceedings Under The A&C Act And SARFAESI Act Can Be Resorted To Simultaneously: Rajasthan High Court Reiterates The Legal Position

Case Title: Om Prakash Kumawat v. Hero Housing Finance Ltd

Citation: 2022 LiveLaw (Raj) 167

The High Court of Rajasthan has held that proceedings under the A&C Act and SARFAESI Act can be resorted to simultaneously.

The Single Bench of Justice Mahendra Kumar Goyal has held that the existence of an arbitration clause and filing of an application under Section 9 of the A&C Act is not a bar to the institution of proceedings under the SARFAESI Act.

The writ petitioner challenged that order of the Chief Metropolitan Magistrate, Jaipur passed under Section 14 of the SARFAESI Act on the ground that the loan agreement between the parties contains an arbitration clause and the respondent having filed an application under Section 9 of the A&C Act, therefore, the remedy under SARFAESI Act cannot be resorted to and the CMM erred in entertaining the application.

15. Rajasthan High Court Refuses To Grant Priority of Government Dues Over Debts Due To Secured Creditors

Case Title: Asstt. Commercial Taxes Officer Versus M/s. Punusumi India Limited

Citation: 2022 LiveLaw (Raj) 168

The Rajasthan High Court bench of Justice Ashok Kumar Gaur has refused to grant the priority of the government dues over the debts due to secured creditors.

The petitioner/department has pleaded that the company M/s. Punsumi India Ltd. is under liquidation and the Officer Liquidator (OL) had invited claims with regard to outstanding dues against the company. The department had sent its claim via communication and the OL communicated that the claim was not in the prescribed format and the same was time barred and delay was to be condoned by the High Court.

The department submitted its claim before the OL with the documentary evidence and affidavit, and the OL called for certain information from the department, which was responded to by them.

16. State Is Trustee Of All Natural Resources, Must Be Conscious To Maintain It: Rajasthan HC On Illegal Mining, Encroachment In Forests; Appoints Amicus

Case Title: Chandra Bhal Singh v. State Of Raj And Ors and connected matters.

Citation: 2022 LiveLaw (Raj) 169

The Rajasthan High Court, Jaipur has recently directed the State to ensure compliance of law and prevent illegal mining, encroachments etc. in the Forests, Wild Life Sanctuaries, Forest Reserves, Tiger Reserves, etc. situated at Ranthambore, Sariska, Nahargarh, Jhalana and other forest reserves.

In a batch of writ petitions concerning the issue, the court noted that it is a very sorry state of affairs that the concerned authorities have not carried out their duties for the reasons best known to them, in spite of notification issued under the Indian Forest Act, 1927, Wild Life Protection Act, 1972 and other relevant Legislations.

17. Attempt To Get Civil Dispute Resolved By Invoking Criminal Court's Jurisdiction Amounts To Abuse of Process of Court: Rajasthan High Court

Case Title: Pradeep Kumar & Ors. v. State Of Rajasthan & Anr.

Citation: 2022 LiveLaw (Raj) 170

The Rajasthan High Court has observed that the attempt of a complainant to get the civil dispute resolved by resorting to invoking jurisdiction of a criminal court amounts to abuse of the process of the court. In the present case, the court noted that the real dispute between the parties is prima facie of civil nature which cannot be adjudicated by a criminal court.

Justice Birendra Kumar, while allowing the petition filed by the accused and quashing the FIR and subsequent proceedings arising-therein, observed, "After hearing the learned counsel for the parties and considering the material on record, this Court is of the prima facie view that real dispute between the parties is of civil nature which cannot be adjudicated by a criminal court, hence the attempt of the complainant to get the civil dispute resolved by resorting to invoking jurisdiction of a criminal court amounts to abuse of the process of the Court."

18. "No One Can Be Arrested Simply On Basis Of Assumption & Perception": Murder Accused Argues In Rajasthan High Court, Secures Bail

Case Title: Hemraj v. State of Rajasthan

Citation: 2022 LiveLaw (Raj) 171

The Rajasthan High Court has granted bail to a murder accused after hearing his counsel's arguments contending that no one can be arrested simply on the basis of assumption, presumption and perception.

The appellant's counsel submitted that there is no eye-witness of the incident and the case of the prosecution is based on circumstantial evidence, however no circumstances are available except hearsay evidence. Placing reliance on Section 60 of the Indian Evidence Act, the appellant's counsel submitted that oral evidence of any incident must be direct in nature. She added that if it relates to a fact which could be seen, then it must be the evidence of that person who says that he saw the incident.

19. Object Of Rent Control Act Is Not To Deprive Landlords Of Their Bona Fide Properties: Rajasthan High Court

Case Title: Mangal Das through LRS v. Amar Singh through LRS

Citation: 2022 LiveLaw (Raj) 172

The Rajasthan High Court has observed that the basic object of the Rajasthan Rent Control Act, 1950 is to save the harassment of tenants from unscrupulous landlords. The court added that the said object may not be misconstrued to deprive the landlords of their bona fide properties for all times to come.

Justice Sudesh Bansal observed, "It may be noticed that the rent control legislation was entitled to strike a reasonable balance between the landlord and tenant. At one hand where the tenant requires adequate protection against his eviction at the hands of aggressive designed greedy landlord, at the same time rights of landlord also require protection to increase the rent reasonably and to evict tenant on the grounds permissible in law. The basic object of the Rent Control Act, 1950 is to save the harassment of tenant from unscrupulous landlords. The object of the Rent Control Act, 1950 may not be misconstrued to deprive the landlords of their bona fide properties for all times to come."

20. Rajasthan High Courts Sets Aside Murder Conviction On Finding Inconsistency Between Ocular & Medical Evidence

Case Title: Fula @ Fulchand v. State Through PP

Citation: 2022 LiveLaw (Raj) 173

On finding a contradiction between the eye-witness testimony and the medical evidence, the Jodhpur Bench of the Rajasthan High Court set aside the conviction under Section 302 IPC (Murder). Instead, it convicted the accused in Section 323 IPC (Voluntarily causing hurt).

A Division Bench of Justices Sandeep Mehta and Vinod Kumar Bharwani relied on Dunga Ram v. the State of Rajasthan and Jugut Ram v. the State of Chhattisgarh, in which the facts were similar, and the offence of murder was altered to one of voluntarily causing hurt.

Under Section 374(2) of the Criminal Procedure Code, the appellants preferred an instant appeal challenging a judgment convicting the accused for offence under Section 302 of the Indian Penal Code. The accused-appellant was sentenced to life imprisonment with a fine of Rs. 10,000/-.

21. Mere Fact That Wife Is Earning Would Not Dis-Entitle Her From Claiming Maintenance: Rajasthan High Court

Case Title: Neha Mathur & Anr. v. Dr. Arvind Kishore with connected matter

Citation: 2022 LiveLaw (Raj) 174

The Rajasthan High Court on Thursday observed that merely the fact that the wife is earning would not dis-entitle her from claiming maintenance from her husband. The Court opined that the charge of desertion cannot become a ground so as to enable the husband to disqualify the wife from claiming the amount of monthly maintenance, in any manner whatsoever.

Essentially, the marriage of the parties was solemnized on 27.05.2010 at Bikaner; thereafter, the couple went to reside in the USA. Out of the said wedlock, Master Anay (son) was born on 21.05.2011. On account of the alleged disharmony in their matrimonial relationship, the wife left her matrimonial home at USA on 13.11.2013 and came back to India alongwith the son. Later, the wife filed an application against the husband under Section 125 Cr.P.C. which was allowed by the trial court on 30.08.2018, while awarding a monthly maintenance to the wife and son, to the tune of Rs.50,000/- and Rs.20,000/- (totalling Rs.70,000/-).

22. Rajasthan HC Dismisses Petitions Challenging Scaling Formula of Results of Assistant Conservator of Forest and Forest Range Officer Grade-I Recruitment Exam

Case Title: Gourav Sharma & Anr. v. Rajasthan Public Service Commission

Citation: 2022 LiveLaw (Raj) 175

The Rajasthan High Court has dismissed a batch of writ petitions alleging that the scaling formula for the recruitment exam for the post of Assistant Conservator of Forest and Forest Range Officer Grade-I as has been applied by the respondents-Rajasthan Public Service Commission, is improper and thereby results in huge and undue variation in the marks awarded in different subjects

The petitioners also alleged that the same adversely affected the final merit to be drawn on the basis of marks scaled. Moreover, the petitioner sought directions to the respondents to declare the result on the basis of raw marks.

23. Patwari Recruitment: Rajasthan High Court Orders Reconsideration Of Answers To Two Questions, Consequential Changes In Final Answer Key & Result

Case Title: Amit Swami & Ors. v. State of Rajasthan with other connected matters

Citation: 2022 LiveLaw (Raj) 176

The Rajasthan High Court has recently directed the Rajasthan Subordinate and Ministerial Service Selection Board to re-examine certain disputed questions pertaining to recruitment exam for the post of Patwari, from different experts.

The Court ordered that based on the conclusion of such experts, the Board shall amend the final answer key and give effect to the marks obtained by the candidates and other consequential changes in the result.

The competitive written examination was held in four shifts and the final answer key was issued by the Board on 25.01.2022 on the basis of the decision taken by the Expert Committee on the objections raised by the candidates. Additionally, a list of provisionally selected candidates was issued for the purpose of verification of documents and credentials of the candidates.

24. Rajasthan High Court Directs State To Affix Reflectors On All Animal Carts, Deal Strictly With Persons Riding Sans Proper Safety Measures

Case Title: General Manager Rajasthan State Road Transport Corp., Jaipur & Anr. v. Sonu & Anr. with other connected matters

Citations: 2022 LiveLaw (Raj) 177

The Rajasthan High Court has directed the State government to evolve a mechanism to ensure affixing of reflectors on all types of Animal Carts, Tractor Trolleys and similar types of rides on road. The Court also directed to ensure that the persons, who ride on roads without adopting proper safety measures, so as to endanger the life and safety of other persons, be dealt strictly under the provisions of relevant penal laws.

Justice Rameshwar Vyas observed,

"Before parting with the judgment with the intent to save several human lives from road accidents this Court deems it fit to direct the State Government to evolve mechanism so as to ensure affixing of reflectors on all types of Animal Carts, Tractor Trolleys and similar types of rides on road."

25. "Bench Hunting": Rajasthan High Court Imposes 10 Lakh Cost On Medical Institute For Filing Petition By Concealing About Its Dismissal By Jaipur Bench

Case Title: Dhanwantri Institute Of Medical Science v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 178

The Principal bench of Rajasthan High Court at Jodhpur has recently imposed a cost of Rs. 10 lakh on a medical institution for filing a writ petition, which came to be dismissed as withdrawn at Jaipur Bench on 26.04.2022. The present petition at the Principal Seat was filed on the very next day i.e. on 27.04.2022, without disclosing the facts of the former petition.

Justice Vijay Bishnoi, while dismissing the petition, observed,

"Now-a-days, the practice of bench hunting is often noticed, however, it is least expected from the institute providing education for the higher courses to the students to involve in such practice. It is a very sorry state of affairs and the conduct of the petitioner– institution is highly condemnable and contemptuous too. It is not expected from any person approaching the Court to conceal the relevant facts and to make an attempt of mislead the Court."

26. Action Of Recovery By Income Tax Dept. Was Without Jurisdiction: Rajasthan High Court Imposes Cost Of Rs. 50,000 On The Dept.

Case Title: Rajendra Kumar Versus The Assistant Commissioner Of Income Tax

Citation: 2022 LiveLaw (Raj) 179

The Rajasthan High Court has imposed a cost of Rs.50,000 on the Income Tax department as the action of recovery was without jurisdiction.

The division bench of Justice Prakash Gupta and Justice Sameer Jain has directed the Assessing Officer to issue a refund to the assessee along with interest as specified in law. The department was directed to adjust an excess of 20% of the disputed demand for Assessment Year 2017-18 within a period of thirty days.

The petitioner/assessee contended that in terms of the order under Section 245 of the Income Tax Act, the appeal was preferred by him immediately and as per the provisions of Section 220(6) of the Income Tax Act. The assessee cannot be termed as an assessee in default.

The petitioner contended that the recovery can only be initiated as per the statutory mechanism and that too by a Tax Recovery Officer as mandatory under Section 223 of the Income Tax Act. The refund was established on its own, disregarding departmental circulars, settled legal positions, natural justice principles, statutory mandates, and the provisions of Section 245 of the Income Tax Act.The department's act was arrogant and autocratic, lacking legal authority.

Other Important Updates

1. Rajasthan HC Grants Interim Protection From Arrest To News 18 Journalist Aman Chopra Over His Tweets Which Allegedly 'Resulted In Communal Riots In Alwar'

Case Title: Aman Chopra v. State Of Rajasthan, Through P.p.

The Rajasthan High Court has granted interim protection from arrest in two out of the three FIRs registered against News 18 Journalist Aman Chopra for allegedly airing a discussion show named as "Desh Jhukne Nahi Denge" and subsequently posting it on his Twitter account, which allegedly resulted in communal disharmony and communal riots on 22.04.2022 at Alwar.

Justice Birendra Kumar, observed,

"Since the subsequent FIRs for same cause of action and their investigation are itself not sustainable/permissible, in view of the judgments of the Supreme Court (supra), there is no question that petitioner need not get protection from being arrested in these cases.

As such, the petitioner shall not be arrested in FIR No. 372/2022, registered with Police Station Kotwali, Alwar and FIR No. 200/2022 registered with Police Station Sadar, Bundi, till further order."

2. Rajasthan High Court Bar Association, Jaipur Cancels Membership Of 2 Advocates

The High Court Bar Association of Rajasthan, Jaipur has cancelled the membership of Adv. Goverdhan Singh and Adv. Prameshwar Lal Pilania with immediate effect. The Bar Association has separately made a request to the Bar Council of Rajasthan to conduct an inquiry against the aforesaid two advocates within a period of two months and cancel the registration of the two advocates.

Notably, Adv. Govershan Singh had posted a video on social media alleging the involvement of Justice Narendra Singh Dhaddha's Usher in taking bribe from an Advocate.

The aforesaid decision was taken on the grounds of tarnishing the image of the court, contempt of court, for getting registered by concealing the facts of pending criminal cases, publishing alleged fake video and viral messages to gain cheap publicity and in order to fulfil their sick selfishness as well as to gain political benefit under the garb of the noble profession of advocacy.

3. Rajasthan High Court Issues Notice On Plea Challenging Mandatory Publication Of "Notice Of Intended Marriage" Under Special Marriage Act

Case Title: Lunavath Veeranna & Anr. v. Union of India & Ors.

The Rajasthan High Court has issued notice on a plea filed by an inter-faith couple, seeking to declare Sections 6(2) and 6(3) of the Special Marriage Act, 1954 as directory in nature, so far as the same provide for publication of written notice of intended marriage, submitted under Section 5 of the Special Marriage Act, 1954.

The plea also sought to declare Sections 7 & 8 of the Special Marriage Act, 1954 as directory in nature, so far as the same provide for invitation of objections upon notices published under Sections 6(2) and 6(3) of the Special Marriage Act, 1954 & adjudication of the same by the District Marriage Officer.

It further sought consequent declarations under Section 16 of the Act and under Rules 8, 10 & 12 of the Rajasthan Special Marriage Rules, 1955.

Essentially, the grievance of the petitioners is to the effect that they gave a notice of intended marriage under Section 5 of the Special Marriage Act to the respondent No.3 – District Collector, Jodhpur, however, the said authority is insisting them for publication of notice under Section 6 of the Act of 1954.

Justice Vijay Bishnoi, observed,

"Issue notice. Issue notice of stay petition as well, returnable on 12.05.2022. Learned counsel for the petitioners is free to supply the copy of the writ petition to the learned counsel usually appearing for the respondents in the matter."

4. Disqualification Notices By Speaker | Rajasthan High Courts Issues Notice To Sachin Pilot Camp

Case Title: Prithviraj Meena & Ors. v. The Honble Speaker & Ors.

The Rajasthan High Court has recently issued notices to Sachin Pilot and other 18 Members of Legislative Assembly (MLAs) in the 2020 matter whereby disqualification notices were issued by the Speaker to the aforesaid persons.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain, observed,

"As no instructions have been pleaded on behalf of the petitioners No.2 to 19, issue notice to the petitioners No.2 to 19 for fixed date of hearing on 25.05.2022."

Essentially, it was on July 14 that the Speaker, Dr C P Joshi, served the notices on the 19 dissident MLAs, including Pilot, amid their rebellion against Chief Minister, Ashok Gehlot. They were initially given time till 1 PM, July 17 to submit the replies.

The basis of the notices was the complaint filed by Mahesh Joshi, the Congress Party Whip, who alleged that rebel MLAs had attracted disqualification under Tenth Schedule of the Constitution with their anti-party statements and refusal to attend the party meetings on July 13 and 14, defying the whip's directives.

5. After SC Order Freezing Sedition Law, News18 Journalist Aman Chopra Gets Relief From Rajasthan High Court In 124A IPC Case

Case title: Aman Chopra v. State Of Rajasthan and another

The Rajasthan High Court (Jodhpur Bench) has directed the state police to not investigate allegations leveled against News 18 Journalist Aman Chopra of committing offence punishable under Section 124-A of the Indian Penal Code (sedition)

This relief for Chopra has come in an FIR registered against him for airing a discussion show named as "Desh Jhukne Nahi Denge" and subsequently posting it on his Twitter account, which allegedly resulted in communal disharmony and communal riots on 22.04.2022 at Alwar.

Importantly, the Bench of Justice Dinesh Mehta has issued this direction in the light of order of the Supreme Court wherein 152-year-old sedition law [under Section 124A of the Indian Penal Code] has been kept in abeyance till the Union Government reconsiders the provision.

6. Rajasthan HC Issues Notice In Plea Challenging Vires of Age Restriction of 50 Years Under Tribunals Reforms Act, 2021 For Appointment of Chairperson(s)/ Member(s)

Case Title: Rekha Madnani v. Union of India

Case No.: CMS/ 6974/ 2022

The Rajasthan High Court has issued notice in a plea challenging vires of age restriction of 50 years prescribed by proviso to Section 3 (1) of Tribunals Reforms Act, 2021 for appointment of Chairperson(s) or Member(s) of the Tribunals.

The plea has been filed by one Jaipur based advocate Rekha Madnani, who claims to have put in more than 20 years of professional practice and is thus alleged to have qualified to be appointed as Judicial 26 Member in Railway Claim Tribunal.

According to proviso to Section 3(1) of Tribunal Reforms Act, 2021, eligibility qua age has to be seen on the date of appointment. The plea states that vacancy circular issued by Respondent No.2 did not indicate any cut-off date on which age of candidate is to be seen, which only meant age of incumbent has to be seen on the date of appointment and not at any time prior to it.

7. Supreme Court Collegium Recommends Elevation Of Justice S. S. Shinde As Rajasthan High Court's Chief Justice

The Supreme Court Collegium has recommended the name of Justice S. S. Shinde as the new Chief Justice of the Rajasthan High Court. Presently, Justice Shinde is serving as a Judge of the Bombay High Court.

Pursuant to the retirement of Justice Akil Kureshi as the Chief Justice of the Rajasthan High Court, Justice Manindra Mohan Shrivastava had taken over as the Acting Chief Justice of the High Court.

Justice Shinde was born on 02nd August 1960. He completed LL.B. Course from Marathwada University (now Dr. Babasaheb Ambedkar Marathwada University) at Aurangabad.

He obtained LL.M Degrees from Pune University, and from Warwick University, United Kingdom. He enrolled on 9th April 1987 as an Advocate on the Roll of the Bar Council of Maharashtra & Goa, and started practice as an advocate in the High Court of Bombay, Bench at Aurangabad in November 1989.

8. [Jodhpur Violence] Rajasthan High Court Grants Interim Protection From Arrests To 3 Accused Persons

Case Title: Hitesh Vyas & Ors. .v. State Of Rajasthan & Anr.

The Rajasthan High Court has granted interim protection from arrest to three accused persons, namely Hitesh Vyas, Arvind and Khimanshu Gehlot in the recent incident of Jodhpur Violence that took place on 02.05.2022 at Jalori Gate Chouraha, Jodhpur.

The court has directed the Investigation Officer to remain present with case diary and CCTV Footage of the incident (if any) on the next date of hearing.

Justice Dinesh Mehta, observed,

"Having regard to the facts and circumstances of the case, the Investigating Officer is directed to remain present with case diary and CCTV Footage of the incident (if any) on 23.05.2022. The matter shall be taken up at 11.00 a.m. on 23.05.2022. Till then, the petitioners shall not be arrested in connection with FIR No.127/2022, P.S. Sardarpura, Jodhpur.

9. Internet Suspended For 506 Hrs Through 26 Shutdown Orders In Udaipur: PIL In Rajasthan High Court, Notice Issued

Case Title: Udaipur Chamber of Commerce and Industry & Anr. v. State of Rajasthan

The Rajasthan High Court has issued notice on a public interest litigation challenging the validity of frequent "Internet Shutdown" orders being passed by the Divisional Commissioner of the area.

It is alleged that since the Supreme Court's orders in Anuradha Bhasin v. Union of India, which held that internet shutdowns should be resorted to only in exceptional circumstances, at least 26 shutdown orders restricting internet access for around 506 hours in the Udaipur Division have been issued.

A division bench comprising Acting Chief Justice Manindra Mohan Shrivastava and Justice Madan Gopal Vyas has issued notices in the matter.

The public interest litigation has been filed by Udaipur Chamber of Commerce and Industry as well as Hotel Association, Udaipur. It seeks a direction to the State to immediately publish all orders suspending internet services on its official websites as well as Twitter Handle i.e. @RajGovOfficial.

10. Rajgarh Temple Demolition | "Urgent & Immediate Interrogation Not Required", Rajasthan HC Grants Interim Relief To Arnab Goswami On Pawan Khera's Complaint

Case Title: Arnab Goswami v. State of Rajasthan

Case No.: CRLMP / 3015 / 2022

The Rajasthan High Court has granted interim relief from arrest to news anchor Arnab Goswami in an FIR registered against him based on the complaint by Congress Spokesperson Pawan Khera taking objections regarding broadcast of certain news on Republic Bharat regarding alleged temple demolition in Rajgarh.

Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act. The FIR was registered pursuant to the news reporting conducted by Republic Bharat with regards to demolition of temple at Rajasthan. In this regard, Arnab Goswami has moved to the High Court seeking quashing of the aforesaid FIR.

The matter was mentioned before the bench today by Sr. Adv. Mahesh Jethmalani. Consequently, Justice Dinesh Mehta, observed,

"Having regard to the facts and circumstances of the case and considering that the omnibus allegations levelled in the FIR relate to an attempt to de-establish the State Government, this Court is of the view that the immediate and urgent interrogation of the petitioner is not required, particularly when neither details of programme nor any specific incident have been indicated in the written information."

11. 'Bhanwari Devi Repeat': Rajasthan High Court Grants Protection To Woman Who Accused State Minister's Son Of Rape, Murder Threat

The Rajasthan High Court has recently directed the State to ensure protection to a woman who accused Rajasthan PHED Minister Mahesh Joshi's son Rohit Joshi of rape.

Reportedly, as per the FIR, the woman said, "When I called him, he said he is the son of a Minister and nobody can harass him...He brags about his money and power and at the end says that people won't even know where I have disappeared to. The Bhanwari Devi case will be repeated"

The court has issued notice to respondents and has sought their response within two weeks.

Justice Birendra Kumar, observed, "Let the respondents file reply to the petition within two weeks. In the meanwhile, as an interim measure, respondents shall ensure protection of life and liberty of the petitioner."

12. Rajgarh Temple Demolition: Rajasthan High Court Extends Interim Protection For Arnab Goswami, Seeks State's Response Within 4 Weeks

Case Title: Arnab Goswami v. State Of Rajasthan

The Rajasthan High Court has extended the interim protection from arrest granted to news anchor Arnab Goswami in an FIR registered against him regarding broadcast of certain news on Republic Bharat regarding alleged temple demolition in Rajgarh.

The court granted four weeks time to the Public Prosecutor to file a reply.

Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act. The FIR was registered pursuant to the news reporting conducted by Republic Bharat with regards to demolition of temple at Rajasthan. The FIR was based on the complaint filed by Congress Spokesperson Pawan Khera. In this regard, Arnab Goswami has moved to the High Court seeking quashing of the aforesaid FIR.

13. Asaram Bapu Case: Rajasthan High Court Grants 'Last Opportunity' To Prosecution To Respond To Third Application For Suspension Of Sentence

Case Title: Asharam @ Ashumal v. State Of Rajasthan

The Rajasthan High Court has granted last opportunity to the Public Prosecutor to file reply in Self-styled godman & Life convict Asaram Bapu's third application for suspension of sentence in minor rape case, to pursue medical treatment.

Justice Sandeep Mehta and Justice Vineet Kumar Mathur, observed, "Learned Public Prosecutor has not filed reply. Last opportunity is granted to him for doing the needful."

14. Constitutionality Of First Proviso To Section 148 Of Income Tax Act, Rajasthan High Court Issues Notice To Govt.

Case Title: Maya Rathi v. ITO

Case No.: D.B. Civil Writ Petition No. 7495/2022

The Rajasthan High Court bench headed by Acting Chief Justice Manindra Mohan Shrivastava and Justice Sameer Jain has issued the notice to the government on a plea challenging the validity of the first proviso to section 148 of the Income Tax Act by granting arbitrary powers to the AO.

The petitioner/assessee has filed this Writ Petition under Article 226 of the Constitution of India challenging the notice issued under clause (b) of Section 148A of the Income Tax Act, 1961.

Firstly, on the grounds that, without conducting preliminary enquiry, which is a pre-requisite for the application under Section 148A of the Income Tax Act, 1961.

Secondly, the reply of the petitioner has not been considered by the Assessing Officer in respect of the issuance of notice under Section 148.

Lastly, the provisio to Section 148 of the Act of 1961 was challenged because it has diluted the standard of test required on behalf of the Assessing Officer before issuing a notice under Section 148 of the Act of 1961. Section 148 vests the Assessing Officer with arbitrary powers to open assessments.

15. On Centre's Plea, Rajasthan High Court Stays CAT's Order Granting Notional Annual Grade Increment To Central Govt Employees

Case Title: Union Of India v. Manohar Lal

The Rajasthan High Court, Jaipur has stayed Central Administrative Tribunal (CAT), Jaipur's order which disposed of the Original Application of the Central government employees-respondents/ applicants and directed the petitioners-Union of India to grant one annual grade increment payable on 1st July to all applicants

Notably, the Union stated that the respondents/ applicants completing 6 months and above in the revised pay structure as on 1st July will be eligible to be granted the increment. It was added that since the respondents/applicants had retired from service on 30th June, they were not in service as on 1st July of their respective years.

Justice Pankaj Bhandari and Justice Anoop Kumar Dhand, while admitting the petition, observed,

"The dispute pertains to grant of annual grade increment. As per the Division Bench Judgment of this Court in the case of Safi Mohd. & Ors. Vs. State of Rajasthan in D.B Civil Writ Petition No.6024/2021 decided on 01.12.2021, the increment is not payable, however, counsel for the respondent contends that the matter is pending for adjudication before the Hon'ble Apex Court.

In view of the contentions raised, we deem it appropriate to stay the impugned order till the disposal of the writ petitions."