Allahabad High Court Weekly Round-Up: August 21 to August 27, 2023
Sparsh Upadhyay
28 Aug 2023 4:21 AM GMT
NOMINAL INDEX Sunita Sharma and Another vs. State of U.P. and 3 Others 2023 LiveLaw (AB) 271 Paltoo Ram Yadav vs. State Of U.P. And 6 Others 2023 LiveLaw (AB) 272 M. Devaraj vs. Rakesh Kumar Sharma And 5 Others 2023 LiveLaw (AB) 273 Vishwajeet vs. State Of U.P. Thru. Secy. Deptt. Of Home Lko 2023 LiveLaw (AB) 274 Krishna Kumar vs. State Of U.P.Thru Prin. Secy.Home...
NOMINAL INDEX
Sunita Sharma and Another vs. State of U.P. and 3 Others 2023 LiveLaw (AB) 271
Paltoo Ram Yadav vs. State Of U.P. And 6 Others 2023 LiveLaw (AB) 272
M. Devaraj vs. Rakesh Kumar Sharma And 5 Others 2023 LiveLaw (AB) 273
Vishwajeet vs. State Of U.P. Thru. Secy. Deptt. Of Home Lko 2023 LiveLaw (AB) 274
Krishna Kumar vs. State Of U.P.Thru Prin. Secy.Home Deptt. Lko And Ors 2023 LiveLaw (AB) 275
Neha Singh vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 276
Praveen Kumar vs. State of U.P. And 2 Others 2023 LiveLaw (AB) 277
Govardhan vs. State of U.P. 2023 LiveLaw (AB) 278
Prabhat Bhatnagar vs. State of U.P. and Others 2023 LiveLaw (AB) 279
Mahant Dinesh Das Disciple vs. State Of U.P. And 5 Others 2023 LiveLaw (AB) 280
M/S B L Pahariya Medical Store v. State of U.P. and Another 2023 LiveLaw (AB) 281
Pawan Sut @ Ram Sukh Tiwari vs. The State Of U.P. 2023 LiveLaw (AB) 282
Jugal vs. State Of U.P. 2023 LiveLaw (AB) 283
M/s Hotel The Grand Tulsi and 15 Others v. State of U.P. And & others 2023 LiveLaw (AB) 284
Mahadev Enterprises Firm and 2 others vs. State of UP and 5 Others 2023 LiveLaw (AB) 285
M/S Manoj Steel Traders vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 286
Abu Talib Husain And Another vs. State of U.P. and Another 2023 LiveLaw (AB) 287
Bhanwar Singh @ Karamvir vs. State of U.P. 2023 LiveLaw (AB) 288
Kusum Devi And Another vs. State of U.P. and Another 2023 LiveLaw (AB) 289
Gurucharan Das vs. Tribhuvan Pal And 2 Others 2023 LiveLaw (AB) 290
Ram Kumar v. State of U.P. and Another 2023 LiveLaw (AB) 291
Pankaj Kumar Priyam vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 292
ORDERS/JUDGMENTS OF THE WEEK
Case Title: Sunita Sharma and Another vs. State of U.P. and 3 Others 2023 LiveLaw (AB) 271 [WPIL No. 1578/2023]
Case Citation: 2023 LiveLaw (AB) 271
The Allahabad High Court dismissed a Public Interest Litigation (PIL) plea which challenged the appointment of the Advocates by the State Government as Additional Advocate General (AAG), Additional Government Advocate (AGA), Additional Chief Standing Counsel (Addl. CSC), Standing Counsels (SC), Brief Holders Civil and Brief Holder Criminal.
The bench comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava noted that an identical PIL was filed before a coordinate bench of the same court and is still pending.
"In view of the fact that a coordinate Bench of this Court is already seized of the issues raised in this petition as noticed herein above, we are not inclined to entertain this writ PIL and the same is dismissed."
Case Title: Paltoo Ram Yadav vs. State Of U.P. And 6 Others [WRIT C No. 10192 of 2023]
Case Citation: 2023 LiveLaw (AB) 272
The Allahabad High Court has held that remedy of revision under Section 210 of the U.P. Revenue Code, 2006 is available against the final order passed by the Commissioner in appeal under Section 207 of the Code, 2006.
The bench comprising of Justice Dr. Yogendra Kumar Srivastava held that the ‘proceeding decided’ in Section 210 (Power to call for the records) of the Code would include the final order passed by the Commissioner in appeal.
Case Title: M. Devaraj vs. Rakesh Kumar Sharma And 5 Others [SPECIAL APPEAL DEFECTIVE No. - 600 of 2023]
Case Citation: 2023 LiveLaw (AB) 273
The Allahabad High Court has held that merely calling for an explanation from an officer does not amount to any legal injury if neither stricture has been passed nor disparaging or harsh remarks have been made against him.
The bench comprising Justices Saumitra Dayal Singh and Rajendra Kumar-IV held that sitting in intra-court appeal jurisdiction, it cannot set aside an interlocutory order merely because inconvenience may have arisen to the alleged erring officer. There must be injury caused to the officer because of the interlocutory order to warrant interference in appellate jurisdiction.
Case Title: Vishwajeet vs. State Of U.P. Thru. Secy. Deptt. Of Home Lko 2023 LiveLaw (AB) 274 [CRIMINAL MISC. BAIL APPLICATION No. - 14479 of 2022]
Case Citation: 2023 LiveLaw (AB) 274
The Allahabad High Court granted bail to a minor who has been accused of posting comments against Goddess Durga on his Facebook Account.
Perusing his High School Marks-sheet and Aadhar card showing his year of birth to be January 2006, the bench of Justice Subhash Vidyarthi directed to release him on bail. He was arrested in September 2022.
Accused-Minor, booked under Sections 298, 505(i)(c) IPC and Section 67 of IT Act, was put behind bars on September 27, 2022, on the allegations that he was posting comments against Goddess Durga on his Facebook Account.
Case Title: Krishna Kumar vs. State Of U.P.Thru Prin. Secy.Home Deptt. Lko And Ors. [ WRIT - C No. - 35884 of 2019]
Case Citation: 2023 LiveLaw (AB) 275
The Allahabad High Court has held that a person cannot be evicted from the household merely at the instance of the senior citizen under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.
The bench comprising Justice Shree Prakash Singh held,
“A Tribunal, under Chapter-II of Act, 2007 cannot direct eviction simplicitor from the property at the instance of senior citizens, though the Tribunal can direct the children and relatives to make available a residence to such senior citizens in pursuance of an application, filed under the abovesaid chapter. It further emerges that the District Magistrate as an appellate authority under the Act, 2007, can ensure that no one should make any hindrance to a senior citizen to enjoy the property as per his ‘need’ and the right to eviction is the last step, where such authority finds that the need of a senior citizen is not being fulfilled.”
Case title - Neha Singh vs. State Of U.P. And 2 Others [WRIT - A No. - 7796 of 2023]
Case Citation: 2023 LiveLaw (AB) 276
Stressing that a person has a "constitutionally recognised" right to change his/her gender through surgical intervention, the Allahabad High Court directed the State DGP (Director General of Police) to dispose of an application filed by a female constable seeking permission to undergo Sex Reassignment Surgery (SRS).
The bench of Justice Ajit Kumar further said that if in modern society, we do not acknowledge this vested right in a person, to change one's identity, we would be "only encouraging gender identity disorder syndrome".
Compassionate Appointment Is Always On Regular Pay-Scale, Not Consolidated Pay: Allahabad High Court
Case Title: Praveen Kumar vs. State of U.P. And 2 Others [Writ A No. 6719/2023]
Case Citation: 2023 LiveLaw (AB) 277
The Allahabad High Court has held that compassionate appointment is in the nature of permanent employment and has to be granted on the regular pay scale. Being an exception to the rule of equality under Article 14 of the Constitution of India, it cannot be temporary in nature.
Petitioner was initially appointed as a Class IV employee on a consolidated pay of Rs.2550/- per month in 2004 by the Deputy Basic Education Officer, Etah. Thereafter, in 2010, he was granted a regular pay scale.
Case title - Govardhan vs. State of U.P. 2023 LiveLaw (AB) 278 [CRIMINAL MISC. WRIT PETITION No. - 12619 of 2023]
Case Citation: 2023 LiveLaw (AB) 278
Observing that the provisions of Uttar Pradesh Control of Goondas Act, 1970 are being rampantly missed, the Allahabad High Court has directed the State Government to form uniform guidelines by October 31 regarding the applicability of this Act
The bench of Justice Rahul Chaturvedi and Justice Mohd. Azhar Husain Idrisi ordered thus as it observed that in the state of UP, there is no uniformity in the executive authorities of the districts of UP regarding the applicability of this "deterrent" enactment causing "unwarranted piling up of the cases", challenging the notices under this Act etc.
Case Title: Prabhat Bhatnagar vs. State of U.P. and Others
Case Citation: 2023 LiveLaw (AB) 279
The Allahabad High Court set aside the dismissal of a government employee for allegedly entering into a second marriage during the subsistence of his first marriage, finding merit in the petitioner's argument that the punishment was unjust since the alleged second marriage was not sufficiently proven.
Justice Kshitij Shailendra further held that even if the second marriage was subsisting, the petitioner could not have been dismissed from service as Rule 29 of the UP Government Servants Conduct Rules only provides for minor punishment in case of a second marriage of a government servant.
Case Title: Mahant Dinesh Das Disciple vs. State Of U.P. And 5 Others [PIL No. - 1904 of 2023]
Case Citation: 2023 LiveLaw (AB) 280
The Allahabad High Court imposed a cost of Rs. 50,000 on the Mahant of Shri Thakur Ji Saket Bihari Mandir situated in Padrauna, Kushinagar, seeking directions for removal of unauthorized occupation over the temple land.
The bench comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava observed that the petitioner had invoked its PIL jurisdiction whereas the relief sought was of a private nature.
UP GST Act | Personal Hearing Mandatory Before Passing Adverse Orders: Allahabad High Court
Case Title: M/S B L Pahariya Medical Store v. State of U.P. and Another [Writ Tax No. - 981 of 2023]
Case Citation: 2023 LiveLaw (AB) 281
The Allahabad High Court has held that it is mandatory for the Assessing Authority to provide an opportunity of personal hearing to the Assesee before any adverse order is passed against him.
The bench comprising of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava held that “not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.”
Case title - Pawan Sut @ Ram Sukh Tiwari vs. The State Of U.P. 2023 LiveLaw (AB) 282 [CRIMINAL APPEAL No. - 661 of 2003]
Case Citation: 2023 LiveLaw (AB) 282
The Allahabad High Court acquitted a man who was convicted by the trial court under section 306 IPC and sentenced to undergo imprisonment of 8 years over allegations of instigating/abetting the suicide of his wife.
Having analysed the evidence on record, the Court said that some more overt act, though maybe an indirect one, was required on the part of the accused to bring his acts or conduct within the meaning of the word 'instigation' and therefore, he was entitled to acquittal.
Case Title: Jugal vs. State Of U.P. 2023 LiveLaw (AB) 283 [CAPITAL CASES No. - 3809 of 2015 with Reference No.10 of 2015]
Case Citation: 2023 LiveLaw (AB) 283
The Allahabad High Court set aside the sentence of the death penalty imposed on a man accused of killing his mother-in-law and brother-in-law by setting them ablaze as the Court noted that his guilt had not been established beyond reasonable doubt.
“We find in the facts of the case that the court below has not subjected the testimony of witnesses to careful scrutiny and has accepted the prosecution case on its basis. The law with regard to the evaluation of the dying declaration has also not been applied correctly in the facts of the present case,” the bench Of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi observed as it gave a benefit of doubt to the accused.
Writ Petition Under Article 226 Maintainable Against Orders Of NGT: Allahabad High Court Reiterates
Case Title: M/s Hotel The Grand Tulsi and 15 Others v. State of U.P. And & others [Writ C No. 21979/2023]
Case Citation: 2023 LiveLaw (AB) 284
The Allahabad High Court has reiterated that a writ petition under Article 226 of the Constitution is maintainable against the orders passed by National Green Tribunals.
The bench comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava observed that the principle laid down by the Supreme Court in Madhya Pradesh High Court Advocates Bar Association as to the power of judicial review not being ousted by Section 22 of the NGT Act is in consonance with the ratio of the seven-judge bench in L. Chandra Kumar vs. Union of India.
Case title - Mahadev Enterprises Firm and 2 others vs. State of UP and 5 Others [WPIL/1953/2023]
Case Citation: 2023 LiveLaw (AB) 285
The Allahabad High Court allowed the withdrawal of a Public Interest Litigation (PIL) plea seeking a direction to the State government and its authorities to not interfere with Hindu devotees from offering sugarcane juice to Kashi Vishwanath Jyotir Lingam in Varanasi.
During the course of the hearing, a bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava also said that it was imposing a cost of Rs. 1 lakh on the petitioner, however, on the petitioner's insistence, the court said that it would reconsider the cost part.
Case Title: M/S Manoj Steel Traders vS. State Of U.P. And 2 Others 2023 LiveLaw (AB) 286 [WRIT TAX No. - 391 of 2021]
Case Citation: 2023 LiveLaw (AB) 286
The Allahabad High Court has held that service of an order upon the advocate of an assessee will be deemed service for the purposes of the GST Act as the advocate is an authorized representative of the assessee.
Perusing Section 107 (Appeals to Appellate Authority) and Section 169 (Service of Notice in Certain Circumstances) of the UPGST Act, Justice Piyush Agrawal held,
“From the perusal of the aforesaid provisions, it is evidently clear that the appeal against an order can be preferred within a period of three months from the date of communication. Section 169 (1)(a) of the UPGST Act provides that any decision, order, summons, notice or other communication shall be served by any one of the following methods, namely, by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person. Therefore, it is evident that the order communicated on an Advocate will be deemed service upon the petitioner.”
Case title - Abu Talib Husain And Another vs. State of U.P. and Another 2023 LiveLaw (AB) 287 [APPLICATION U/S 482 No. - 18824 of 2023]
Case Citation: 2023 LiveLaw (AB) 287
The Allahabad High Court has held that a mutawalli of the wakf board, despite being deemed to be a public servant, is not entitled to protection under Section 197 CrPC (Prosecution of Judges and Public Servants).
The bench of Justice Arun Kumar Singh Deshwal said that for applicability of Section 197 CrPC even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government.
Case title - Bhanwar Singh @ Karamvir vs. State of U.P. 2023 LiveLaw (AB) 288
Case Citation: 2023 LiveLaw (AB) 288
In a significant observation, the Allahabad High Court has said that the failure of the state police to serve the summons and execute coercive processes issued by the court is affecting the fundamental rights of the accused and their right to obtain bail in a timely manner.
"Rights of the accused to a speedy trial under Article 21 of the Constitution of India are being violated and fair administration of right of bail is being hampered as a consequence of these failures of the police department," the Court opined.
Case Title: Kusum Devi And Another vs. State of U.P. and Another [Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. - 1907 of 2023]
Case Citation: 2023 LiveLaw (AB) 289
The Allahabad High Court has held that while invoking judicial precedents to decide a case with similar facts and circumstances, it was important to understand the relationship between logic and experience and reiterated that they cannot be applied mechanically.
Holding so, Justice Krishan Pahal rejected the anticipatory bail moved by the mother of the deceased who died in her house by suicide.
Case Title: Gurucharan Das vs. Tribhuvan Pal And 2 Others [ARCO No. 69/2020]
Case Citation: 2023 LiveLaw (AB) 290
The Allahabad High Court dismissed an application for the appointment of an arbitrator filed under Section 11(4) of the Arbitration and Conciliation Act, 2016 holding that such application being filed after 20 years of occurrence of dispute is bared by delay and laches.
Noting that an arbitration clause existed in the agreement between the parties, Justice Ashwani Kumar Mishra held
“What is, however, admitted on record is that a dispute did occur between the parties in the year 2000. The applicant was aware of the arbitration clause. However, the applicant choose not to invoke the arbitration clause and pursued his claim in suit, which has since been withdrawn. This Court finds substance in the objection of the opposite party that such dead and stale claim ought not to be allowed to be revived after such a long lapse of time. The limitation of three years expired in the year 2003. Filing of this petition, after 20 years is thus grossly barred by delay and latches.”
Case Title: Ram Kumar v. State of U.P. and Another [WRIT - A No. - 12283 of 2023]
Case Citation: 2023 LiveLaw (AB) 291
In a case seeking post retiral benefits, the Allahabad High Court has held that withholding retiral dues is not only arbitrary but also a sin in absence of provisions penalising such actions of employers, especially the State instrumentalities.
Justice Kshitij Shailendra observed that such withholding was morally and socially obnoxious.
“Withholding of retiral benefits of retired employees for years together is not only illegal and arbitrary but a sin if not an offence since no law has declared so. The officials, who are still in service and are instrumental in such delay causing harassment to the retired employee must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of social and economic justice which is one of the founding pillars of our constitution.”
Case Title: Pankaj Kumar Priyam vs. State Of U.P. And 2 Others [WRIT - A No. - 10907 of 2023]
Case Citation: 2023 LiveLaw (AB) 292
The Allahabad High Court has held that though the post office acts as an agent of the recruiter, application forms must reach the concerned authority on or before the last date of submission.
Justice Vikas Budhwar added that a recruiter cannot be made to wait indefinitely on the pretext that the form was sent to the post office on time.
“Respectfully following the judgments in the case of the Neena Chaturvedi (supra) and Rajendra Patel (supra), applying the law culled out in the judgment in the case of Neena Chaturvedi (supra) and Rajendra Patel (supra) in the present facts of the case it is apparently clear beyond any shadow of doubt that the though the post office acts as an agent of the respondent but the respondents cannot be bound by any delay on the receipt of the application form and further the respondents cannot be allowed to wait for time immemorial in that regard.”
