Allahabad High Court Weekly Round-Up: September 18 To September 24, 2023

Dr Virendra Singh v. State Of U.P. And 8 Others 2023 LiveLaw (AB) 333

The Commissioner, Commercial Tax v. M/S Ramway Foods Ltd 2023 LiveLaw (AB) 334

Shakeel Ahmed vs. State of U.P. and connected matters 2023 LiveLaw (AB) 335

Sushil Kumar And 2 Others vs. Legislative Council U.P. Lko. Thru. Prin. Secy. And 11 Others 2023 LiveLaw (AB) 336

Anita Devi And Another vs. State of U.P 2023 LiveLaw (AB) 337

Santosh Kumar vs. Gayatri Devi 2023 LiveLaw (AB) 338

Amit Jaiswal v. Dr. Pankhuri Agarwal @ Dr. Pankhuri Jaiswal 2023 LiveLaw (AB) 339

Abhishek Singh v. Shashi Singh @ Bindu Singh 2023 LiveLaw (AB) 341

Chhote Lal Sharma v. State Of U.P. And 2 Others 2023 LiveLaw (AB) 342

Priti Yadav @ Pinki v. Ashwani Gwal 2023 LiveLaw (AB) 343

Union Of India And 3 Others vs. Yashpal 2023 LiveLaw (AB) 344

Smt. Yasmeen Zia v. Smt. Haneefa Khursheed And 2 Others 2023 LiveLaw (AB) 345

ORDERS/JUDGMENTS

Senior Citizens Act | Delegation Of Power To Sub-Divisional Magistrate Valid, Application Cannot Be Dismissed As Not Maintainable: Allahabad HC

Case Title: Dr Virendra Singh v. State Of U.P. And 8 Others [WRIT - C No. - 19524 of 2023]

Case Citation: 2023 LiveLaw (AB) 333

The Allahabad High Court has upheld the delegation of powers by the District Magistrate to the Sub-Divisional Magistrate under Section 22(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 22(2)(i) of the Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014.

A bench comprising of Justice Saumitra Dayal Singh and Justice Rajendra Kumar-IV held,

“The power being vested in the District Magistrate, by an act of the principal legislature and that power being permitted to be delegated to the Sub-Divisional Magistrate, wherever there may arise any doubt as to maintainability of any application filed by any senior citizen under the Act, either before the delegate or the delegatee i.e. the District Magistrate or the Sub-Divisional Magistrate, such an application may never be dismissed as non-maintainable, for reason of delegation made or its lack.”

UP VAT | Burden To Prove Purchase From Registered Dealer On Assesee: Allahabad High Court

Case Title: The Commissioner, Commercial Tax v. M/S Ramway Foods Ltd. [SALES/TRADE TAX REVISION No. - 26 of 2023]

Case Citation: 2023 LiveLaw (AB) 334

In a revision preferred by the Tax Department, the Allahabad High Court has held that the burden to prove that purchases were made from registered dealer lies on the Assesee claiming the same. The Department cannot be made to discharge a negative burden to prove that the sales were made from unregistered dealers.

Perusing Section 16 (Burden of Proof) of the Uttar Pradesh Value Added Tax Act, 2008, bench comprising of Justice Piyush Agrawal held,

“It is evidently clear that the burden of proof lies upon the dealer/opposite party. In other words, the burden of claim of ex U.P. purchases is squarely upon the opposite party, who has to discharge the said burden and not the Department. Merely showing the purchases through invoices from the registered dealer, will not enough and sufficient to proof that the purchases have been made bona fidely.”

Ayodhya Terror Attack 2005 | After 18 Years In Jail, Allahabad HC Grants Bail To 4 Accused, Lists Appeals Against Conviction On Dec 4

Case title - Shakeel Ahmed vs. State of U.P. and connected matters

Case Citation: 2023 LiveLaw (AB) 335

The Allahabad High Court granted bail to 4 alleged conspirators of the 2005 Ayodhya Ram Janmabhumi terror attack case who were found guilty in 2019 by a special court in Allahabad of conspiracy and providing logistic and material help to terror suspects.

While passing the order for bail, the bench of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi took into account the long period of incarceration of the accused who were arrested in August 2005.

Allahabad High Court Directs CBI To Conduct Preliminary Probe Into Recruitment For UP Assembly Secretariat Staff

Case title - Sushil Kumar And 2 Others vs. Legislative Council U.P. Lko. Thru. Prin. Secy. And 11 Others 2023 LiveLaw (AB) 336

Case Citation: 2023 LiveLaw (AB) 336

Expressing doubts regarding fairness in the recruitment process of Uttar Pradesh Legislative Assembly and Council staff, the Allahabad High Court has directed the CBI to conduct a preliminary probe into the matter and submit a report by the first week of November.

The bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla ordered thus while hearing a special appeal as well as a writ petition filed before it challenging an earlier order which dismissed a writ filed by petitioners in April this year challenging the recruitment process.

Allahabad High Court Grants Bail To 2 Women Accused Of Condemning Hindu Religion, Inciting People To Convert To Christianity

Case title - Anita Devi And Another vs. State of U.P [CRIMINAL MISC. BAIL APPLICATION No. - 39963 of 2023]

Case citation: 2023 LiveLaw (AB) 337

The Allahabad High Court granted bail to 3 women who were arrested in August this year on the allegations of condemning and criticising Hindu religion and inciting people to convert to Christianity.

The bench of Justice Vikram D. Chauhan passed the order noting that the state counsel failed to show any material or circumstances that the accused/applicants are not entitled to bail in the larger interests of the public or State.

Earning Spouse Has A Duty To Protect Life, Liberty & Dignity Of Other As Long As Marriage Survives: Allahabad High Court

Case title - Santosh Kumar vs. Gayatri Devi 2023 LiveLaw (AB) 338 [FIRST APPEAL DEFECTIVE No. - 279 of 2023]

Case Citation: 2023 LiveLaw (AB) 338

The Allahabad High Court observed that so long as a marriage survives, it remains the duty of the earning spouse to protect the life, liberty and dignity of the other.

The bench of Justice Saumitra Dayal Singh and Justice Rajendra Kumar-IV observed thus while hearing an appeal filed by one Santosh Kumar challenging an order passed by the Family Court under Section 24 of the Hindu Marriage Act, 1955 providing for Rs. 7K per month as interim maintenance to his wife.

Mutual Divorce: Family Court Can't Reject Application To Waive Cooling Off Period In Mechanical Manner, Says Allahabad High Court

Case Title: Amit Jaiswal v. Dr. Pankhuri Agarwal @ Dr. Pankhuri Jaiswal [FIRST APPEAL No. - 1033 of 2023]

Case Citation: 2023 LiveLaw (AB) 339

The Allahabad High Court has held that the family court ought not to reject an application filed for waving of the statutory six-month cooling off period in divorce proceedings under Section 13B(2) of the Hindu Marriage Act, 1955 in a mechanical manner.

A bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal placed reliance on an earlier decision of the bench headed by Justice Singh in Vijay Agarwal v. Smt. Suchita Bansal, wherein the Court had held that the cooling off period under the provision is not mandatory. It is merely directory, and the discretion to waive the same rests with the Court.

'Cheating Qua Client & Court': Allahabad HC Deplores Lawyer, Petitioners Over Successive Pleas Challenging Same FIR, Imposes ₹50K Cost

Case Citation: 2023 LiveLaw (AB) 340

The Allahabad High Court on Tuesday expressed great displeasure and rebuked a lawyer for filing a criminal writ plea (challenging an FIR) just 5 days after a plea against the same FIR had been dismissed by the HC.

Calling the conduct of the petitioner as well as counsel as ‘highly deplorable’, the bench of Justice Rahul Chaturvedi and Justice Vivek Kumar Singh imposed a cost of Rs. 50K on the petitioners.

“It is cheating qua the client as well as the Court. It is established that without taking leave from the Court, no second writ petition could be filed but the petitioner has got an audacity to file successive writ petition for the same cause of action,” the Court remarked while condemning the filing of the second petition for the same cause.

Hindu Marriage Act | Every Amendment Sought To Pleadings Can't Be Allowed, Party Must Show Irreparable Injury: Allahabad High Court

Case Title : Abhishek Singh v. Shashi Singh @ Bindu Singh [First Appeal No. - 995 of 2023]

Case Citation: 2023 LiveLaw (AB) 341

The Allahabad High Court has held that an amendment application may only be allowed if the party seeking amendment can show that there will be irreparable injury or justice will not be done in case the amendment sought is not allowed.

Court was hearing an appeal against the order of the Family Court rejecting application seeking amendment in written statement on the ground that it was necessary amendment. It was argued that the appellant-husband had missed raising the objection in the written statement that the respondent-wife had set up a claim contrary to Section 27 of the Hindu Marriage Act, 1955.

Allahabad High Court Rules SC's Automatic Stay Vacation Direction In 'Asian Resurfacing' Applies At All Stages Including Investigation, Inquiry

Case Title: Chhote Lal Sharma v. State Of U.P. And 2 Others

Case Citation: 2023 LiveLaw (AB) 342

The Allahabad High Court has held that the Supreme Court's dictum of automatic vacation of stay in Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation applies to all civil as well as criminal cases irrespective of the "stage" of the proceeding.

A bench comprising of Justice Jyotsna Sharma held,

“In my opinion, though in para- 36 of the judgment words "pending trial" has been used, but the intention of the Apex Court was to effectuate such direction, in all the civil as well as criminal cases irrespective of the "stage" of the proceeding. The court intended its ruling to apply wherever stay is granted, whether at the stage of investigation or at the stage of inquiry or at the stage of committal or the stages after the trial has commenced in a criminal case.”

Allahabad High Court Waives Cooling Off Period For Mutual Divorce; Says Courts Must Depart From Conservative Approach

Case Title: Priti Yadav @ Pinki v. Ashwani Gwal [FIRST APPEAL DEFECTIVE No. - 294 of 2023]

Case Citation: 2023 LiveLaw (AB) 343

The Allahabad High Court has set aside the order of the Family Court directing parties to mediation, instead of waiving the cooling off period after almost eight years of living separately. The Court held that with changing times, the Court should be mindful of the realities and depart from obsolete and conservative approach in matrimonial disputes.

The bench comprising of Justices Saumitra Dayal Singh and Arun Kumar Singh Deshwal held,

“In the context of matrimonial disputes arising in present times, the courts are required to stay tuned to the realities of life and depart from obsolete and conservative approach to such litigation. While preservation of marriage survives as a desired goal and all the courts must first examine if a troubled marriage may be made to work for the good of the parties involved, at the same time it essentially being a matter of personal choice, upon fair consensus reached by the parties to dissolve their marriage, parties may not be obstructed only to seek technical compliance of procedural safeguards.”

Gravity Of Misconduct, Past Conduct, Previous Penalty Necessary Factors Before Dismissal From Service: Allahabad High Court

Case Title: Union Of India And 3 Others vs. Yashpal

Case Citation: 2023 LiveLaw (AB) 344

The Allahabad High Court has held that while awarding major punishment of dismissal from service, surrounding factors along with past record need to be considered by the disciplinary authority.

“Gravity of misconduct, past conduct, nature of duties, position in organisation, previous penalty, if any and requirement of discipline to be enforced were relevant to be considered by the disciplinary authority before the punishment may have been awarded to the respondent,” observed the Court.

Passing Of Final Order Pursuant To Remand Does Not Render Appeal Under Order XLIII Rule 1(U) CPC Defunct: Allahabad High Court

Case Title: Smt. Yasmeen Zia v. Smt. Haneefa Khursheed And 2 Others

Case Citation: 2023 LiveLaw (AB) 345

The Allahabad High Court has held that passing of a subsequent order on point of remand does not take away the substantive right of appeal against the order of remand itself.

Order XLIII Rule 1(u) CPC makes an order under Rule 23 or Rule 23-A of Order XLI remanding a case, appealable.

“The order of remand under the statutory scheme would, therefore, be seen to have independent existence and cannot be held to have been nullified merely for the reason that the remand order has subsequently been given effect and the point on which the remand had been made, has been decided,” held Justice Dr. Yogendra Kumar Srivastava.

Other Updates

Allahabad CAT Bar Association Moves High Court Against Notification Transferring Jurisdiction Of Uttarakhand From Allahabad To New Delhi

A petition has been filed by the Central Administrative Bar Association, Allahabad before the Allahabad High Court challenging the transfer of jurisdiction of Uttarakhand from CAT's Allahabad Bench to its Principal Bench at New Delhi.

On 18^th July, 2023, Ministry of Personnel (Public Grievances and Pensions) Department of Personnel and Training issued a notification transferring jurisdiction of State of Uttarakhand to Principal Bench of the Central Administrative Tribunal at New Delhi. It is claimed the aforesaid jurisdiction has been with the Allahabad Bench of CAT since 1985 and the transfer is in violation of the Constitution of India as well as the Administrative Tribunals Act, 1985.

[Hapur Incident] No Mention Of Injuries Sustained By Lawyers In SIT's Interim Report: Allahabad High Court Expresses Dissatisfaction

The Allahabad High Court expressed dissatisfaction with the preliminary report submitted by the State constituted Special Investigation Team in sealed cover, with respect to investigation into the Police lathicharge on lawyers in Hapur District.

A bench of Chief Justice Pritinker Diwaker and Justice Mahesh Chandra Tripathi specifically noted that there was no mention of the injuries sustained by lawyers in the incident. Further, the Court noted that statements of any aggrieved lawyer did not find any mention in the inquiry report. The Court noted that the report only mentioned that the lawyers and the crowd in that area was out of control and therefore, cane-charge was done. However, there was no mention of any lawyer being armed.

'Specify Steps Taken To Protect Monuments, Remove Encroachment From Heritage Sites In Lucknow': Allahabad HC To UP Govt

The bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order on a 2013 Public Interest Litigation (PIL) plea filed by a Lucknow-based Advocate Syed Mohammad Haider Rizvi.

Allahabad High Court Directs UP Govt To Produce Records Of Selection Process Concerning Engagement Of Govt Counsels In HC

The bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla passed this order on a Public Interest Litigation (PIL) plea which was moved last year challenging the appointments of state law officers alleging that the officers were appointed based on the recommendations of Rashtriya Swayamsevak Sangh (RSS).