Allahabad High Court Digest 1-15 August, 2023

Allahabad High Court Digest 1-15 August, 2023

Nominal Index

Amar Singh And Others Vs. D.D.C.
2023 Stpl(Web) 4 Allahabad : Consolidation Of Holdings – Evidence By Genealogy Priest (Panda)

Amit Goel And 2 Others Vs. State Of U.P. And 2 Others
2023 STPL(Web) 29 Allahabad : Quashing of FIR – Prevention of Damages to Public Property

Amit Sharma Vs. State Of U.P. And Another
2023 Stpl(Web) 13 Allahabad : Quashing Of Fir – Compromise

Anil Kishore Gupta Vs. State Bank Of India
2023 STPL(Web) 41 Allahabad : Service Law – Promotion

Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh And 8 Others
2023 Stpl(Web) 7 Allahabad : Gyanwapi Survey – Challenge To Order

Avinash Kumar Vs. State Of U.P. And 3 Others
2023 Stpl(Web) 16 Allahabad : Writ Petition For Quashing Of Fir – Prima Facie Case

Chandra Rekha Vs. State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Home, Lucknow And Others
2023 Stpl(Web) 9 Allahabad : Essential Commodities – Confiscation Of Vehicle

Dinesh Kumar And 2 Ors. Vs. State Of U.P.
2023 Stpl(Web) 5 Allahabad : Probation – Granted

Digvendra Pratap Singh Vs. Union Of India And 2 Others
2023 STPL(Web) 35 Allahabad : Delay in Deposit of Tax– Condoned

Gaya Prasad Shukl Vs. State Of U.P.
2023 STPL(Web) 43 Allahabad : Assault on Government Servant – Conviction upheld

Harish Chandra Yadav Vs. Shri Shyam Kishor Mishra
2023 STPL(Web) 20 Allahabad : Contempt – Dismissed as order compiled

Iftikhar Alam Vs. M/S M.M.I. Tobacco Pvt. Ltd. And Another
2023 STPL(Web) 21 Allahabad : Trade mark – Injunction

Imran Khan Vs. State Of U.P. And Another
2023 STPL(Web) 19 Allahabad : Application with false averments – No case made out

Jag Mohan Agarwal Vs. Smt Kanchan Kumari Jain
2023 Stpl(Web) 11 Allahabad : Rent – Applicability Of Act

Jamshed And 6 Others Vs. State Of U.P. And Another
2023 Stpl(Web) 15 Allahabad : Attempt To Commit Culpable Homicide – Discharge

Jitendra Kumar Tiwari Vs. State Of U.P.
2023 STPL(Web) 26 Allahabad : Service Law – Cancelation of Appointment

Mantosh Yadav And 5 Others Vs. State Of U.P. And 2 Others
2023 STPL(Web) 28 Allahabad : Quashing of FIR – Not quashed 

Mata Din Singh Vs. D.D.C. And Others
2023 STPL(Web) 22 Allahabad : Revenue Entries – Set aside

Mata Pher Rawat Vs. State Of U.P. Thru. Prin. Secy. Homedeptt. Civil Sectt. Lko. And 3 Others
2023 STPL(Web) 42 Allahabad : Bail – Rape /POCSO

Mohammad Arif Vs. State Of U.P. And Another
2023 Stpl(Web) 14 Allahabad : Maintenance – Quantity

Mohammad Ubaid Vs. State Of U.P.
2023 Stpl(Web) 10 Allahabad : Bail – Extortion

Nangu @ Rambabu Jail Appeal Vs. State Of U.P
2023 STPL (Web) 32 Allahabad : Murder – No evidence except extra judicial confession

Padam Prakash Gupta Vs. Chhotey Lal
2023 STPL(Web) 25 Allahabad : Property Dispute – Co owner

Prakhar Nagar Vs. State Of U.P. And 4 Others
2023 Stpl(Web) 3 Allahabad : Education – Rustication

Pankajesh Vs. Chairman/ Appellate Authority And Another
2023 STPL(Web) 36 Allahabad : Service Law – Dismissal

Rajveer Singh And 62 Others Vs. State Of U.P. And Another
2023 Stpl(Web) 6 Allahabad : Service Law – Parity In Terms Of The Benefits

Ram Kishan S/O Jagesjwar Prasad And Ors. Vs. State Of U.P. Thru Principal Secy. Appoint And Personal And Ors.
2023 Stpl(Web) 12 Allahabad : Service Law – Absorption

Roma Pandey Vs. State Of U.P. And Another
2023 STPL(Web) 24 Allahabad : Direction for Trial within stipulated period – Directed

Rajendra Prasad Sharma Vs. State Of U.P.
2023 STPL(Web) 33 Allahabad : Land Acquisition – Payment of Compensation

Rakesh Kumar Goswami And 5 Others Vs. State Of U.P. And 2 Others
2023 STPL(Web) 34 Allahabad : Land Acquisition – Payment of Compensation

Ramit Lala And 3 Others Vs. State Of U.P. And 2 Others
2023 STPL(Web) 30 Allahabad : Habeas Corpus – Legal Remand

Sarita Yadav Vs. Saroja Devi And 8 Others
2023 STPL(Web) 27 Allahabad : Election – Recounting of votes

Suryabali Vs. State Of U.P.
2023 STPL(Web) 17 Allahabad :  Hurt – Acquittal upheld

Sunil Kumar Srivastava Vs. State Of U.P.
2023 STPL(Web) 31 Allahabad : Writ – Concealment of facts

State Of U.P. Vs. Har Dayal Singh And Others
2023 STPL(Web) 18 Allahabad : Murder – Acquittal upheld

Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad Vs. U.P. Power Corporation Limited And 3 Others
2023 Stpl(Web) 8 Allahabad : Electricity – Commercial Rates To Advocates

Uday Rajgarhia Vs. State Of U.P. And 5 Others
2023 Stpl(Web) 1 Allahabad : Criminal Procedure – Further Investigation

Vijay Singh Vs. Rajdeep Singh And Another
2023 Stpl(Web) 2 Allahabad : Election – Recounting Of Votes

Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lucknow And Anr.
2023 STPL(Web) 23 Allahabad : Prosecution Sanction – Validity of

Subject Index

Civil

Consolidation of Holdings – Evidence by Genealogy Priest (Panda) – Dispute regarding pedigree to settle dispute of share – Evidence by Genealogy Priest (Panda) held to be valid evidence – Held: That oral evidence of Genealogy Priest (Panda) supported by documents of his Bahi has more weight in comparison of oral evidence of Jalim Singh and Chitter Singh and there is no reasonable ground to disbelieve evidence of Genealogy Priest (Panda). Decision on such evidence valid. (Para 25) : Amar Singh And Others Vs. D.D.C. : 2023 Stpl(Web) 4 Allahabad

Constitution of India, 1950 – Article 227 – Gyanwapi Survey – Challenge to order – Survey to find out as to whether same has been constructed over a pre-existing structure of Hindu temple – Held: Once the Department of Archaeology and learned Senior Counsel representing the Department have made their stand clear that no damage is going to be caused to the property in question, this Court has no reason to doubt their statements and most importantly, the affidavit filed by the officer of the ASI explaining the circumstances. Further, it is settled proposition of law that issue of a Commission, at this stage, is permissible. In the opinion of the Court, the scientific survey/investigation proposed to be carried out by the Commission, is necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision. Petition fails. (Para 24) : Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh And 8 Others : 2023 Stpl(Web) 7 Allahabad

Revenue Entries – Set aside – Mandatory procedure for recording revenue entries – Adverse Possession not as per revenue entries – Reliance on the evidence of mukhtar-khas who was not competent to give evidence in regard to facts which were in exclusive knowledge of the original respondent qua to adverse possession. Lastly, the Authorities have also failed to give finding that possession of respondent was nec vi, nec clam, nec precario. – Entries set aside. (Para 34) Mata Din Singh Vs. D.D.C. And Others : 2023 STPL(Web) 22 Allahabad

Property Dispute – Co owner – Property not in name of plaintiff – Claim of ownership on ground of payment at the time of purchase – Trial Court dismiss the suit but first appeal court decreed the suit – Appeal by defendant – Receipts of Payments by plaintiff – Held: The First Appellate has found that these receipts were there and the reason given by the Trial Court to disbelieve the payment have been disbelieved by the First Appellate Court in toto. What goes further in favour of the plaintiff is that the defendant, when had replied to his notice dated 17.6.1977 before filing of the Suit had not mentioned about the payments made by the defendant, as has been alleged in the written statement, and therefore, this Court is also of the view that the findings as have been arrived at by the First Appellate Court are unassailable. (Para 19) Padam Prakash Gupta Vs. Chhotey Lal : 2023 STPL(Web) 25 Allahabad

Criminal

Code of Criminal Procedure, 1973 – Section 173(8) – Criminal Procedure – Further Investigation – Complainant challenge to further investigation by police on ground that no permission was taken from court and further investigation at this belated stage shall benefit the accused – Plea rejected – Held: The case in hand pertains to a cognizable offence, and, therefore, we are constrained to hold that submissions made by counsel for the petitioner are without substance. The police has unfettered power of investigation and such investigation can continue even after the charge sheet has been filed under section 173 (8) Cr.P.C. and cognizance has been taken thereon. No formal permission of the Magistrate is required for carrying out further investigation even thereafter. (Para 8, 19) : Uday Rajgarhia Vs. State Of U.P. And 5 Others : 2023 Stpl(Web) 1 Allahabad

Essential Commodities Act 1955 – Section -6A – Essential Commodities – Confiscation of Vehicle – Fine in lieu of confiscation – Mandatory provision – Collector confiscated vehicle without looking to provision in a mechanical and cursory manner – Held: It was incumbent upon the District Collector as well as to the Appellate Authority to provide/give an option, in lieu of his confiscation to pay a fine below the market price of the vehicle. Petitioner ordered to pay fine of Rs three lacs and vehicle to be released. (Para 15, 20) : Chandra Rekha Vs. State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Home, Lucknow And Others : 2023 Stpl(Web) 9 Allahabad

Code of Criminal Procedure, 1973 – Section 439 – Indian Penal Code, 1860 – Section – 147, 148, 323, 386, 504, 506 – Bail – Extortion – Demand of Rs two crore – Political rivals – Petitioner has criminal history of 10 cases and he was granted bail in all cases – As no delivery of property no case of extortion – only Case under section 385 (Putting in fear for extortion) is made out from FIR, which is bailable in nature – Bail granted with condition that applicant shall not come within the periphery of 100 meter from the house of informant and shall not disturb the peace and tranquillity of the informant.(Para 29, 30) : Mohammad Ubaid Vs. State Of U.P. : 2023 Stpl(Web) 10 Allahabad

Indian Penal Code, 1860 – Section 498-A, 323, 506 – Quashing of FIR – Compromise – Held: The applicant and opposite party do not want to pursue the case any further as stated by them. The matter has been mutually settled between the parties, therefore, no useful purpose would be served in proceeding with the matter further. FIR and Procedings quashed. (Para 6) : Amit Sharma Vs. State Of U.P. And Another : 2023 Stpl(Web) 13 Allahabad

Indian Penal Code, 1860 – Section 308 – Attempt to Commit Culpable Homicide – Discharge – Revision against rejection of discharge application – Medical legal report coupled with Statement of Witnesses showing prima facie case for framing of charge – No Discharge. (Para 3, 18, 19) : Jamshed And 6 Others Vs. State Of U.P. And Another : 2023 Stpl(Web) 15 Allahabad

Writ Petition for Quashing of FIR – Prima facie case – One Ajeet Kumar was arrested on the spot, who was found to be appearing in the examination in place of the petitioner – Held: First information report prima facie reveals commission of cognizable offence – No case made out for relief – Open for petitioner to go for anticipatory bail. (Para 4 to 6) : Avinash Kumar Vs. State Of U.P. And 3 Others : 2023 Stpl(Web) 16 Allahabad

Indian Penal Code, 1860 – Section 323, 325 and 504 – Hurt – Acquittal upheld – Acquittal by Trial court but conviction by first appeal court – Difference between MLC and Ocular evidence – There is material contradiction in her testimony and there is a contradiction with regard to role of the present revisionist. – Conviction by appeal court set aside. (Para 7, 17, 18) Suryabali Vs. State Of U.P. : 2023 STPL(Web) 17 Allahabad

Indian Penal Code, 1860 – Section 302 – Murder – Acquittal upheld – Appeal by State against acquittal – Appreciation of evidence – Case doubtful – Held: We find that the view taken by the learned Trial Court who disbelieved the presence of PW-1 at the place of occurrence, non-explanation of injuries of the deceased by the prosecution, evidence of PW-3, and the injuries of PW-1, PW-2 and Surinder Kaur, do not inspire confidence, to hold that the prosecution has failed to establish his case beyond doubt, is not perverse, and the conclusion so reached is based on evidences on record, which does not require any interference. (Para 16) State Of U.P. Vs. Har Dayal Singh And Others : 2023 STPL(Web) 18 Allahabad

Indian Penal Code, 1860 – Section 195 IPC, Code of Criminal Procedure, 1973 – Section 340 – Application with false averments – No case made out – Interim stay against any coercive action – No extension of stay – Stay automatically vacated after six months – Application to take coercive measures against the petitioner for ensuring their presence in the trial of the Criminal Case after lapse of interim stay – Application by petitioners u/s 195 IPC and Section 340 C PC against person for filing application with false averments therein for issuing coercive measures against him. Held: No ground to interfere in dismissal of application. (Para 16, 17) Imran Khan Vs. State Of U.P. And Another : 2023 STPL(Web) 19 Allahabad

Prevention of Corruption Act, 1988 – 7, 13(2), 13(1)(d) – Prosecution Sanction – Validity of – Corruption – Challenge to Validity of prosecution sanction in corruption case –Petitioner accused professor in university and sanction accorded against him by Vice Chancellor, which further confirmed by board of Management of university – Held: The sanction order was issued in accordance with the statutory power conferred upon the Vice-Chancellor by Section 12(3) of the Babasaheb Bhimrao Ambedkar University Act, 1994 and it was not without jurisdiction. Sanction held to be valid – Petition dismissed. (Para 28, 40, 41) Prof. Vipin Saxena Vs. C.B.I./A.C.B. Lucknow And Anr. : 2023 STPL(Web) 23 Allahabad

Direction for Trial within stipulated period – Directed – The court below shall consider and decide the above mentioned case, in accordance with law, by means of a reasoned and speaking order, expeditiously preferably within a period of one year from the date of production of a certified copy of this order without granting any unnecessary adjournment to either of the parties, if there is no other legal impediment. (Para 2) Roma Pandey Vs. State Of U.P. And Another : 2023 STPL(Web) 24 Allahabad

Indian Penal Code, 1860 – Section 143, 186, 341, 353, 504, 506 – Criminal Law (Amendment) Act, 2023 – Section 7 – Quashing of FIR – Not quashed – Plea of the petitioners is only that all the offences, alleged in the F.I.R., carry a sentence of less than seven years. Held: it is not the case of the petitioners that the F.I.R. does not disclose any offence. The offences, as alleged in the F.I.R., are cognizable offence, therefore, the F.I.R. cannot be quashed. Moreover, it can also not be quashed on the basis of submissions made. (Para 3, 4) Mantosh Yadav And 5 Others Vs. State Of U.P. And 2 Others : 2023 STPL(Web) 28 Allahabad

Prevention of Damages to Public Property Act, 1984, Section 3, 4 – Quashing of FIR – Prevention of Damages to Public Property – FIR alleges constructions being raised over land, at least part whereof, is enemy property and under the control of the Custodian – one of the reasons given for quashing the proceedings under the Prevention of Damages to Public Property Act was that Section 67 of the Revenue Code, 2006 provides a complete procedure for dealing with encroachment/unauthorized occupation of Gaon Sabha land, which is a complete code in itself. Plea not accepted – Held: There is no bar for the institution and prosecution of Civil and Criminal proceedings regarding an act, if both have the mandate of law. In any case, an act can given rise to both criminal and civil liability and therefore, both civil and criminal proceedings can be resorted to simultaneously. Further held it cannot be read to mean that the Prevention of Damage to Public Property Act can be invoked only where damage to public property is occasioned by vandalism, riots or public commotion.  Matter falls within the mischief of law – No quashing. (Para 8, 9, 10) Amit Goel And 2 Others Vs. State Of U.P. And 2 Others: 2023 STPL(Web) 29 Allahabad

Prevention of Corruption Act, 1988 – Sections 7, 8, 9, 10 & 12 – Habeas Corpus – Legal Remand – No Habeas Corpus – Petitioner arrested in corruption case – Charge sheet filed but no cognizance by court due to lack of Prosecution sanction – Petitioner not applied for bail – Remand u/s 167(2) of Cr PC – Held: The order of remand cannot be said to be illegal. For the same reason and since the remand order was not per se illegal in the absence of a prayer for default bail and in the absence of any bail bond, security etc., having been furnished. Moreover, the charge-sheet had already been filed and therefore, question of granting default bail did not arise even if cognizance had not been taken. Since the petitioners have been remanded to judicial custody by a legal order, such detention is not illegal. Therefore, no habeas corpus will lie. The petition, insofar as it claims issuance of a writ of habeas corpus is not maintainable (Para 20, 21) Ramit Lala And 3 Others Vs. State Of U.P. And 2 Others : 2023 STPL(Web) 30 Allahabad

Indian Penal Code, 1860 – Section 302 – Murder – No evidence except extra judicial confession – Appeal against conviction – Appreciation of evidence – Held: From the perusal of the evidence which has been brought on record, we are of the opinion that except for the extra-judicial confession made by the appellant before PW-2 Rajesh Kumar, there was no evidence against the accused as has such the prosecution has miserably failed to prove the circumstances and complete chain of events to prove the guilt of the appellant. We hold that the evidence on the point of extra-judicial confession does not inspire confidence and cannot be relied upon. There is no reliable evidence to satisfy the judicial mind that why the appellant will repose faith and make confess before a person who is in inimical terms with the accused. If, extra-judicial confession is excluded, nothing remains in the prosecution case, therefore, the accused-appellant is legitimately entitled to avail the benefit of doubt. Conviction set aside (Para 38, 42, 43) Nangu @ Rambabu Jail Appeal Vs. State Of U.P : 2023 STPL (Web) 32 Allahabad

Indian Penal Code, 1860 – Section 376 – Protection of children from of sexual offences, 2012 – Section 5, 6 – Bail – Rape /POCSO – Held: Considering overall facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties, it is evident that medical report indicates that private part of the victim was ruptured and vaginal bleeding is found, the summary discharge report also indicates that the victim received serious injuries on her private part that is why she was referred for surgery, the crime appears to be very serious as the infant of about 20months who was sleeping alone was raped by the applicant and only the minor contradictions in the statements of P.W.1, P.W.-2 and P.W.-3 will not help the applicant, thus, I do not find it to be a fit case for grant of bail. (Para 10) Mata Pher Rawat Vs. State Of U.P. Thru. Prin. Secy. Homedeptt. Civil Sectt. Lko. And 3 Others : 2023 STPL(Web) 42 Allahabad

Indian Penal Code, 1860 – Section – 353, 504, 506 – Assault on Government Servant – Conviction upheld – Case proved through evidence – Defence witness not reliable – Held: The trial court and the learned first appellate court has properly discussed the facts and circumstances of the case and also the evidence available on record and has rightly concluded that the alleged offence had been caused by the accused revisionist and the prosecution has successfully proved the case against him beyond the reasonable doubt. Conviction valid. (Para 18) Gaya Prasad Shukl Vs. State Of U.P. : 2023 STPL(Web) 43 Allahabad

Contempt

Contempt – Dismissed as order compiled – Order of writ Court has been complied with and representation of the applicant has been decided – Held: In view of said fact, as the order of writ Court was to the extent to decide the representation which the authorities have done, the contempt application is rendered infructuous and the same stands dismissed. (Para 1, 2) Harish Chandra Yadav Vs. Shri Shyam Kishor Mishra : 2023 STPL(Web) 20 Allahabad

Electricity

Electricity – Commercial rates to advocates – Challenge to commercial rates of electricity to advocates chamber – Held: The advocate’s profession cannot be categorised to be charged under LMV-2, which is applicable to the commercial activities. The lawyer’s activities are not commercial establishment as held by the Supreme Court and by various High Courts. The Rate Schedule LMV-2, which is applicable for the commercial activities, cannot be applied for the electricity supplied to the Lawyers Chambers. The Lawyers chambers / offices shall be charged only under LMV-1 Domestic category as the lawyers neither do any trade or business nor are involved in any commercial activity.  Petition allowed. (Para 36, 37) : Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad Vs. U.P. Power Corporation Limited And 3 Others : 2023 Stpl(Web) 8 Allahabad

Election

Uttar Pradesh Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and settlement of election disputes) Rules, 1994 – Section 35 – Election – Recounting of Votes – Challenge to order of recounting of votes – Held: Before Court can order for recount, two basic requirements must be satisfied i.e., (i) election petition must contain adequate statement of all material facts on which the petitioner relies in support of his allegations as to irregularity or illegality in counting of votes, and (ii) on basis of evidence adduced in support of allegations, Court must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of order as to recount is imperatively necessary. This Court finds that the impugned order suffers from illegality as there was no justification or prima facie satisfaction recorded by the Presiding Office prior to passing the order directing for recounting, thus, the impugned order dated 05.07.2023 cannot be sustained and is quashed. The writ petition is allowed. (Para 37, 38) : Vijay Singh Vs. Rajdeep Singh And Another : 2023 Stpl(Web) 2 Allahabad

U.P. Panchayat Raj Act, 1947 – Section 12C – Election – Recounting of votes – Conditions not fulfilled – Held: The tribunal has not taken into consideration the fact that as per well settled position of law in the case of Chandrika Prasad Yadav v. State of Bihar and others[(2004) 6 SCC 331], an order of recounting of votes can be passed when following conditions are fulfilled:

“(i)a prima facie case;

(ii) pleading of material facts stating irregularities in counting of votes;

(iii)  a roving and fishing inquiry shall not be made while directing re-counting of votes; and

(iv) an objection to the said effect has been taken recourse to.”

Recounting order set aside. (Para 66) Sarita Yadav Vs. Saroja Devi And 8 Others : 2023 STPL(Web) 27 Allahabad

Education

Education – Rustication – Absence of pleadings in the counter affidavit in regard to the participation of the petitioner in the enquiry – Held: It is noteworthy that the enquiry report does not discuss the nature of the statements and the manner in which they indicted the petitioner. Indictment of the petitioner on the basis of the enquiry report is perverse. In this wake in the absence of such consideration the enquiry report is vitiated by violation of principles of natural justice and non application of mind. The impugned orders of punishment passed on the foot of the said enquiry report are consequently perverse and illegal. Rustication set aside. (Para 11, 12, 13) : Prakhar Nagar Vs. State Of U.P. And 4 Others : 2023 Stpl(Web) 3 Allahabad

Eviction

Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 – Section 3, 4(2), 4(3) – Rent – Applicability of Act – Plea of non-applicability as not applicable on land – Premises given on rent not land – Held: In the present case, only land was leased out by the State authorities and that cannot be said to be a premises. Therefore, exception of Section 3(i) of the Act No. 13 of 1973 would not be applicable in the present case. Plea rejected. (Para 29) : Jag Mohan Agarwal Vs. Smt Kanchan Kumari Jain : 2023 Stpl(Web) 11 Allahabad

Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 – Section 10(4) – Rent – Fixation of interim rent – Fixation of Rent @ Rs 750/- per sq. ft. – Objection against – Objection Rejected – Held; There is reference of assessment order of ADM (FR) and as per that monthly rent is fixed at the rate of Rs. 833/- per sq. ft for other shops situated in the very same market. Fixed rent valid. (Para 50) : Jag Mohan Agarwal Vs. Smt Kanchan Kumari Jain : 2023 Stpl(Web) 11 Allahabad

Writ Petition – Maintainability in matter of Rent – Plea that there is provision of appeal under Section 35 of the Act No. 16 of 2021 and it is required on the part of the petitioner-defendant to first exhaust the alternative remedy so available – Held: But in the present petition, issue of applicability of Act No. 16 of 2021 is involved, which is absolutely a legal question, therefore, present petition is entertained and Court proceeded to decide the petition. (Para 23) : Jag Mohan Agarwal Vs. Smt Kanchan Kumari Jain : 2023 Stpl(Web) 11 Allahabad

Family

Protection of Women from Domestic Violence Act, 2005 – Section 12 – Maintenance – Quantity – Maintenance to wife and daughters – If maintenance amount excessive – Held: This amount comes around 1/3 of the salary of the revisionist who is engaged in Government service and is a teacher in basic primary school. Therefore, the amount awarded by the court below to the respondent cannot be considered as excessive, keeping in view the totality of facts and circumstances related to the case. (Para 8) : Mohammad Arif Vs. State Of U.P. And Another : 2023 Stpl(Web) 14 Allahabad

Indian Evidence Act, 1872 – Section 112 – Evidence – Paternity of Child – Maintenance – Dispute about paternity of child – Child born within 280 days of wife living home – Relying on Section 112 of Evidence Act – Held: The presumption of legitimacy is in favour of respondent. In absence of any scientific proof of parenthood of respondent there will be a presumption of legitimacy in her favour. (Para 7) : Mohammad Arif Vs. State Of U.P. And Another : 2023 Stpl(Web) 14 Allahabad

Intellectual Property

Trademarks Act, 1999 – Sections 29, 134, 135 – Trade mark – Injunction – Restraining the appellant from producing, selling or conducting any business in relation to tooth powder, which was alleged as a registered trademark of the plaintiff – Appeal against – Non consideration of serious dispute of trademark, its registration, its number, its withdrawal, if any, prior user, family history etc. etc, Injunction set aside – Remand Back. (Para 24, 28, 32) Iftikhar Alam Vs. M/S M.M.I. Tobacco Pvt. Ltd. And Another : 2023 STPL(Web) 21 Allahabad

Land Acquisition

Acquisition Act, 1894 – Section 28A – Land Acquisition – Payment of Compensation – Plea that as respondent No.3 has filed reference u/s 28A(3) of the Act, 1894 against redetermined award dated 27.2.2023 by respondent No.2, therefore, till the decision of the aforesaid reference enhanced amount of compensation cannot be disbursed to the petitioner – Appreciation of Law – Held: This Court is of the view that application for reference u/s 28A(3) of the Act, 1894 is not maintainable at the instance of respondent – Writ allowed – Direction to make payment in one month. (Para 5, 18) Rajendra Prasad Sharma Vs. State Of U.P.: 2023 STPL(Web) 33 Allahabad

Acquisition Act, 1894 – Section 28A – Land Acquisition – Payment of Compensation – Plea that as respondent No.3 has filed reference u/s 28A(3) of the Act, 1894 against redetermined award dated 27.2.2023 by respondent No.2, therefore, till the decision of the aforesaid reference enhanced amount of compensation cannot be disbursed to the petitioner – Appreciation of Law – Held: This Court is of the view that application for reference u/s 28A(3) of the Act, 1894 is not maintainable at the instance of respondent – Writ allowed – Direction to make payment in one month. (Para 5, 18) Rakesh Kumar Goswami And 5 Others Vs. State Of U.P. And 2 Others : 2023 STPL(Web) 34 Allahabad

Practice and Procedure

Writ – Concealment of facts – Prayer for action on complaint – Authority already initiated action and Party against whom complaint was made gone to court for action against him – Facts very well in knowledge of petitioner but not disclosed in petition – Held: Since petitioner has concealed material facts which have direct bearing on the result of this writ petition, as such I am of the view that petitioner is not entitled for any relief from this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India and the present writ petition is liable to be dismissed. (Para 18) Sunil Kumar Srivastava Vs. State Of U.P.: 2023 STPL(Web) 31 Allahabad

Probation

Probation of Offenders Act, 1958 – Section 3, 4 – Indian Penal Code, 1860 – Section 323, 504 – Probation – Granted – Conviction and Sentence of six month imprisonment – Case twenty year old – No any criminal antecedent between the parties during these years – Probation granted. (Para 28, 30) : Dinesh Kumar And 2 Ors. Vs. State Of U.P. : 2023 Stpl(Web) 5 Allahabad

Service Law

Constitution Of India, 1950 – Article 14 – Service Law – Parity in terms of the benefits – Plea to seek parity in terms of the benefits as paid to Home Guards to Prantiya Rakshak Dal members also. Held: . In view of the statutory provisions, the stand taken by the State Government as noted above and the fact that the payments made as remuneration are less than the minimum wages prescribed even for Class– IV employees, the action of the State Government is clearly arbitrary, the rights of the petitioners under Article 14 of the Constitution of India have been violated and the justification given by the State Government for not paying the remuneration equivalent to that being paid to the Home Guard Jawans is clearly arbitrary and illegal. In view thereof, the writ petitions deserve to be allowed and are accordingly allowed. The State Government shall also pass orders for paying the emoluments/remunerations to the petitioners at a rate equivalent to which is being paid to the Home Guards from time to time. (Para 19, 20) : Rajveer Singh And 62 Others Vs. State Of U.P. And Another : 2023 Stpl(Web) 6 Allahabad 

Uttar Pradesh Absorption of Surplus Employees of UPTRON India Limited in Government Service Rules, 2011 – Service Law – Absorption – Refusal to give the benefit of absorption in service – Based on earlier judgment, Direction to the State to treat the petitioners to be absorbed employees of the U.P. Civil Secretariat on a suitable post in terms of the notified order dated 20.12.2011 and to pay them their salary of their respective posts. All the petitioners shall be allowed to join on suitable posts forthwith in the Department and they shall be allowed to continue in service till they attain the age of superannuation at the age of 60 years and be also paid salary. (Para 47) : Ram Kishan S/O Jagesjwar Prasad And Ors. Vs. State Of U.P. Thru Principal Secy. Appoint And Personal And Ors. : 2023 Stpl(Web) 12 Allahabad

Service Law – Cancelation of Appointment – After litigation state government cancelled the cancelation of appointment latter – Petitioners similarly situated persons with who are allowed to join – Held: The petitioners, who are also selectees of same selection process, cannot be ruled out and their claim for joining on their respective posts cannot be ignored on technicalities. Mandamus issued commanding the respondents to allow the petitioners to join on their respective posts (Para 19 to 22) Jitendra Kumar Tiwari Vs. State Of U.P. : 2023 STPL(Web) 26 Allahabad

Service Law – Dismissal – Delay of 8 years in serving charge sheet – Held: There is no case set up by the Bank that irregularities did not come in the knowledge of the Bank in time. There is a specific bar on initiating proceedings after four years of the incident. It is not open for the respondent-Bank to manipulate the said guidelines of C.V.C. which are binding upon the Bank, merely by issuing a show cause notice after a lapse of 08 years. Any show cause notice was also required to be issued by the Bank within the said period prescribed under the C.V.C. guidelines. Thus, the initiation of disciplinary proceeding is directly hit by the aforesaid guidelines. Dismissal set aside – Petition allowed. (Para 21) Pankajesh Vs. Chairman/ Appellate Authority And Another : 2023 STPL(Web) 36 Allahabad

Service Law – Promotion – Denying promotion – Disciplinary Proceedings – Action already taken – Held: Once, the punishment of “warning” has been awarded to him and a note in this regard has been made in his service book, there is no occasion to deny the petitioner’s claim for appointment on the post of Senior Assistant. Bank to treat the petitioner to be appointed as Senior Assistant with all consequential benefits including further promotions to all the next higher posts. (Para 24, 30) Anil Kishore Gupta Vs. State Bank Of India : 2023 STPL(Web) 41 Allahabad

Taxation

Direct Tax Vivad Se Vishwas Act, 2020 – Delay in Deposit of Tax– Condoned – Delay of three days in depositing the balance amount of tax – Whether the delay of three days in depositing the arrears of tax can be condoned, considering the fact of unforeseen circumstances which were beyond the control of the petitioner. Hed: There may be valid reasons and/or causes for that person’s inability to make the payment, still no relief can be granted to him? There may be extra ordinary cases which are required to be considered on facts of each case. The Courts are meant to do justice and cannot compel a person to do something which was impossible for him to do. ” This Court is of the view that a delay of three days in depositing the arrears of tax of Rs. 8,67,137/-deserves to be condoned, and the amount balance tax deposited by the petitioner be accepted by the respondents treating the same well within time as per the scheme of Act, 2020 and also the impugned order /letter dated 25.8.2022, passed by Central Board of Direct Tax, is hereby quashed. (Para 10, 12, 14) Digvendra Pratap Singh Vs. Union Of India And 2 Others : 2023 STPL(Web) 35 Allahabad

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