Himachal Pradesh Digest, 16 to 31 August, 2023

Himachal Pradesh 2nd Digest, 16 to 31 August

Nominal Index

Arun Kumar Vs. State Of H.P. And Others
2023 STPL(Web) 116 HP: Service Law – Compassionate Appointment

Baba Sarabojot Singh Bedi Vs. Sada Ram
2023 STPL(Web) 107 HP : Civil Procedure – Additional Evidence

Babadeen And Others Vs. State Of H.P. & Others
2023 STPL(Web) 113 HP: Execution – Matter put before Chairman-cum-Deputy Commissioner

Bakshish Singh Vs. Raj Kumar Alias Raju And Others
2023 STPL(Web) 110 HP: MACT – Wrong registration number

Bachittar Singh (Since Deceased Through His Lrs & Others.)  Vs. Bachint Singh
2023 STPL(Web) 112 HP: Adverse Possession – Not made out

Chander Kamal Baljee Vs. H.P. State Environment Impact Assessment Authority And Other
2023 STPL(Web) 99 HP: Environment Law – Deemed Sanction

Dilbag Singh Vs. Vipan Kumar & Others
2023 STPL(Web) 130 HP: MACT – Compensation enhanced

Ganesh Dutt Thakur Vs. State Of H.P. & Ors.
2023 STPL(Web) 109 HP: Service Law – Transfer

Hari Ram (Since Deceased) Through His Lrs. Vs. Anita And Another
2023 STPL(Web) 92 HP: Declaration suit with possession – Failed

Sh. Hem Raj Vs. State Of H.P. And Others
2023 STPL(Web) 121 HP: Service Law – Waiting List

Indira Devi And Others Vs. Chandu Ram And Others
2023 STPL(Web) 131 HP: MACT – Compensation enhanced

Kavita Kumari Vs. Abishek Jain & Others
2023 STPL(Web) 93 HP: Contempt – No wilful disobedience

Kamla Devi Vs. Roop Chand & Others
2023 STPL(Web) 101 HP : MACT – Wrong disclosure of registration number of offending vehicle

Dr. Kewal Krishan And Others Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 95 HP: Service Law – Discrimination

Kuldeep Kumar & Anr. State Of H.P. & Anr.
2023 STPL(Web) 108 HP: Gang Rape – Consent

Manta Devi Vs. Kamla Devi
2023 STPL(Web) 120 HP: Possession denied as demarcation not proper: Direction to carry out demarcation again

Mohinder Singh Vs. State Of H.P. & Others
2023 STPL(Web) 127 HP: Service Law – Arrears

Nand Lal Vs. State Of Himachal Pradesh
2023 STPL(Web) 104 HP: NDPS – Vehicle recovered in personal search

New India Assurance Company Vs. Shakuntla Devi And Others
2023 STPL(Web) 102 HP: MACT – Gratuitous Passenger

Partap Singh Vs. Gurdev Singh & Ors.
2023 STPL(Web) 103 HP : Will – Coparcener

Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors.
2023 STPL(Web) 97 HP: Limitation – Assailing of Will

Pooja Naryal Vs. State Of H.P. & Others
2023 STPL(Web) 117 HP: Service Law – Re-engagement

Pritam Chand Vs. Amariti Devi
2023 STPL(Web) 119 HP: Will – Suspicious Circumstances

Sh. Raj Kumar Vs. State Of H.P. And Ors.
2023 STPL(Web) 91 HP : Service Law – Promotion

Rakesh Kumar Sharma And Ors. Vs. State Of Himachal Pradesh And Ors.
2023 STPL(Web) 122 HP: Service Law – Seniority

Ramesh Kumar Vs. Mohan Lal
2023 STPL(Web) 125 HP: Dishonour of Cheque – Unilateral Prayer for Compounding

Rameshwar Yadav Vs. State Of Himachal Pradesh
2023 STPL(Web) 90 HP : NDPS – Search

Rajiya Sultan Vs. H.P. University And Others
2023 STPL(Web) 94 HP : Service Law – Appointment under EWS Category

Sh. Ravinder Kumar And Ors. Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 106 HP: Service Law – Experience

Reeta Vs. State Of H.P.
2023 STPL(Web) 111 HP : Bail – NDPS

Rohtash Vs. State Of Himachal Pradesh
2023 STPL(Web) 115 HP: NDPS – Search, Seizure and arrest by Gazetted officer

Sandeep Kumar Vs. State Of H.P.
2023 STPL(Web) 124 HP: Service Law – Qualification

Santokh Singh (Since Deceased) Through His Lrs And Others Vs. Pameshwari Devi And Others
2023 STPL(Web) 89 HP : Evidence – Document produced by party not required to prove against same party

Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.
2023 STPL(Web) 132 HP: Additional Evidence – Due Diligence

Sunita Verma Vs. H.P. Tourism Development Corporation Ltd.
2023 STPL(Web) 96 HP: Service Law – Compassionate appointment

State Of Himachal Pradesh Vs. Daljeet Singh
2023 STPL(Web) 100 HP: Criminal breach of trust – Acquittal Valid

State Of H.P. Vs. Ram Parkash
2023 STPL(Web) 118 HP: NDPS – Sentence

Suraj Alias Thoia Alias Dumba Vs. State Of H.P.
2023 STPL(Web) 114 HP: Rape – Consent

Tejinder Singh Vs. Beverley Singh
2023 STPL(Web) 123 HP: Family Court – Maintainability of appeal

Thakru Ram Vs. State Of H.P & Anr.
2023 STPL(Web) 129 HP: Service Law – Qualification

Veena Kumari & Ors. Vs. Jameel Ahmed Khairsar & Others
2023 STPL(Web) 98 HP : MACT – Second Petition

Veena Devi Vs. State Of H.P. & Others
2023 STPL(Web) 126 HP: Service Law – Pension

Dr. Vinay Patyal Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 128 HP: Service Law – Pension

Vicky And Others Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 105 HP: Service Law – Seniority

Subject Index

Civil

Evidence – Document produced by party not required to prove against same party – Plea of plaintiff that the letter could not be read against the defendant, as the same was not proved as per the law. Latter produced by plaintiff – Held: No evidence is required to prove the document produced by the party and it can be read against him. (Para 17, 18) Santokh Singh (Since Deceased) Through His Lrs And Others Vs. Pameshwari Devi And Others: 2023 STPL(Web) 89 HP

Code of Civil Procedure, 1908 – Order 6, Rule 17 – Amendment of plaint – Contradictory to the stand – Plea against disallowing the application for amendment – Held: The proposed amendment was contradictory to the stand taken by the plaintiffs. – the amendment was not necessary and would have caused a prejudice to the defendants which could not have been compensated in costs.. Thus, there is no infirmity in disallowing the application for amendment. (Para 28) Santokh Singh (Since Deceased) Through His Lrs And Others Vs. Pameshwari Devi And Others: 2023 STPL(Web) 89 HP

Adverse possession – Long possession – Distinction between – There was a distinction between a long possession and adverse possession. Long possession cannot be equated to adverse possession. (Para 7) Santokh Singh (Since Deceased) Through His Lrs And Others Vs. Pameshwari Devi And Others: 2023 STPL(Web) 89 HP

Declaration suit with possession – Failed – Plaintiff Suit dismissed by both lower courts – Second appeal by Plaintiff – Defendant has never declined the title of plaintiff – As per evidence defendant construct house on suit land with consent of plaintiff – Held: Both the learned Courts below held that the plaintiff was the owner of the land underneath the construction. They held that the plaintiff was not entitled to take possession of the structure because he had permitted the predecessor-in-interest of the defendant to raise construction. Second appeal dismissed (Para 21) Hari Ram (Since Deceased) Through His Lrs. Vs. Anita And Another : 2023 STPL(Web) 92 HP

Limitation Act, 1963 – Article 65 – Limitation – Assailing of Will – Plea of bar of limitation – Held: In the present case, the Mutation was attested on 25.03.1981, whereas the present suit was filed on 25.02.1993, i.e. within 12 years, therefore, the Suit is within limitation. (Para 17, 22) Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 97 HP

Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Will – Proof of – The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder:-

“(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and

(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and

iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounded can be taken to bed is charged on proof of the essential facts indicated therein.”  (Para 29) Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 97 HP

Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Will – Suspicious Circumstance – Plaintiffs did not plead any suspicious circumstance. The case of the plaintiffs was the denial of the execution of the Will. They never claimed that the Will was shrouded in suspicious circumstances and should be discarded due to suspicious circumstances. Held: There is no requirement of law that the Will is to be written by a professional document writer. Further held that Will is not suspicious because the scribe and witnesses were known to the beneficiaries. (Para 26, 32, 42)

There is a small difference in the spacing, which is normal and it cannot be held that the Will was written unnaturally and the submission that Will has to be ignored due to unequal spacing, is not acceptable.  (Para 55) Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 97 HP

Will – Exclusion of Natural Heirs – If a suspicious circumstance – Held: The whole idea of executing the will is to interfere with the natural line of succession. As in the present case, the two executors are sons of a half- blood brother of Saroj Bala, whereas the objector’s descendants of a full-blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance when some of her descendants are even beneficiaries under the will. The Will cannot be held to be bad because of the exclusion of the natural heirs. (Para 49, 50, 51) Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 97 HP

Will – Mental Condition – No evidence of the insanity of testator produced – No presumption can be drawn from the old age of testator that he could not understand the nature of the Will. (Para 63, 63) Sh. Pratap Singh & Ors. Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 97 HP

Will – Coparcener – A coparcener can execute a Will regarding the coparcenary property. Further held that it was never pleaded that Testator had executed a Will exceeding his share, hence, the Will cannot be held to be bad on the ground that the Will exceeded the share of testator. (Para 20, 23) Partap Singh Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 103 HP

Will – Nature of Property – Ancestral Property or Self acquired Property – Since, Dhani Ram had acquired the property from his father; therefore, the nature of property in his hand will be ancestral qua his sons. This mutation was attested regarding Mauja Khadeen, where the suit land is located. No evidence was laid by the defendants to prove that Dhani Ram had acquired the property through his efforts. Hence, the plea that the suit land was ancestral in the hands of Dhani Ram has to be accepted as correct. (Para 19) Partap Singh Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 103 HP

Will – Sound Mind at old age – The old age of the executant does not show that he was not in a sound disposing state of mind – Witness (Para 37) Partap Singh Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 103 HP

Will – Suspicious Circumstances – Will in favour of grandchildren – The testator had executed a Will earlier in favour of his sons He also wanted to give something to his grandchildren; therefore, he was executing a Will in favour of his grandchildren. The reason assigned by testator to execute the Will in favour of his grandchildren cannot be said to be illusory. he would have some affinity with his grandchildren and the execution of the Will in their favour cannot be said to be suspicious. (Para 44) Partap Singh Vs. Gurdev Singh & Ors. : 2023 STPL(Web) 103 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Civil Procedure – Additional Evidence – Not unable to produce – Plaintiff is seeking to produce on record copies of Jamabandi for the year 2010-11 and Misal Hakiat Bandobast for the year 1994-95. The record of the learned trial Court shows that the plaintiff had filed a copy of Misal Hakiat Bandobast Jadid for the year 1994-95, before the learned Trial Court; however, the same was not exhibited. Therefore, the document was not only available with the plaintiff/applicant but it was also filed before the learned Trial Court. Held: the condition that the applicant/plaintiff was unable to produce the document despite the exercise of due diligence is not satisfied. Additional evidence not allowed. (Para 19) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Civil Procedure – Additional Evidence – No change in Circumstances – Plaintiff is seeking to produce a copy of Jamabandi for the year 2010-11 for a period after the pronouncement of the judgment and decree by the Trial Court and First Appellate Court.

Held: It is not shown that the rights and liabilities have changed after the passing of the judgments and decrese passed by the learned Courts below; therefore, the document sought to be produced on record is not relevant for the adjudication of the dispute pending between the parties and the same cannot be taken on record. (Para 22, 24, 25) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Evidence not found to be perverse –  The learned Courts below concurrently held that the plaintiff had relied upon the gift deed, which was not produced the plaintiff asserted that the defendant had attorned in his favour. He never examined himself, therefore, an adverse inference has to be drawn that the version of the plaintiff regarding the attornment is not correct. Once, it is so held, the plaintiff cannot be held entitled to the possession and mesne profits and there is no infirmity in the findings recorded by the learned Courts below. Second appeal dismissed. (Para 32, 34) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Adverse Possession – Not made out – The defendant nowhere said that he or his predecessor in interest had occupied the suit land in denial of the right of the true owner – Adverse Possession not made out (Para 17) Bachittar Singh (Since Deceased Through His Lrs & Others.)  Vs. Bachint Singh : 2023 STPL(Web) 112 HP

Identity of Location – Dismissal set aside – Held: The learned trial Court had appointed a Local Commissioner, who visited the spot and prepared a report. He also prepared a rough site plan, which was annexed to his report. He had mentioned that the construction was being raised. He had identified the wall. The Local Commissioner did not have any difficulty in locating the suit land and it is difficult to see how the learned Courts below will have a difficulty in executing the decree. The learned First Appellate Court had erred in dismissing the suit on the grounds of lack of identification of the suit land. (Para 25, 26) Bachittar Singh (Since Deceased Through His Lrs & Others.)  Vs. Bachint Singh : 2023 STPL(Web) 112 HP

Execution – Matter put before Chairman-cum-Deputy Commissioner – Matter closed with direction to decide matter upto 3-12-2023 (Para 3) Babadeen And Others Vs. State Of H.P. & Others: 2023 STPL(Web) 113 HP

Will – Suspicious Circumstances – Testator has signed the will, while on other documents he has put his thumb impression – Wrong age mentioned in will – Will do not become free from suspicion on ground of registration – Held: First appeal court rightly not relied on will.(Para 27, 29, 31) Pritam Chand Vs. Amariti Devi : 2023 STPL(Web) 119 HP

Indian Evidence Act, 1872 – Section 65(e), 65 (f) – Evidence – Public Document – Will – Will was registered and the plaintiff produced a certified copy of the Will. Held:  Section 65(e) and 65 (f)of the Indian Evidence Act, makes the certified copy of the document and no other kind of secondary evidence admissible when the original is a public document. No doubt on the Will on the ground that a certified copy was not produced. (Para 21) Pritam Chand Vs. Amariti Devi : 2023 STPL(Web) 119 HP

Possession – Demarcation – Courts below declined the relief of possession on the ground that the report of the demarcation was not proper and no site plan was prepared after the demarcation – Held: This was not proper. The matter is remitted to the learned Trial court with the direction to appoint a Local Commissioner to carry out demarcation as per the decree passed by it for declaration as per the law and thereafter decide the prayer of the plaintiff to seek possession as per the report. (Para 25, 31) Manta Devi Vs. Kamla Devi : 2023 STPL(Web) 120 HP

Family Courts Act, 1984 – Section 19 – Family Court – Maintainability of appeal – Refusal of Injunction order – It is not interlocutory order – Appeal maintainable – Held: The order passed under Order 39 Rules 1 & 2 CPC read with Section 7(1) (d) of the Act, deciding the application for temporary injunction prayed for, possesses the characteristics and trapping of finality. It affects valuable rights of the parties. It decides important aspects of the main trial in ancillary proceedings. Such an order though not conclusive of main dispute, but is conclusive of subordinate matter. It decides some contentious issues between the parties. Such an order passed under Order 39 Rules 1 & 2 CPC cannot be said to be totally interlocutory in nature. (Para 5) Tejinder Singh Vs. Beverley Singh: 2023 STPL(Web) 123 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Additional Evidence – Due Diligence – Due diligence of the party contesting the suit has to be shown and not the due diligence of the legal representatives. (Para 21) Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.:2023 STPL(Web) 132 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Additional Evidence – When not to allowed – The additional evidence cannot be led to fill up the lacuna left – The additional evidence sought to be led is irrelevant as not related to suit property – Rightly not allowed. (Para 24, 25, 26) Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.:2023 STPL(Web) 132 HP

Practice and Procedure – No reason by first appellate court for differentiated from trial court – Trial Court relied on revenue entries and other established facts – Held: The learned First Appellate Court erred in upsetting the judgment and decree of the learned Trial Court without taking notice of the reasons assigned by learned Trial Court for dismissing the suit. (Para 31) Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.:2023 STPL(Web) 132 HP

Code of Civil Procedure, 1908 – Order 6 Rule 15 of CPC – Verification of the pleadings – Person acquainted with the facts of the case – Plaintiff witness testimony clearly shows that he was not aware of the factual position and could not have been a person acquainted with the facts of the case. The person who signed the plaint did not appear in the Court to prove that he was acquainted with the facts of the case. Therefore, the compliance of Order 6 R. 15 was not satisfied in the present case. (Para 33) Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.:2023 STPL(Web) 132 HP

Constitution of India, Article 300 – Code of Civil Procedure, 1908 – Section 79, Order 27 Rule 1 – Suits by or against the Government– Who can file a plaint in the suit filed by or against the Government – Government of India or State Government have to sue or to be sued by the name of Union of India or by the name of the State. The pleadings have to be signed by any person authorized by the State or Union of India. – Held: In the present case PW-1 did not state that Central Government or BBMB had authorized him to file the present suit or agreed to ratify his acts. There is no other evidence that Central Government or BMMB had authorized Senior Executive Engineer, Additional Superintending Engineer or Superintending Engineer, BBMB to file the suit or ratify the acts done by them. Therefore the plaint was defective and the suit was not filed by a competent person in the name of the Union of India or BBBM. Suit not maintainable. (Para 36, 38, 39, 40, 47, 48) Sant Singh (Deceased) Through His Lrs Vs. Senior Executive Additional S.E. & Ors.:2023 STPL(Web) 132 HP

Criminal

Narcotic Drugs and Psychotropic Substances Act, Section 21, 50 – NDPS – Search – Appeal against conviction – Plea of non-compliance of section 50 for search – Held: Contraband found in bag search so section 50 not applicable – The search after arrest which is normally called Jama Talashi do not falls under NDPS Act. This in no way relates to the personal search of the appellant prior to his arrest. Seized quantity falls under commercial quantity – offence proved by evidence – Conviction upheld. (Para 16, 17, 20) Rameshwar Yadav Vs. State Of Himachal Pradesh : 2023 STPL(Web) 90 HP

NDPS – Commercial Quantity – It was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which would then be relevant for the purpose of determining psychotropic substance. (Para 21) Rameshwar Yadav Vs. State Of Himachal Pradesh : 2023 STPL(Web) 90 HP

Indian Penal Code, 1860 – Section 409, 467, 471 – Criminal breach of trust – Acquittal Valid – Appeal against acquittal – Documentary evidence that accused had deposited the money – FIR after 13 years –  Appeal fails in both on facts and law – Ingredients of offence not satisfied – Contradictions and omissions – Acquittal valid (Para 9 to 13) State Of Himachal Pradesh Vs. Daljeet Singh : 2023 STPL(Web) 100 HP

Narcotic Drugs and Psychotropic Substances Act – 1985 – Section 20 – NDPS – Vehicle recovered in personal search – Appeal against conviction – Appreciation of evidence – Major facts omitted in evidence by official witness – Registration number of vehicle, used by police not mentioned – Presence of senior officer on spot doubtful – NCB form under suspicion and not reliable – Independent witness do not support witness – Evidence against accused do not inspire confidence. Conviction set aside. (Para 36 to 70) Nand Lal Vs. State Of Himachal Pradesh : 2023 STPL(Web) 104 HP

Indian Penal Code, 1860 – Section 366A, 376D – Gang Rape – Consent – Gang rape by three on school going girl – Plea of consent – Held: When there is a plea of consent, in our considered view, act of enticing away and rape is admitted unequivocally. One cannot blow hot and cold at the same time. In a plea of consent, the admission of incident is there and the accused has to prove the consent to secure his/there acquittal.

In order to establish ‘consent’ on the part of the prosecutrix, it has to be established by the convict that she freely submitted herself while in free and unconstrained position of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non resistance and passing giving in cannot be deemed to be consent. Consent means active will in the mind of a person to permit the doing of the act and knowledge of what is to be done or of the nature of the act that is being done is essential to a consent to an act.

The court cannot be oblivious to the fact that even though the prosecution has not been able to prove that the prosecutrix was minor, yet it has been established on record that at the time of incident, she was student of 9th standard and her evidence is required to be proved in this background. This Court has no hesitation to hold that the prosecutrix has established beyond any reasonable doubt that she had been gang-raped by the appellants. Conviction upheld. (Para 54, 55, 56) Kuldeep Kumar & Anr. State Of H.P. & Anr. : 2023 STPL(Web) 108 HP

The Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Section 366A – Rape – Age of Prosecutrix – Evidence – Admission and withdrawal register, which goes to show that the prosecutrix had left the school after completion of her 5th class, so the document would be in a nature of transfer certificate and is thus not admissible in evidence even if it is assumed that the prosecutrix is a minor. Held: What stands established on record is that the prosecutrix cannot be termed to be a child or minor and therefore, the appellants and respondent No.2 could not have been charged and thereafter convicted and sentenced under Section 366A or Section 4 of the POCSO Act. Consequently, that part of the judgment is quashed and set aside. (Para 18, 22) Kuldeep Kumar & Anr. State Of H.P. & Anr. : 2023 STPL(Web) 108 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20, 29 – Bail – NDPS – There is no recovery from conscious possession of petitioner and there is no material on record to link her with contraband recovered  – Plea that link between co-accused and petitioner for her involvement in commission of offence is yet to be proved by prosecution and further that in absence of any link or recovery from petitioner, being a lady and taking note of period of detention undergone by her, she deserves to be enlarged on bail. Bail granted. (Para 10, 15, 16) Reeta Vs. State Of H.P. : 2023 STPL(Web) 111 HP

Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Section 342, 363, 506 – Rape – Consent – Minor – Appeal against conviction  – Plea that it is a case of consent – Plea rejected – Held: As per evidence girl was minor at time of incident – Her consent cannot be recognized in the eyes of law. In view of settled position of law, sexual relationship with minor is prohibited and the law clearly treats this to be an offence even if the same is based upon alleged consent of a minor. Moreover, we are of the considered view that when a plea of consent is raised, then the act of enticing away and rape is admitted unequivocally. Conviction upheld (Para 30, 31, 34, 41) Suraj Alias Thoia Alias Dumba Vs. State Of H.P. : 2023 STPL(Web) 114 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20, 41, 42 – NDPS – Search, Seizure and arrest by Gazetted officer – Plea of noncompliance of section 42 NDPS Act – Held: It is made clear that when the gazetted officer himself makes arrest, search and seizure, he acts under Section 41 and, therefore, it is not necessary to comply with Section 42 of the Act. Conviction Upheld. (Para 22, 23, 25)

As regards applicability of Section 42, the Second proviso of Section 42 of the Act authorizes the Officer to proceed to the spot and enter into the building for search and seizure of the articles if he has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender.  (Para 22)

Now, the moot question in the instant case is whether the compliance of provisions of Section 42 is at all necessary when the raid was conducted by the Gazetted Officer himself. (Para 23)

Hon’ble Supreme Court in Satrohan’s case (supra) held that Section 41(2) deals with two situations. One is relatable to gazetted officer while in the other case the gazetted officer may authorise his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates and, thus, it is made clear that when the gazetted officer himself makes arrest, search and seizure, he acts under Section 41 and, therefore, it is not necessary to comply with Section 42 of the Act. (Para 25) Rohtash Vs. State Of Himachal Pradesh : 2023 STPL(Web) 115 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20 – NDPS – Sentence – Total quantity of the mixture which includes the neutral substance, ought to be relevant for the purpose of sentencing. Imposing a sentence of two years’ rigorous imprisonment, only because the Chemical Examiner had found the sample to be containing 34.80% resin and that there was nothing in the report as to what the remaining residue was – Held: . The sentence as imposed by the learned Special Judge, relying upon certain judgments passed by this Court, which are no longer a good law in the light of the judgment rendered by the Hon’ble Supreme Court in the case of Hira Singh (supra), requires to be enhanced. Court to hear on quantum of sentence. (Para 8, 25, 26) State Of H.P. Vs. Ram Parkash : 2023 STPL(Web) 118 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20 – NDPS – Evidence by Police officials – The statements of official witnesses cannot be discarded purely on the ground that such witnesses are official witnesses. It is the intrinsic worth of the statement of the official witnesses which is to be tested on the touchstone of credibility and truthfulness, which will have been on the case of the prosecution. (Para 22) State Of H.P. Vs. Ram Parkash : 2023 STPL(Web) 118 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – NDPS – Search and Seizure – Plea of non-compliance of provisions for Personal search – Held: It is nowhere the case of the prosecution that the personal search of the accused had been conducted, rather it has specifically come in the statement of Sohan Singh (PW-7) in the cross-examination that no personal search of the respondent was conducted (Para 24) State Of H.P. Vs. Ram Parkash : 2023 STPL(Web) 118 HP

Contempt

Contempt – No wilful disobedience – Held: The respondents in compliance to the order had issued an office order. Its perusal reveals that it is a reasoned order. The observations made by this Court in the present proceedings are not adjudication on the merits of the office order. Nonetheless for disposal of this petition suffice it to hold that no case of wilful disobedience has been made out against the respondents. Contempt dismissed. (Para 15, 16) Kavita Kumari Vs. Abishek Jain & Others : 2023 STPL(Web) 93 HP

Compensation

Motor Vehicles Act, 1988 – Section 168, 169 – Code of Civil Procedure, 1908 – Order 9, Rule 4 – MACT – Second Petition – Maintainability of – Since none of the parties were present the order so passed by learned Tribunal was either under Rule 2 of Order 17 or Rule 4 of Order 9 of the Code of Civil Procedure. In either of the case the provisions of Order 9 of the Code would apply and the appropriate provision would be Rule 4 of Order 9 of the Code, according to which institution of fresh proceeding on the same cause of action is not barred, subject however to the condition of application of law of limitation. (Para 26) Veena Kumari & Ors. Vs. Jameel Ahmed Khairsar & Others : 2023 STPL(Web) 98 HP

Motor Vehicles Act, 1988 – Section – 166 – MACT – Limitation – Second petition after 13 years – Held: Plea that claim barred by limitation – Held: The claim petitions have to be considered in the light of the amended Section 166 of the Act of 1988. As there is no period of limitation now, all the claim petitions have to be decided on merits. Claim not barred by Limitation. (Para 30, 31) Veena Kumari & Ors. Vs. Jameel Ahmed Khairsar & Others : 2023 STPL(Web) 98 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Claim dismissed – Appeal against dismissal of claim – Held: Not only that claimants have failed to prove allegation of rash and negligent driving against respondent, they have even failed to prove the involvement of alleged offending vehicle in the accident and also the factum of such vehicle being driven by respondent. Once, there is no evidence against the respondents 1 and 2, the insurer inevitably gets absolved – Claim rightly dismissed. (Para 21) Veena Kumari & Ors. Vs. Jameel Ahmed Khairsar & Others : 2023 STPL(Web) 98 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Wrong disclosure of registration number of offending vehicle – Not fatal for claim – Held: Taking the judicial notice of the mental condition of the person, who has met with an accident, in which, the driver of the scooter, had expired and the said person also sustained injuries, wrong mentioning of PW-3, qua the make of the vehicle is inconsqeutntial. (Para 33, 40) Kamla Devi Vs. Roop Chand & Others : 2023 STPL(Web) 101 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Compensation – Age of deceased 21 years – Income taken as Rs 5000/- Per Month. 40% increase in future prospects – Bachelor so deduction of 50% – Multiplier used is 18, Funeral Expenses of Rs 15000/-. Loss of Estate Rs 15000/-. Parentage consortium Rs 40000/- Total Compensation of Rs Rs.8,26,000/- awarded. Insurer held liable to pay award. (Para 47 to 53) Kamla Devi Vs. Roop Chand & Others : 2023 STPL(Web) 101 HP

Motor Vehicle Act, 1968 – Section 173 – MACT – Gratuitous Passenger – Injury case – Appeal by insurer against award – Plea that insurance policy is the act policy, as such, the occupant of the vehicle was not covered under the policy – It covers only ‘third party’ and compulsory personal accident covered for the driver-cumowner. It has been limited to the extent of Rs.2,00,000/-. Plea accepted – Admittedly injured was Gratuitous Passenger – Insurer held not to pay award – Other respondents held to satisfy award. (Para 7, 14, 20) New India Assurance Company Vs. Shakuntla Devi And Others : 2023 STPL(Web) 102 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Wrong registration number – Dismissal of claim set aside – Informant about 70 years of age – But latter on actual registration number of vehicle comes in his knowledge in police investigation – Held: only difference between two numbers was of letters “D” and “B” which could easily be misunderstood by anyone more particularly a person at the age of appellant and when he was in trauma. Dismissal of claim set aside – Remand back to tribunal for deciding on merit.(Para 13, 21) Bakshish Singh Vs. Raj Kumar Alias Raju And Others: 2023 STPL(Web) 110 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Compensation enhanced – Death of Housewife – Tribunal granted only Rs 15000/-as compensation – According to the learned Tribunal, the petitioner could not adduce evidence to show that deceased was earning a sum of Rs. 3300/- per month and the petitioner was dependent on her. Appeal for enhancement.

Court to determine that whether the learned Tribunal has wrongly held that the deceased was not contributing/earning anything, during her lifetime? Held: Women are doing multifarious activities in the household. The gratuitous services rendered by women cannot be equated with money.

Value of service assessed three thousand per month. 1/3 deduction for personal expenses. Multiplier of 13 applied as deceased was 49 years old. General damages assessed as Rs 9500/-. Total of Rs. 3,21,500/- awarded as compensation – Appeal allowed. (Para 21, 25, 26, 31) Dilbag Singh Vs. Vipan Kumar & Others: 2023 STPL(Web) 130 HP

Motor Vehicles Act, 1988 – Section 173 – MACT – Compensation enhanced – Compensation not limited to claim – Future increase in income of 30% is correct – Multiplier of 14 used by tribunal correct – Loss of estate = Rs.15,000/- added, Funeral expenses = Rs.15,000/- added, Loss of consortium = Rs.1,20,000/- added. Compensation enhanced accordingly (Para 33 to 44) Indira Devi And Others Vs. Chandu Ram And Others: 2023 STPL(Web) 131 HP

Dishonour of Cheque

Negotiable Instrument Act, 1881 – Section 138, 147 – Dishonour of Cheque – Unilateral Prayer for Compounding – Complaint of dishonour of cheque resulted in conviction – Revision – Amount of compensation deposited – Non-appearance of respondent – Relying on Supreme Court Judgment in Meters and Instruments Private Limited and Another vs. Kanchan Mehta (2018) 1 SCC 560. Held: The complainant has not assailed the said order by filing the petition for enhancement of punishment/ compensation. In such a situation, once the order has been accepted by the respondent-complainant by not assailing the order by filing the appeal, then, the application under consideration is allowed, subject to deposit of Rs. 30,000/-, which the applicant, who is present in the Court, is ready to deposit today itself in the Registry of this Court. The said amount is ordered to be released to the complainant. Compounding allowed subject to deposit of 10% compounding fee, (Para 8 to 11) Ramesh Kumar Vs. Mohan Lal: 2023 STPL(Web) 125 HP

Environment Law

Environment Law – Deemed Sanction – Non consideration of case of petitioner on ground of National Green tribunal directions – NGT directions not have retrospective effect – Petitioner already have approved his project from other agencies – Time limit for approval of project expired – No communication of Rejection – Held: Project is deemed sanctioned. (Para 22, 25 to 28) Chander Kamal Baljee Vs. H.P. State Environment Impact Assessment Authority And Other :2023 STPL(Web) 99 HP

Eviction

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Civil Procedure – Additional Evidence – Not unable to produce – Plaintiff is seeking to produce on record copies of Jamabandi for the year 2010-11 and Misal Hakiat Bandobast for the year 1994-95. The record of the learned trial Court shows that the plaintiff had filed a copy of Misal Hakiat Bandobast Jadid for the year 1994-95, before the learned Trial Court; however, the same was not exhibited. Therefore, the document was not only available with the plaintiff/applicant but it was also filed before the learned Trial Court. Held: the condition that the applicant/plaintiff was unable to produce the document despite the exercise of due diligence is not satisfied. Additional evidence not allowed. (Para 19) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Civil Procedure – Additional Evidence – No change in Circumstances – Plaintiff is seeking to produce a copy of Jamabandi for the year 2010-11 for a period after the pronouncement of the judgment and decree by the Trial Court and First Appellate Court.

Held: It is not shown that the rights and liabilities have changed after the passing of the judgments and decrese passed by the learned Courts below; therefore, the document sought to be produced on record is not relevant for the adjudication of the dispute pending between the parties and the same cannot be taken on record. (Para 22, 24, 25) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Evidence not found to be perverse –  The learned Courts below concurrently held that the plaintiff had relied upon the gift deed, which was not produced the plaintiff asserted that the defendant had attorned in his favour. He never examined himself, therefore, an adverse inference has to be drawn that the version of the plaintiff regarding the attornment is not correct. Once, it is so held, the plaintiff cannot be held entitled to the possession and mesne profits and there is no infirmity in the findings recorded by the learned Courts below. Second appeal dismissed. (Para 32, 34) Baba Sarabojot Singh Bedi Vs. Sada Ram : 2023 STPL(Web) 107 HP

Service Law

Service Law – Promotion – Respondent not eligible as per rules – Promotion of respondent quashed – Direction to consider the case of the petitioner for promotion to the post of Forest Guard under 10% quota in case he, otherwise, is found qualified and having a claim on merit. (Para 13, 14, 16) Sh. Raj Kumar Vs. State Of H.P. And Ors. : 2023 STPL(Web) 91 HP

Service Law – Appointment under EWS Category – Challenge to – Plea that respondent not fall under EWS Category and so his appointment under this category not valid – Held: Petitioner was holding the asset in terms of Clause (3) of the instructions – He was earlier employed as Inspector in the department of Cooperation, Government of Himachal Pradesh – As per instructions a government employee do not fall under EWS Category – Appointment of respondent quashed – Further held that in case, the petitioner is found next in waiting panel and further in case such waiting panel is still subsisting, respondent university is directed to offer appointment to petitioner after due verification of her eligibility as EWS candidate strictly in accordance with the Rules and specifically in light of the observations made hereinabove. (Para 23, 29, 32) Rajiya Sultan Vs. H.P. University And Others : 2023 STPL(Web) 94 HP

Constitution of India, 1950 – Article 14, 16 – Service Law – Discrimination – Regularisation – 17 out of 14 categories regularised – Remaining three categories not regularised – Held: It is not in dispute that initially Board of Directors filled up 17 categorizes of posts on contract basis, but keeping in view uncertainty and insecurity in job, a collective proposal was sent to Board of Directors for regularisation all the 17 categories, but instead of taking a decision to regularize services of all the 17 categories, respondent Corporation decided to regularize only 13 categories, which decision of respondent Corporation is unreasonable, arbitrary, unjust and amounts to hostile discrimination, which is violative of Articles 14, 16 of Constitution of India. All the petitions at hand are allowed. Respondent Corporation is directed to regularize the services of all the petitioners from the dates, employees of other 14 categories were regularized with all consequential benefits, incidental thereto. (Para 30, 37, 38) Dr. Kewal Krishan And Others Vs. State Of Himachal Pradesh And Others : 2023 STPL(Web) 95 HP

Service Law – Compassionate appointment – Post as per qualification – Plea that in view of her educational qualifications, she deserved to be appointed on compassionate grounds against Class-III post – Plea after nine years of Compassionate appointment in Class IV – Held: Merely because the petitioner is highly qualified will not entitle her to claim Class-III post on compassionate grounds. Petitioner was appointed as Peon (Class-IV) on compassionate grounds way back on 02.07.2014. She had accepted such employment on Class-IV category at that time. Her services were also regularized by the respondents as Utility Worker (Class-IV) pursuant to office order dated 27.06.2020. Petitioner has throughout served as Class-IV employee without any demur or protest. Now, she cannot be heard to complain that she should have been appointed against Class-III post and not Class-IV in view of her possessing higher educational qualification. The object of appointment on compassionate grounds is to provide immediate succour to bereaved family. There cannot be an “endless compassion”. In the given facts, closed chapters cannot be re-opened. For all the aforesaid reasons, – No merit in the instant writ petition. The same is accordingly dismissed (Para 5) Sunita Verma Vs. H.P. Tourism Development Corporation Ltd.: 2023 STPL(Web) 96 HP

Service Law – Seniority – Dispute regarding private respondents kept senior from petitioners – Whether respondents 4 to 12 merely by virtue of appearance in examination before completion of 18 months training can be said to have completed the selection process in terms of Rule 15 of 2009 Rules?

Held: The respondents have not been able to place on record any material to justify the appearance of private respondents in examination in August 2015, when they had not yet completed the training. No such rule has been brought to the notice of the court under which the private respondents could be allowed to appear in examination before completion of training. Once, the private respondents were not eligible to appear in and qualify the Patwari examination for want of completion of requisite training period, their eligibility cannot be compared with that of the petitioners.

The petitioners and private respondents cannot be said to have achieved the requisite qualification at the same time. Said rule will come into play inter-se the candidates who had achieved the requisite qualification at the same time. Clearly, the petitioners had achieved such qualification prior in time than the private respondents and as such, they were entitled to be placed above the private respondents in seniority list. Petition allowed – Respondents are directed to recast and reframe the seniority list (Para 13, 16) Vicky And Others Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 105 HP

Service Law – Experience – Condition of five year experience for appointment as computer teacher – Challenge to – Held: I have found the classification made by the State to be reasonable. The object of the State is to provide computer education to the students in the schools run by the State. A special cadre of teachers has been created. The State is not unjustified in preempting only temporary or protem induction on the post of PGT (IP) in case the competition is thrown wide open throughout the country. it also cannot be said to be violating the right of equality in so far as it helps the State in achieving the objective of providing computer education to students in its schools. The selection’s shall only be from the candidates who fulfill all the requirements of R&P Rules. (Para 19, 20) Sh. Ravinder Kumar And Ors. Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 106 HP

Service Law – Transfer – Requisite pleading and proof which can establish the allegations of malafide – Except for self-proclaimed necessity of petitioner, there is no cogent material to warrant such assumption – No malafide proved – Transfer is an incidence of service – No fundamental nor legal right to remain posted at one place or the other  – No relief (Para 22, 23) Ganesh Dutt Thakur Vs. State Of H.P. & Ors. : 2023 STPL(Web) 109 HP

Service Law – Compassionate Appointment – Rejection of Application – Delay – Petitioner himself highly qualified – Financial benefits apart from pension already provided to family – Held: The father of the petitioner died in harness on 17.03.2004. The petitioner is a highly qualified person. He has obtained B.A. Degree in the year 2007 and degree of M.A. in Political Science in the year 2014. Almost 19 years have gone by from the date of death of his father. Appointment on compassionate grounds at this stage shall be against the spirit of policy and object of providing employment assistance on compassionate grounds. No interference in rejection of application for Compassionate Appointment. (Para 5) Arun Kumar Vs. State Of H.P. And Others: Arun Kumar Vs. State Of H.P. And Others 2023 STPL(Web) 116 HP

Service Law – Re-engagement – Rejection of – Petition against – Appointed as Lecturer under Students Welfare Fund as stop-gap arrangement – Her services were terminated on joining of regular hand. – Re-occurrence of vacancy does not create any right in favour of petitioner to re-engage her on the basis of previous temporary appointment. . In case any stop-gap arrangement is made by the College then it has to be made afresh by initiating the necessary process for that, and petitioner or anybody else shall have right to participate in the same for consideration of candidature as per prescribed eligibility and requirement. At the most, petitioner may be having right to be considered but in accordance with law but not a vested right over and against others who may be the seekers of job to the same post. No merit in petition – Dismissed. (Para 2) Pooja Naryal Vs. State Of H.P. & Others : 2023 STPL(Web) 117 HP

Service Law – Waiting List – Plea of the petitioner is that he should, being at serial No. 1 in the waiting list, be considered for appointment against other posts lying vacant in the department, which have been advertised subsequently to be filled up by initiating fresh process. Held: once the advertised posts are exhausted by joining of the selected candidates, the panel stands exhausted and there shall be no right of the persons in the waiting list with regard to the vacancies arising out subsequent thereto or which are not included in the advertisement. (Para 4, 5) Sh. Hem Raj Vs. State Of H.P. And Others: 2023 STPL(Web) 121 HP

Service Law – Seniority – From Contract Employment or from regularisation – Held: The initial appointment, even though made on temporary or ad-hoc basis, if had been made in terms of prevalent recruitment rules and after holding the due process of selection, the service rendered thereafter continuously till regularisation is liable for consideration for the purposes of seniority. (Para 19) Rakesh Kumar Sharma And Ors. Vs. State Of Himachal Pradesh And Ors.:2023 STPL(Web) 122 HP

Service Law – Qualification – Not holding requisite qualification on Cut of date – Not eligible for appointment – Selection and appointment quashed. (Para 18) Sandeep Kumar Vs. State Of H.P. : 2023 STPL(Web) 124 HP

Service Law – Arrears – Court decision for all – Held: Same is a decision, which touches upon a policy matter, scheme of regularization. Rakesh Kumar’s case is a judgment in rem with intention to give benefits to all similarly situated persons, whether they approached the Court or not. The same casts an obligation upon the authorities to themselves extend the benefits thereof to all similarly situated persons. There is no direction of the Court to restrict the consequential benefits, including monetary benefits, for three years prior to filing of the petition.

Where the Court has not restricted the benefits for specific period, any guidelines, instructions, circular etc issued by Department or executive decision of any other authority cannot restrict such benefit as it would amount to modification of order of Court by an authority having no jurisdiction to do so. Directed to grant all the consequential benefits on actual basis including salary, seniority, pay fixation pensionary benefits, if any, to the petitioner in terms of Rakesh Kumar’s case (Para 8, 9, 13, 15) Mohinder Singh Vs. State Of H.P. & Others: 2023 STPL(Web) 127 HP

Service Law – Pension – Delay in Payment – No justifiable reason to delay the payment of due and admissible amount to the petitioner. Interest – Held: The respondents are also directed to pay the balance of retirement dues alongwith amount of interest to the petitioner within six weeks from the date of this judgment. (Para 14) Dr. Vinay Patyal Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 128 HP

Service Law – Qualification – Appointment – Reserved category – Consideration for General Category – Condition that if no post is reserved for a particular reserved category falling under vertical reservation, then such a candidate can be considered against the General category, provided such candidates will have to fulfill the criteria i.e. age limit, experience, ‘qualification’ etc; which are applicable to the General category candidate. Held: The petitioner, who belongs to reserve category having availed a relaxation standard in clearing the State Eligibility Test, is required to be considered for reserved category only and is not entitled to be considered in the General category. (Para 9, 11) Thakru Ram Vs. State Of H.P & Anr.: 2023 STPL(Web) 129 HP

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