Himachal Pradesh Digest 1 to 15, September 2023
Nominal Index
Ajay Jaiswal Vs. Rajinder Sood And Others
2023 STPL(Web) 142 HP: Res judicata – Stay on Suit
Amar Chand Vs. State Of H.P. & Others
2023 STPL(Web) 153 HP: Service Law – Regularisation after eight years
Anya Thakur Vs. Himachal Pradesh State Electricity Board Ltd. And Others
2023 STPL(Web) 163 HP: Electrocution – Compensation
Aryamann Sharma And Other Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 154 HP: Education – Quota for bona fide Himachali students irrespective of their place of schooling
Bainsu(Deceased) Through His Lrs. Vs. Budhia & Others
2023 STPL(Web) 157 HP: Jurisdiction of Civil Court – Tenancy of agriculture land
Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.
2023 STPL(Web) 146 HP: Recovery Suit – Books entries without corroboration
Bhupinder Singh (Deceased) Through Lrs. Vs. Vikas Sudan
2023 STPL(Web) 164 HP: Additional Evidence by Tenant – Not allowed
Dev Raj And Another Vs. Amar Nath And Others
2023 STPL(Web) 137 HP: Civil Procedure – Setting aside of ex party decree
Deepak Kumar Vs. State Of Himachal Pradesh
2023 STPL(Web) 148 HP: Murder – Circumstantial Evidence
Shri Gopal Singh Thakur Vs. Smt. Sarla Devi
2023 STPL(Web) 145 HP: Arbitration – Award set aside
Sh. Himmat Singh Vs. Sh. Satish Kumar & Ors.
2023 STPL(Web) 141 HP: Land Revenue – Difference between Partition and Family arrangement
Jagdeep Singh Thakur Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 138 HP: Service Law – Seniority
Lajender Singh Pathania Vs. State Of H.P. & Others
2023 STPL(Web) 143 HP: Service Law – Promotion
Lekh Raj Vs. State Of Himachal Pradesh & Others
2023 STPL(Web) 156 HP: Service Law – Time barred appeal
Dr. Manmohan Tomar Vs. State Of Himachal Pradesh & Others
2023 STPL(Web) 149 HP: Service Law – Appointment
Mohinder Singh Vs. Gurbax Singh (Since Deceased) Through His Lrs.
2023 STPL(Web) 160 HP: Possession Suit – Principle of acquiescence
Mukesh Sahni Vs. Tejpal Singh
2023 STPL(Web) 158 HP: Contempt – Wilful disobedience
Nand Ram Vs. Naveen Dutt And Others
2023 STPL(Web) 144 HP: Civil Procedure – Amendment of Plaint
Neelam Singha Vs. J.B.S. Bawa
2023 STPL(Web) 136 HP: Eviction – Bonafide requirement
Neha Vs. State Of Himachal Pradesh And Another
2023 STPL(Web) 151 HP: POCSO – Case not made out – Kidnapping
Naveen Nischal Sood & Ors. Vs. State Of H.P. & Ors.
2023 STPL(Web) 167 HP: Service Law – Payment of Salary
Sh.Om Prakash Sood Vs. Sh.Dharam Chand & Others
2023 STPL(Web) 150 HP: Family Property – Injunction
Ram Lal Vs. State Of H.P. And Others
2023 STPL(Web) 162 HP: Service Law – Penalty
Dr. Ritu Rani Vs. State Of H.P. & Anr.
2023 STPL(Web) 139 HP: Service law – Incentive
Raghu Raj Shandil Vs. Sushant Shandil And Others
2023 STPL(Web) 165 HP: Rejection of Plaint – Cause of action
Sansar Chand Vs. State Of Himachal Pradesh
2023 STPL(Web) 147 HP: NDPS – Chain not complete
Sandeep Chauhan Vs. Om Prakash Chaudhary Through Lrs.
2023 STPL(Web) 159 HP: Transferee pendent lite – Have to obey decree
Smt. Sneh Lata Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 152 HP: Service Law – Counting of Contract Service Period for Regular Service
Sh. Suman Kumar Shukla Vs. State Of Himachal Pradesh & Another
2023 STPL(Web) 155 HP: Service Law – Promotion
Sushma Devi Vs. State Of H.P.
2023 STPL(Web) 134 HP: Service Law – Compassionate Employment
State Of H.P. Vs. Narender Kumar
2023 STPL(Web) 133 HP: Hurt – Acquittal upheld
State Of Himachal Pradesh Vs. Ved Prakash & Ors.
2023 STPL(Web) 135 HP: Rape – Victim deposition does not inspire confidence
State Of Himachal Pradesh Vs. Ramesh Kumar
2023 STPL(Web) 161 HP: Wrongfully concealing of kidnapped Person – Acquittal valid
State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others
2023 STPL(Web) 168 HP: Land Acquisition – Oral Consent
Smt. Tulsa Devi (Deceased) Through Her Lrs & Others Vs. Sh. Kamal Kant And Another
2023 STPL(Web) 140 HP: Revenue – Proof of Entry
Tilak Raj Vs. Rameshwari Devi (Since Deceased) Through Her Lrs & Others
2023 STPL(Web) 166 HP: Adverse possession – When not made out
Yash Pal Alias Sonu Vs. State Of Himachal Pradesh
2023 STPL(Web) 169 HP: NDPS – Conviction set aside
Subject Index
Arbitration
Arbitration and Conciliation officer, 1996 – Section 34 – Arbitration – Award set aside – Failure to exercise a jurisdiction vested – Held: Since the dispute regarding the enjoyment of the land was pending between the parties and one of the parties had sought partition of the land; therefore, the Arbitrator has the jurisdiction to hear the question of partition but he refused to do so by saying that the dispute was regarding the injunction and not regarding the partition. This was a failure to exercise a jurisdiction vested in the learned Arbitrator which amounts to a patent illegality. Thus, the award is liable to be set aside on this ground alone. (Para 35) Shri Gopal Singh Thakur Vs. Smt. Sarla Devi: 2023 STPL(Web) 145 HP
Civil
Himachal Pradesh Urban Rent Control Act, 1987 – Section 14(4) – Eviction – Bonafide requirement – Revision against eviction order – Held: There is no dispute with the proposition that the landlord is the best judge of his requirement, which in facts of a particular case may including the suitability also. It is evident from the record that though the landlord had received the possession of residential premises in the same building from Sh. Onkar Shad before the passing of eviction order by the learned Rent Controller, the said fact was not brought to the notice of learned Rent Controller and for such reason, the factum of landlord having received possession of another residential premises in the same building was not made the subject matter of consideration either to adjudge the bonafides of landlord or the suitability of the premises. The similar situation remained before the learned Appellate Authority.
It cannot be said that on suitability of a premises for personal bonafide requirement, the landlord has the last word. The question of suitability has to be decided by the Court on objective parameters when it is disputed. In the given facts and circumstances, when the learned Rent Controller had not been provided with the material to make a comparative assessment as to the alleged suitability of landlord, an important aspect of the matter has remained un-addressed and in absence of any adjudication on the issue, the right of tenant is likely to be prejudiced in all probabilities. The document placed on record along with said application and rejoinder filed with the application are taken on record as additional evidence.
The matter is remanded back to the learned Rent Controller to decide the petition afresh by considering the additional evidence, as taken on record. (Para 10 to 13) Neelam Singha Vs. J.B.S. Bawa: 2023 STPL(Web) 136 HP
Code of Civil Procedure, 1908 – Order 9 Rule 13 – Civil Procedure – Setting aside of ex party decree – Sufficient Cause – An ex parte decree can be set-aside if the person against whom such decree has been passed satisfies the Court that he was prevented by any ‘sufficient cause’ from appearing when the suit was called on for hearing. Defendant version not accepted by plaintiff and contested by it – Never informed the court that parties are trying for compromise – Not even appear before Mega Lok Adalat. No sufficient cause for non-appearance – Lower court order of setting aside ex party decree set aside (Para 11, 15, 24, 25) Dev Raj And Another Vs. Amar Nath And Others: 2023 STPL(Web) 137 HP
Indian Evidence Act, 1872 – Section 77 – Revenue – Proof of Entry – A duly certified copy of ‘Rapat Rojnamcha’ as maintained by the Patwari,who is public servent, in his official capacity, is per se admissible in evidence in view of Section 77 of the Evidence Act. Held: A perusal of this entry shows that the name of Kartara son of Rala was mentioned in it; hence, the entry was made in the presence of the person, who was likely to be affected by the change and there was compliance with the provisions of H.P. Land Record Manual. Learned First Appellate Court had rightly relied upon the same. (Para 33, 34) Smt. Tulsa Devi (Deceased) Through Her Lrs & Others Vs. Sh. Kamal Kant And Another : 2023 STPL(Web) 140 HP
Revenue – Applicability of Law – Plea that after the commencement of the H.P. Tenancy and Land Reforms Act, the change of entries in the Khasra Girdawari and subsequent entries in the jamabandi are illegal, null, void and without jurisdiction. Plea rejected – Held: H.P. Tenancy and Land Reforms Act came into force on 21.02.1974 when the Act was published in Rajpatra. H.P. Tenancy and Land Reforms Rules, 1975 came into force on 3.10.1975. However, the entry was change, the provisions of the Punjab Security of Land Tenures Act were applicable at that time. (Para 30) Smt. Tulsa Devi (Deceased) Through Her Lrs & Others Vs. Sh. Kamal Kant And Another : 2023 STPL(Web) 140 HP
H.P. Land Revenue Act, 1954 – Section 135 – Code of Civil Procedure, 1908 – Section 100 – Land Revenue – Difference between Partition and Family arrangement – Suit for injunction against structure on Joint Land – Trial Court dismissed suit on ground that admissions show that the defendants are in exclusive possession of the suit land. The defendants had carried out substantial construction material when the suit was filed. The remedy of the plaintiff was not to seek the injunction, but the partition.
The substantial questions of law proposed in the present case related to compliance with the provisions of Section 135 of the H.P. Land Revenue Act proceeds on the basis that a family arrangement and partition are similar to each other.
Held: There is a distinction between an arrangement vide which the co-sharers decide to cultivate the land separately and a formal partition in which the co-sharers divide the property by metes and bounds. A family arrangement has to be respected till the land is formally partitioned by metes and bounds as per law. Compliance with Section 135 of the H.P. Land Revenue Act will arise when a formal partition of severance of joint status is pleaded and not when a family arrangement is pleaded. The defendants themselves pleaded that they had approached learned AC 1st Grade for partition of the land, which shows that they had taken a plea regarding the family arrangement and not a formal partition. Thus, no question of the requirement of reporting the family arrangement will arise in the present case. The findings recorded by the learned Courts below are based on evidence and correct – Second appeal dismissed.(Para 7, 19, 22, 25) Sh. Himmat Singh Vs. Sh. Satish Kumar & Ors.: 2023 STPL(Web) 141 HP
Code of Civil Procedure, 1908 – Res judicata – Stay on Suit – Revision against stay on suit – . Admittedly in the aforesaid background, it cannot be denied that the issue raised by the plaintiff in subsequent suit, as detailed herein above, with regard to validity of Will dated 10.2.1975executed by Shakuntala Devi already stands adjudicated in previous suit, meaning thereby that the issue of Will raised in subsequent suit filed by plaintiff is/was directly and substantially in issue in previously instituted suit. Held: Continuance of subsequent suit would frustrate the provisions of S.10 CPC and thus, no illegality can be found with the order passed by learned court below, while staying subsequent suit. (Para 15)
“Whether mere involvement of one issue, which is identical in both the suits, can be said to be sufficient for the court to stay the subsequent suit, while exercising power under S.10 CPC?” (Para 16)
If a few issues are common rather would apply when entire subject matter is same, but when entire subject matter was directly and substantially in issue in earlier suit, subsequent suit cannot proceed and same is required to be stayed to prevent courts of concurrent jurisdiction from returning contradictory findings on same issue. (Para 19) Ajay Jaiswal Vs. Rajinder Sood And Others: 2023 STPL(Web) 142 HP
Code of Civil Procedure, 1908 – Order VI Rule 17 – Civil Procedure – Amendment of Plaint – Due Diligence – Amendment of pleadings cannot be allowed after the commencement of trial, unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before such commencement. The ground taken in the application is that during the pendency of suit plaintiff had acquired information under Right to Information Act and had come to know that defendants were minors on the date of execution of lease deed. The plea so raised lacks in better and material particulars as it has not been specified as to when such information was received. There is no material on record to suggest that despite due diligence the plaintiff could not have raised such plea before commencement of trial. It being so, rejection of amendment application cannot be faulted with. (Para 6, 8, 9) Nand Ram Vs. Naveen Dutt And Others: 2023 STPL(Web) 144 HP
Code of Civil Procedure, 1908 – Order 7, Rule 17 – Indian Evidence Act, 1872 – Section 34 – Recovery Suit – Books entries without corroboration – Held: Learned Courts below have relied upon the entries in the Books of Accounts to charge the defendant with liability, which is impermissible. The Books of Accounts were properly proved but there is no corroboration to the entries. Hence, the conclusions drawn by the learned Courts below that the defendant is liable to pay the amount shown in the Books of Accounts is perverse and could not have been drawn by any reasonable person Decree set aside – Suit dismissed.(Para 49) Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.: 2023 STPL(Web) 146 HP
Limitation – Burden of Proof – Since the plaintiff had pleaded that the suit was within limitation, in view of the part payment, therefore, the burden was upon the plaintiff to prove that the suit was within the limitation. (Para 15) Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.: 2023 STPL(Web) 146 HP
Code of Civil Procedure, 1908 – Order 7, Rule 6 – Limitation Act, 1963 – Section 19 – Limitation – Acknowledgement in writing – Required – Held: The Courts below did not notice the provisions of Section 19 of the Limitation Act and the requirement of the acknowledgement in writing and erred in relying upon the payment made by the defendant to extend the period of limitation without insisting upon the writing. (Para 25) Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.: 2023 STPL(Web) 146 HP
Limitation Act, 1963 – Article 1- Limitation – Mutual, Open and Current account – Applicability of – Plea of limitation under Article 1 of limitation Act on ground of “Mutual, Open and Current account” Plea Rejected- Held: Mutual open and current account defined in Article 1 of the Limitation Act, as a course of dealing where each party furnishes credit to the other on the reliance that on settlement of the accounts will be allowed so that one will reduce the balance due on the other. To be mutual, there must be transactions on each side creating independent obligations on the other and not merely transactions, which create obligations on the one side, those on the other being merely complete or partial discharges of such obligations. In the present case, the plaintiff was carrying out repairs and the defendant was making the payment. Therefore, there was no mutuality and Article 1 will not apply to the present case. (Para 26, 27) Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.: 2023 STPL(Web) 146 HP
Indian Evidence Act, 1872 – Section – 67 – Evidence – Perpetrator of Document – Entry in account book – Proof of – Examination of person who made entries – Recovery Suit – Held: In the present case, the truth of the entry regarding the payment could not have been proved without examining person, who had made such entries. Learned First Appellate Court erred in relying upon the entries, without getting these proved from the competent person. (Para 28 to 31) Smt. Bimla Devi Vs. M/S Bittam Garages Through Its Proprietor Sh. Shalender Gupta (Deceased) Through His Lrs.: 2023 STPL(Web) 146 HP
Family Property – Injunction – Suppression of facts – Mutual understanding – Putting up lock on the main entrance of joint property – Plaintiff has another way also – Main gate for entry of hotel customers. Hotel in joint property – Trial Court rejected petition for opening of main gate lock – Petition against in High Court – Suppression of facts of earlier criminal cases between both parties – Held: In the case at hand, there is enough material available on record suggestive of the fact that pursuant to mutual understanding parties are residing separately for more than three decades and one of the party has already filed suit for partition and as such arrangement, if any, pursuant to mutual settlement cannot be allowed to be disturbed without the consent of others, especially, till the date of decision in the partition proceedings. No illegality and infirmity in order passed by Court below.(Para 26) Sh.Om Prakash Sood Vs. Sh.Dharam Chand & Others: 2023 STPL(Web) 150 HP
H.P. Tenancy and Land Reforms Act, 1972 – Section 43 – Jurisdiction of Civil Court – Tenancy of agriculture land – Held: In the present case, there is no relationship of the landlord and the tenant and the dispute is between the two persons claiming themselves to be successors of the tenant. Such a suit is not cognizable by the Revenue Court and the jurisdiction of the Civil Court is not barred to hear and entertain such a suit. (Para 21,32) Bainsu(Deceased) Through His Lrs. Vs. Budhia & Others: 2023 STPL(Web) 157 HP
H.P. Tenancy and Land Reforms Act, 1972 – Section 45 – Tenancy – Succession to right of tenancy – A tenant could not have transferred a tenancy right by way of a Will and Section 45 of the Act puts a bar upon such transfer of the right of the tenant – Therefore, it is not permissible to bequeath the tenancy rights of a person (Para 22, 25) Bainsu(Deceased) Through His Lrs. Vs. Budhia & Others: 2023 STPL(Web) 157 HP
Transfer of Property Act, 1882 – Section 52, Code of Civil Procedure, 1908 – Order 22 Rule 10 – Transferee pendent lite – Have to obey decree – Decree of Possession – Appeal by defendant to whom premises was transferred during pendency of the suit – Held: Decree would bind the transferee with the decree passed in the suit. It can be seen that the appellant was a transferee pendent lite and this fact alone was sufficient to infer non-existence of any independent right in his favour especially in light of specific allegations of collusion interse the defendants in the suit. Appeal dismissed.(Para 5) Sandeep Chauhan Vs. Om Prakash Chaudhary Through Lrs.: 2023 STPL(Web) 159 HP
Possession Suit – Principle of acquiescence – Illegal Construction by defendant – The plea taken by the defendant that he had raised construction in the years 1987-88 in the presence of the plaintiff, his father and co-sharers has been abandoned by him by specifically saying that he has not constructed anything on Khasra No. 2282/1. Hence, the learned First Appellate Court erred in holding that the plaintiff had acquiesced in the construction of the defendant and was not entitled to the relief of the possession. Thus, the learned First Appellate Court erred in dismissing the appeal on the ground that the plaintiff was barred by the principle of acquiescence from filing the suit.(Para 18, 19) Mohinder Singh Vs. Gurbax Singh (Since Deceased) Through His Lrs.: 2023 STPL(Web) 160 HP
Possession Suit – By Co sharer – Plea that suit is bad for non-joinder of necessary parties – Plea rejected – Held: A suit by a co-sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein. (Para 21, 22) Mohinder Singh Vs. Gurbax Singh (Since Deceased) Through His Lrs.: 2023 STPL(Web) 160 HP
Possession Suit – Limitation – Adverse possession – Plea that the construction was raised in the year 1987 and the suit was filed in the year 2002; hence, the same was barred by limitation. Held:This plea cannot be accepted. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that a suit based on the title where a plea of adverse possession had not been raised could not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. (Para 23) Mohinder Singh Vs. Gurbax Singh (Since Deceased) Through His Lrs.: 2023 STPL(Web) 160 HP
Electrocution – Compensation – Disputed questions of facts – where disputed questions of facts are involved, proceedings under Art. 226 are not a proper remedy but once factum with regard to electrocution of the petitioner is not denied, coupled with the fact that the petitioner suffered permanent disability on account of electrocution, some compensation as interim measure enabling her to meet her day to day expenses and legal expenses, which she may have to incur, on account of proceedings for damages/compensation in competent court of law, can be granted in the proceedings filed under 226 of the Constitution of India. Interim Compensation of Rs five Lacs granted.(Para 14, 15) Anya Thakur Vs. Himachal Pradesh State Electricity Board Ltd. And Others: 2023 STPL(Web) 163 HP
Code of Civil Procedure, 1908 – Order VII, Rule 11 – Rejection of Plaint – Cause of action – Declaration suit that property is already portioned – Held: The plaintiffs did not disclose that their share had already been determined by the Court of competent jurisdiction and suit land was held to be still joint with liberty afforded to the parties to get it partitioned in terms of the decree passed by learned District Judge, Solan. Had they made such disclosure, no cause of action would have been made out even from the contents of the plaint to seek a decree of declaration regarding the existence of family partition of the suit land. No cause of action made out – Plaint rejected. (Para 22) Raghu Raj Shandil Vs. Sushant Shandil And Others: 2023 STPL(Web) 165 HP
Adverse possession – When not made out – Whether a party can be presumed to be in adverse possession when the parties to the suit are unaware as to the ownership of the land? Held: A person presuming that the land was owned by him cannot acquire the title by adverse possession over the land; hence, this substantial question of law is answered accordingly. (Para 11, 31) Tilak Raj Vs. Rameshwari Devi (Since Deceased) Through Her Lrs & Others: 2023 STPL(Web) 166 HP
Land Acquisition – Oral Consent – It is not permissible to use the land of the person without his consent and the consent has to be taken through an agreement in writing between that person and the competent authority. These directions are binding upon the State and it is not permissible for the State to say that it had taken the oral consent of the owner. (Para 16) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Delay and Latches – Continuous Cause of Action – Land used without acquisition – The cause of action in the present case is a continuing one since the appellant was compulsorily expropriated of her property without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. Therefore, the claim cannot be defeated on the grounds of delay and laches. (Para 21, 22) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Constitution of India – Article 300A – Right of Property – Statutory Right – Land used without acquisition – The right of property is a statutory right and no person can be deprived of the right to his property. Thus, a person deprived of his property unlawfully is entitled to the restoration of the possession or the payment of compensation and there is no infirmity in the judgments and decrees passed by the learned Courts below for payment of compensation or restoration of possession. (Para 25, 28) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Principle of Acquiescence – No Benefit from Principle – Plea that plaintiffs have acquiesced and were not entitled to the possession – Plea Rejected – Held: Acquiescence does not confer any title.(Para 40, 41) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Criminal
Indian Penal Code, 1860 – Section 34, 323, 325, 341 – Hurt – Acquittal upheld – The FIR does not contain any reason for the delay – The informant had sustained blood-stained injuries. His teeth were broken and any reasonable person would have taken the injured person to the hospital to provide first aid to him. The fact that the informant intended to visit the Police Station immediately shows that there was some urgency in the matter. Vijay Kumar has not explained why the informant was not taken to the Police Station or at least to the hospital. Thus, there is no satisfactory explanation for the delay. Sustained bloodstained injuries is not corroborated by the medical evidence. Informant earlier has apologise from accused mother for hurling abuses from her.
The informant was beaten by two accused with kicks and fist blows, he would have sustained some injuries on his person; however, the informant had only sustained injuries on his teeth. Even the injury on the chest was pain and tenderness, which is a subjective injury and not an objective one. Held: the learned trial Court had taken a reasonable view while doubting the prosecution case. Acquittal upheld. (Para 14, 21 to 25) State Of H.P. Vs. Narender Kumar : 2023 STPL(Web) 133 HP
Indian Penal Code, 1860 – Section 120B, 376D, and 506 – Rape – Victim deposition does not inspire confidence – Acquittal upheld – Delay of eight months in reporting to police – Medical report do no support prosecution – Contradictions and improvements – Held: When the victim makes not only a bald but vague statement where even the date of incident was not mentioned, then it creates a serious doubt about the story put-forth by the victim herself. She stated that all the respondents had committed sexual offence with her, but this seems to be unreliable as she had become unconscious and she was not knowing about the occurrence as per the version put-forth by herself.
We really fail to see any reason why the victim had not reported the matter to her family members or to the police immediately or at best within a reasonable time and why she waited for more than eight months to lodge FIR, that too, when she claimed that she came to know that her photographs/video have been uploaded on the Whatsapp. Meaning thereby, had the photographs of the victim not been uploaded on the Whatsapp, the victim would have not registered the FIR and kept mum.
The victim has stated before the Magistrate that the cold drink was offered to her in a dhaba at ‘B’ whereas in the Court she has stated that cold drink was offered to her on the road side and there is otherwise no mention of Dhaba
Not only is the case set up by prosecution suspect but even the contradiction, improvement and embellishments are so significant, which cannot be ignored. Moreso, the statement of the victim neither stood corroborated from medical evidence nor from any other material on record and even the story regarding uploading of photographs belies her claim.
There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing a rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out.
We are satisfied that the prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court committed no error in acquitting the accused/respondents. (Para 24, 25, 26, 28, 43, 44) State Of Himachal Pradesh Vs. Ved Prakash & Ors. :2023 STPL(Web) 135 HP
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 321 – NDPS – Chain not complete – Mystery that which property was produced in Trial Court – Possibility of tampering with the case property – Non-compliance of Section 52A – Held: in the instant case was never produced before the concerned Illaqua Magistrate for certification of inventory, as envisaged under Section 52-A of the NDPS Act – Serious doubt about veracity of the prosecution case – Conviction set aside (Para 30, 37, 40 to 43) Sansar Chand Vs. State Of Himachal Pradesh: 2023 STPL(Web) 147 HP
Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Section 106 – Murder – Circumstantial Evidence – Conviction upheld – Story of prosecution is absolutely consistent – Nothing adverse could be extracted from the material witnesses – Forensic report also favour prosecution in shape of blood grouping and DNA profiling report – Held: Additionally, we may observe that it is not the case of the appellant that he was not present in the quarter where the deceased was found to be lying dead or that he had not consumed liquor in the quarter. In such circumstances it was for him to offer an explanation how the deceased received injuries and in absence thereof it is a strong circumstance which indicates that he was responsible for commission of the crime, especially when an offence took place inside the four walls of house. Conviction Upheld. (Para 38, 39, 42, 44) Deepak Kumar Vs. State Of Himachal Pradesh: 2023 STPL(Web) 148 HP
Indian Penal Code, 1860 – Section 363, 366 – Protection of Children from Sexual Offences Act, 2012 – Sections 12 – POCSO – Case not made out – Kidnapping – Appeal against acquittal – Appreciation of evidence – Held: It would be evidently clear from the statement of the appellant herself that she was neither abducted nor kidnapped or enticed by respondent. Rather, statement of appellant recorded under Section 164 Cr.P.C. i.e. portions ‘A’ to ‘A’ and ‘B’ to B’. which have been admitted by her indicate that the appellant had accompanied respondent of her own free will and volition – No legally admissible evidence of Date of birth of victim.(Para 27)
When the appellant herself had not stated anything whereby the offences under Sections 363 and 366 of IPC could have been invoked and rather stated that she herself had given threatening to respondent No.2 that she would commit suicide in case he did not come to take her and further stated that respondent No.2 had committed nothing wrong with her. The filing of the challan itself in the Court was totally ill-advised (Para 55) Neha Vs. State Of Himachal Pradesh And Another: 2023 STPL(Web) 151 HP
POCSO – Non-obtaining of Documents related to date of birth – Birth register not available with panchayat – Date of birth ascertained from Parivar Register, which is not admissible in evidence – Held: Court has no hesitation to conclude that the respondents herein had put in their best efforts and procured all the necessary documents that were within their reach and tried to support the case of the prosecution.
Show cause notice to IO dropped (Para 55, 56) Neha Vs. State Of Himachal Pradesh And Another: 2023 STPL(Web) 151 HP
Indian Penal Code, 1860 – Section 368 – Wrongfully concealing of kidnapped Person – Acquittal valid – Appeal against acquittal – Appreciation of Evidence – Whether the respondent had wrongfully confined or concealed, the prosecutrix knowing that she had been kidnapped or abducted and thereby committed an offence punishable under Section 368 IPC – Held: In case the testimony of the prosecutrix is scrutinized, it would be noticed that the prosecutrix has nowhere stated that the respondent had wrongly confined or concealed her. As regarding the charge of kidnapping or abduction, it has already been observed above, that the prosecution had failed to prove its charge against coaccused resulting in acquittal which judgment otherwise has attained finality. It would further be noticed that the prosecutrix has specifically stated that she accompanied the co-accused (who have been acquitted) of her own volition. What is still more important is the fact that the prosecutrix has nowhere stated that the respondent has established physical relation with her. (Para14, 17) State Of Himachal Pradesh Vs. Ramesh Kumar: 2023 STPL(Web) 161 HP
Indian Penal Code, 1860 – Section 368 – Wrongfully concealing of kidnapped Person – Ingredients of offence – To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:
(1) The person in question has been kidnapped.
(2) The accused knew that the said person had been kidnapped.
(3) The accused having such knowledge, wrongfully conceals or confines the person concerned.” (Para 10) State Of Himachal Pradesh Vs. Ramesh Kumar: 2023 STPL(Web) 161 HP
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 15 – NDPS – Conviction set aside – Conviction set aside on following grounds – (i) Different seals on material seized and material produced before Magistrate under Section 52A (ii) Failure of prosecution in producing samples marked by magistrate as S1 to S7 (iii) Noncompliance of Section 42 of NDPS Act. No ground or reasons recorded for search without warrant, after sunset and before sunrise. Court also find it rather strange that why the Investigating Officer would send the information under Section 42(2) of the Act, when he had already received a secret information at 4:30 p.m. i.e. during the time when the sun had not set. (iv) The cowshed where the contraband was recovered was not proved to be in the exclusive and conscious possession of the appellant (v) Sealing of seized material at spot doubt full and not proved (vi) Presence of DSP on spot doubt full. Except one witness, none other states about presence of DSP on spot. No evidence by DSP in Court during trial (vii) Major condradictions in prosecution story. Conviction set aside. (Para 20, 21, 23, 24, 32, 35, 38, 44, 45) Yash Pal Alias Sonu Vs. State Of Himachal Pradesh: 2023 STPL(Web) 169 HP
Compensation
Electrocution – Compensation – Disputed questions of facts – where disputed questions of facts are involved, proceedings under Art. 226 are not a proper remedy but once factum with regard to electrocution of the petitioner is not denied, coupled with the fact that the petitioner suffered permanent disability on account of electrocution, some compensation as interim measure enabling her to meet her day to day expenses and legal expenses, which she may have to incur, on account of proceedings for damages/compensation in competent court of law, can be granted in the proceedings filed under 226 of the Constitution of India. Interim Compensation of Rs five Lacs granted.(Para 14, 15) Anya Thakur Vs. Himachal Pradesh State Electricity Board Ltd. And Others: 2023 STPL(Web) 163 HP
Contempt
Contempt of Court Act, 1971 – Section 2(b) – Contempt – Wilful disobedience – No wilful disobedience made out – No undertaking given – Held: A bare perusal of the order demonstrates that there was no direction etc. passed therein and all that the Court recorded in the order was that in view of a compromise having been entered into between the parties, the petition stood disposed of in terms of the Compromise Deed and a decree sheet was ordered to be drawn as per the Compromise Deed. The compromise, in terms whereof, the matter was disposed of by the parties was a voluntary compromise. There was no undertaking recorded by the Court or given by the parties to the Court with regard to adherence thereof, failing which, consequences such like contempt proceedings were to ensue. It cannot be said that there is wilful disobedience. Contempt dismissed. Dismissed (Para 5, 9, 10) Mukesh Sahni Vs. Tejpal Singh: 2023 STPL(Web) 158 HP
Education
Education – Quota for bona fide Himachali students irrespective of their place of schooling – MBBS/BDS Admission – Eligibility/Qualification Criteria – Quota for all the bona fide Himachali students or children of bona fide Himachalis, irrespective of their place of schooling – Challenge to – Prayer to continue the eligibility criteria for children of bona fide Himachalis who have passed at least two examinations out of major examinations from recognized schools/colleges situated in the State of Himachal Pradesh – Reasonable Classification – Policy decision – No arbitrary or irrational order – Not against any Statute or Constitution – (Para 48, 82, 102 to110)
No doubt, on account of inclusion of aforesaid category, competition amongst bona fide Himachali students would increase, but that cannot be a ground for this court to conclude that policy decision, whereby aforesaid change came to be effected is malafide, arbitrary and irrational, rather same appears not only to be reasonable and logical but can be said to have been effected to do justice to one category of students, who were denied benefit of availing State quota seats on account of theirs having not passed at least two examinations from schools situated in State of Himachal Pradesh, which in fact was not in their control on account of the fact that they were compelled to live outside the State of Himachal Pradesh because of employment of their parents. (Para 48)
There is nothing on record to conclude that the decision to effect change in the prospectus with regard to eligibility and qualification criteria, is malafide, unreasonable, arbitrary or irrational and as such, court, while exercising power of judicial review, cannot interfere with the same, especially when no material has been placed on record by learned counsel for the petitioners to demonstrate that the change in policy decision is against the statutes or Constitution. (Para 54)
By now it is well settled that Article 14 of the Constitution forbids class legislation but does not forbid reasonable classification. (Para 82)
In view of paucity of the employment in Himachal Pradesh, bona fide Himachali are compelled to take up jobs outside the State of Himachal Pradesh. It can also not be disputed that majority jobs are in IT sector, scope of which is negligible in the State and as such, it cannot be expected that bona fide Himachalis, who are residing outside the State of Himachal Pradesh have taken up job outside the State, of their own rather, due to paucity of Government/private jobs in the State. (Para 102)
The prospectus clearly reveals that a candidate seeking admission to Government/private medical colleges in the State, under State Quota is required to furnish an undertaking/affidavit (as provided in Appendix 15 of the prospectus), undertaking therein that he/she has not availed the State Quota in any other State and in case, such declaration is found to be incorrect/false, his/her candidature is liable to be rejected. (Para 108)
While balancing equities, it is the larger public interest, which is to be taken care of by the courts, as such, as weighed against the inconvenience and injustice, which shall be meted to the students, who have availed the benefit of change brought about by the respondent-State, the petitioners’ right is on a lower pedestal (Para 109) Aryamann Sharma And Other Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 154 HP
Eviction
Himachal Pradesh Urban Rent Control Act, 1987 – Section 14(4) – Eviction – Bonafide requirement – Revision against eviction order – Held: There is no dispute with the proposition that the landlord is the best judge of his requirement, which in facts of a particular case may including the suitability also. It is evident from the record that though the landlord had received the possession of residential premises in the same building from Sh. Onkar Shad before the passing of eviction order by the learned Rent Controller, the said fact was not brought to the notice of learned Rent Controller and for such reason, the factum of landlord having received possession of another residential premises in the same building was not made the subject matter of consideration either to adjudge the bonafides of landlord or the suitability of the premises. The similar situation remained before the learned Appellate Authority.
It cannot be said that on suitability of a premises for personal bonafide requirement, the landlord has the last word. The question of suitability has to be decided by the Court on objective parameters when it is disputed. In the given facts and circumstances, when the learned Rent Controller had not been provided with the material to make a comparative assessment as to the alleged suitability of landlord, an important aspect of the matter has remained un-addressed and in absence of any adjudication on the issue, the right of tenant is likely to be prejudiced in all probabilities. The document placed on record along with said application and rejoinder filed with the application are taken on record as additional evidence.
The matter is remanded back to the learned Rent Controller to decide the petition afresh by considering the additional evidence, as taken on record. (Para 10 to 13) Neelam Singha Vs. J.B.S. Bawa: 2023 STPL(Web) 136 HP
Code of Civil Procedure, 1908 – Order VIII, Rule 1A (3) – Additional Evidence by Tenant – Not allowed – Will related to Title and Rights of landlord – Petition against dismissal of application – Held: Law debars the tenant from denying landlord’s title to the property during the subsistence of tenancy.- order dismissing petitioner-tenant’s application under Order 8 Rule 1A(3) CPC moved at a much belated stage, that too for disputing the title and rights of respondent-landlord over the premises in question, suffers from no illegality or irregularity. (Para 4, 5) Bhupinder Singh (Deceased) Through Lrs. Vs. Vikas Sudan: 2023 STPL(Web) 164 HP
Land Acquisition
Land Acquisition – Oral Consent – It is not permissible to use the land of the person without his consent and the consent has to be taken through an agreement in writing between that person and the competent authority. These directions are binding upon the State and it is not permissible for the State to say that it had taken the oral consent of the owner. (Para 16) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Delay and Latches – Continuous Cause of Action – Land used without acquisition – The cause of action in the present case is a continuing one since the appellant was compulsorily expropriated of her property without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. Therefore, the claim cannot be defeated on the grounds of delay and laches. (Para 21, 22) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Constitution of India – Article 300A – Right of Property – Statutory Right – Land used without acquisition – The right of property is a statutory right and no person can be deprived of the right to his property. Thus, a person deprived of his property unlawfully is entitled to the restoration of the possession or the payment of compensation and there is no infirmity in the judgments and decrees passed by the learned Courts below for payment of compensation or restoration of possession. (Para 25, 28) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Principle of Acquiescence – No Benefit from Principle – Plea that plaintiffs have acquiesced and were not entitled to the possession – Plea Rejected – Held: Acquiescence does not confer any title.(Para 40, 41) State Of H.P. & Others Vs. Ram Lok (Since Deceased) Through His Lrs & Others: 2023 STPL(Web) 168 HP
Service Law
Service Law – Compassionate Employment – Policy – Rejection of application on ground that as per policy compassionate employment not available for Specific Post of petitioner father – Held: No such stipulation can be found in the policy. Rather if the dependents of a daily wager can be considered eligible for employment on compassionate grounds under the policy, then all the more reasons for considering the case of compassionate appointment of the legal heirs of a Primary Assistant Teacher, who had rendered continuous service of thirteen years in the State Government before meeting his death in harness. Competent authority is directed to consider the case of the petitioner afresh for employment on compassionate grounds in accordance with law. (Para 3, 4) Sushma Devi Vs. State Of H.P.: 2023 STPL(Web) 134 HP
Service Law – Seniority – The grievance of the petitioner is that his placement in the seniority list of Junior Engineers below the private respondents is bad in law – Held: The seniority position of petitioner has been rightly placed below the private respondents by taking into consideration the initial date of the appointment. (Para 2, 14) Jagdeep Singh Thakur Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 138 HP
Service law – Incentive – Grade Pay – Petition for incentive allowed to specialist doctor and Grade Pay – The first plea pertains to incentive of Rs.35,000/- per month and the second concerns the Grade Pay @ 150% over and above other allowances – First plea allowed as petitioner specialisation falls under notification regarding incentives – For second plea respondents are directed to examine and consider the case of the petitioner for grant of monthly Grade Pay @150% i.e. from due date in terms of observations made in para 4(b) above (Which is based on govt. latter) .(Para 4, 5) Dr. Ritu Rani Vs. State Of H.P. & Anr. : 2023 STPL(Web) 139 HP
Service Law – Promotion – Change in date of promotion – Earlier promoted from 2006 – Afterward change in order and promotion from 2010 – Non reasoned order – Held: When the order passed by an administrative authority had civil and evil consequences, it was bound to be supported by reasons. In absence of reasons, it cannot be assumed as to what had weighed with the authority while passing the order. The approach adopted by the administrative authority is against the basic tenets of law. It was incumbent upon the administrative authority to have taken into consideration the legal position vis-à-vis the right to promotion against the reserved post which in the instant case it appears to be totally missing. Order quashed and set aside – The respondents are directed to take a fresh decision on show cause notice after duly considering the reply of the petitioner to said notice and keeping in view the aforesaid observations.(Para 15) Lajender Singh Pathania Vs. State Of H.P. & Others: 2023 STPL(Web) 143 HP
Service Law – Appointment – Challenge to appointment – Delay – Non-joinder of necessary party – Held: We are not inclined to accept such plea as a participant, after participating in the process unsuccessfully, is not entitled to suggest the way of prescribing and bifurcating marks in the personality test, so as to suit him for his selection. (Para 5, 6, 7) Dr. Manmohan Tomar Vs. State Of Himachal Pradesh & Others: 2023 STPL(Web) 149 HP
Service Law – Counting of Contract Service Period for Regular Service – Direction to count service for pension also mandates calculation of pension by granting annual increment for relevant period either actual or notional basis. Direction to the respondents to count the service rendered on contract basis for annual increment and pensionary benefits. Further held that the actual consequential financial benefits shall, however be restricted to three years prior to filing of the writ petition. (Para 6, 8, 9) Smt. Sneh Lata Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 152 HP
Service Law – Regularisation after eight years – Rejecting the claim of the petitioner on the ground that Forest Department was not work-charged establishment – Held: It is now well settled that for conferment of work-charged status, work-charged establishment in the Department is not prerequisite. – Direction to extend benefits of Rakesh Kumar’s judgment to the petitioner by conferring work-charged status upon him on completion of 8 years of daily waged service with 240 days in each calendar year since 1994 with all consequential benefits. (Para 5, 7) Amar Chand Vs. State Of H.P. & Others: 2023 STPL(Web) 153 HP
Service Law – Promotion – Eligibility – Held: Petitioner had not put in three years of requisite service as Joint Controller (F&A) so as to render him eligible for being considered for promotion against the post of Controller (F&A) – This Court cannot issue any mandamus, directing the Department to make promotions in violation of the Recruitment & Promotion Rules. Petition dismissed. (Para 4, 7) Sh. Suman Kumar Shukla Vs. State Of Himachal Pradesh & Another: 2023 STPL(Web) 155 HP
Service Law – Time barred appeal – Penalty – Forfeiture of four increments with cumulative effect – Disciplinary authority order assailed after five years – Appeal time barred – Held: There is no cogent explanation given in the petition as to why the order passed by the Disciplinary Authority was not challenged by the petitioner either within the period of limitation or within some reasonable time thereafter. Petition dismissed.(Para 7) Lekh Raj Vs. State Of Himachal Pradesh & Others: 2023 STPL(Web) 156 HP
Service Law – Penalty – Writ against – Violation of Principal of natural justice – Charge not framed for alleged violation – Held: There was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report. petitioner guilty of misconduct on account of his alleged negligence in supervision and vigilance with respect to tearing of page of daily diary register (roznamcha) regarding which no charge was framed against the petitioner. Show cause notice quashed. (Para 4, 5) Ram Lal Vs. State Of H.P. And Others: 2023 STPL(Web) 162 HP
Service Law – Payment of Salary – College taken over by State government – All – Petitioners were employee of collage at the time of taken over of collage – No payment of salary for initial years by State government – Plea that the posts for the acquired college were created on subsequent dates resulting in the delayed appointments of petitioners – Plea rejected – Held: The government should have created the posts in advance before issuing the notification for taking over of the college. The petitioners cannot be blamed for the omission on the part of the State Government. Merely because the posts for the college were created on subsequent date cannot take away the rights of the petitioner for being considered or appointed on their respective posts from date of takeover. It being so, the petitioners are also entitled to the consequential benefits. Petition allowed.(Para 8, 13,16) Naveen Nischal Sood & Ors. Vs. State Of H.P. & Ors.: 2023 STPL(Web) 167 HP
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