Appointments & TransfersNews

The President in exercise of the powers conferred by clause (1) of Article 217 of the Constitution of India appointed Justice Mukhtar Ahmad, Amar Singh Chauhan,  Shamsher Bahadur Singh,  Vinod Kumar Misra, Pramod Kumar Srivastava, Raghvendra Kumar, and Pratyush Kumar, Additional Judges of the Allahabad High Court, to be Judges of the Allahabad High Court with effect from the date they assume charge of their respective offices.

Ministry of Law and Justice

[Notification dt. 13th January, 2017]

Case BriefsHigh Courts

Allahabad High Court:  Dismissing an election petition with costs challenging the election of Mrs Sonia Gandhi to the Lok Sabha from Rae Bareily Constituency on May 16, 2014 and her entitlement to be registered as an Indian citizen, the Court held that grant of citizenship cannot be challenged at this belated stage. The Court also observed that the petition lacked in material facts and did not constitute a complete cause of action.

Mrs Gandhi’s election was challenged on the ground that she was not a citizen of India as the words “citizens of India” under Article 84 of the Constitution referred to those persons who were citizens by birth or descent and not those who had acquired citizenship by registration. Besides, appeal by various  religious leaders to vote for her on religious lines during the election campaign amounted to corrupt practice and rendered her election void under Section 100(1)(b) of the Representation of People Act, 1951. The petitioner also challenged Section 5(1)(c) of the Citizenship Act, 1955, Rule 4 of the Citizenship Rules, 1956 and Form III prescribed therein as unconstitutional.

The Bench of Tarun Agarwala, J. held that as long as the certificate of citizenship issued under Section 5 was not challenged as in the instant case, the presumption of the validity of the certificate continues to remain in existence in view of Section 114 of the Evidence Act. The Court will presume that the certificate was validly issued by the prescribed authority after satisfying itself that the said person was entitled for grant of registration in her favour. The Court observed that since the petitioner had admitted that the respondent was granted Indian citizenship on 30th April, 1983, coupled with the fact that there is no challenge by the petitioner to the acquisition of the citizenship upon the respondent, such plea cannot be looked into at this belated stage after three decades. Such registration is still continuing and has not been cancelled, withdrawn or annulled till date. So long as the order issued under Section 5(1)(c) of the Citizenship Act stands, Mrs Gandhi continues to remain a citizen of India.

As for the contention of indulging in corrupt practice, the Court observed that t is clear that the appeal to vote on the ground of religion must be the religion of that candidate. The appeal is to be made on the basis of the religion of the candidate for whom votes are solicited. There is no such assertion to this effect in the election petition. In fact the assertion is, that the appeal was to garner Muslim votes. Admittedly the respondent is not a Muslim. In order to constitute corrupt practice, it must be shown that the act was done during the election campaign between the date when the respondent became a candidate and the date of poll and that it was the act of the respondent or her agent or any other person with her consent to appeal to vote on the ground of her religion. As material facts are lacking, the Court found no cause of action arose on this issue. [Ramesh Singh v. Sonia Gandhi, 2016 SCC OnLine All 451, decided on  July 11, 2016]

Case BriefsHigh Courts

Allahabad High Court: In a matter where the applicant sought to recall an order whereby the petition was disposed of directing the court below to conclude the trial under Section 138 of the Negotiable Instruments Act, 1881,  the  Court refused to exercise it’s inherent power under Section 482 of Criminal Procedure Code, 1973.

The Court said that Section 362 of the Criminal Procedure Code is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is dis-entitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. It was further held that The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacation the judgement was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed.

It was further said that the effect that the criminal justice delivery system does not clothe the Court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the Statute itself after the pronouncement of the judgment. The inherent powers under Section 482 of the Criminal Procedure Code is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something that has been expressly barred under the Code.

The bench of Suneet Kumar J., also laid down 4 conditions when a Tribunal or a Court can review its earlier order:

  1. if the proceedings culminating into an order suffer from the inherent lack or jurisdiction and such lack of jurisdiction is patent.
  2. there exists a fraud or collusion in obtaining the judgment.
  3. there has been a mistake prejudicing a party, or
  4. a judgment was rendered in ignorance of the fact that a necessary party has not been serving at all or had died and the estate was not represented.

[V.K. Anand . State of U.P, 2016 SCC OnLine All 392, decided on 30.05.2016]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench comprising of Ajai Lamba and Ravindra Nath Mishra-II, JJ held that the  practice of taking witness in custody for recording statement under Section 164 CrPC is not contemplated under the Code of Criminal Procedure or any other law. The respondents were therefore held liable to pay a sum of 1,50,000 so as to compensate the petitioner for illegally confining her for the purpose of investigation.

In the present case, father of the Petitioner filed a Police Complaint under Section 363 and 366 of Penal Code stating that his daughter has been kidnapped by her boyfriend (Chhote Lal), though the same was being denied by the Petitioner (Seema Devi) and confession made by her that she married Chhote Lal willingly. It was alleged that the police took the petitioner Seema Devi and her husband Chhote Lal in custody/detention from their residence whereupon Chhote Lal was released from custody, however, detention of Seema Devi was maintained . Thus, the petitioner filed a writ of habeas corpus through her husband for her release from wrongful and illegal detention/confinement.

Hence, the Court ruled out that right to liberty of the petitioner has been violated by keeping her in confinement for 15 days and directed the Station House Officer and the Investigating officer to pay a sum of 1,50,000 to the petitioner as compensation. The bench directed the authorities not to confine witnesses for the purpose of investigation of a crime and added “confining is when a person is enclosed within bounds; limit or restrict; to prevent from leaving a place. Even if the movement of a person is limited or restricted to his own house, it would tantamount to his/her confinement”. [Smt. Seema Devi v. State of Uttar Pradesh; Habeas Corpus No. – 10006 of 2016; decided on 25.05.2016].

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition challenging the validity of the elections held to the Gram Panchayats in 80 villages included within the territorial limits of Yamuna Expressway Industrial Developmental Authority which was declared to be an ‘industrial township’ by the Governor of  State of Uttar Pradesh vide notification dated December 18, 2015, in exercise of powers under the proviso to clause (1) of Article 243-Q of the Constitution, the Court held that no gram panchayat shall be constituted for these villages covered under the notification till the next date of listing, in view of the prohibition under Section 12-A of the Uttar Pradesh Industrial Area Development Act, 1976.

The petitioner’s contention was that in view of Section 12-A, no gram panchayat can be constituted for these villages, as held by the Division Bench in Rakam Singh v. State of UP, Writ Petition (C) No. 9899 of 2015, that once an industrial area has been declared to be an industrial township, consequences as envisaged under the legislative prohibition i.e. Section 12-A would follow.

      “12-A. No panchayat for industrial township.– Notwithstanding anything contained to the contrary in any Uttar Pradesh Act, where an industrial development area or any part thereof is specified to be an industrial township under the proviso to clause (1) of Article 243-Q of the Constitution, such industrial development area or part thereof, if included in a panchayat area, shall, with effect from the date of notification made under the said proviso, stand excluded from such panchayat area and no panchayat shall be constituted for such industrial development area or part thereof under the United Provinces Panchayat Raj Act, 1947 or the Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961, as the case may be, and any panchyat constituted for such industrial development area or part thereof before the date of such notification shall cease to exist.”

The Court permitted the State Government to declare the result of the election, since the election schedule for these gram panchayats had been notified and voting had already taken place. [Suresh Chandra Sharma v. State of U.P., 2016 SCC OnLine All 334 , order dated May 30, 2016]

Case BriefsHigh Courts

Allahabad High Court: Coming down heavily on the State Government for not paying the GPF (General Pension Fund) amount for more than two decades to the petitioner who had retired in 1994,  the Bench of  Sudhir Agarwal and Shamsher Bahadur Singh, JJ. held that the amount of GPF is obviously the money which belongs to an employee and if a person is not paid his own money for more than two decades, there can be nothing more serious and harsh on the part of the respondents which is liable to be condemned in the strongest words. “It is like a person starving today is assured food to be provided  after a month or two by which time he may die of hunger or the food stuff itself may rot. If this is not unconstitutional then what else can be.

Observing that retiral dues is a fundamental right of a retired employee within the purview of Article 21 of the Constitution, the Court observed that the authorities continue to cause constant harassment to poor retired employees taking advantage of their helplessness, terming it “really unfortunate and shameful”. In a democratic system governed by rule of law, the government does not mean a lax government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man.

The Court  held that “In our system, the Constitution is supreme, but the real power vest in the people of India. The Constitution has been enacted ‘for the people, by the people and of the people’. A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee.” Expressing severe disapproval, the Court held that “withholding of pension and other retiral benefits of retired employees for years together is not only illegal and arbitrary but a sin if not an offence since no law has declared so. It is morally and socially obnoxious. It is also against the concept of social and economic justice which is one of the founding pillar of our Constitution”.

The Court critically observed that  “A system controlled by bureaucrats can create wrangles to device something which is formulated by policy-makers for the benefit of the citizen is writ large from this case. A beneficial scheme made for social welfare of old and retired employees, can be twisted by the system creating a nightmare to retired employees, as is quite evident. The constitutional obligation though pen down to reach the people but Executive, habitual of remaining static or move slow or no movement at all, can render such scheme quite ineffective and inoperative … The pain and torture faced by retired employee and his family, in such circumstances, can be easily visualised and felt but cannot be assessed in the same way only those who really suffer, know it. This pain and humiliation cannot be compensated in terms of money.”

On the aspect of award of interest on delayed payment, the Court observed that if retiral benefits are paid with extraordinary delay, the Court should award suitable interest which is compensatory in nature so as to cause some solace to the harassed employee. No government official should have the liberty of harassing a hopeless employee by withholding the lawful dues for a long time and thereafter to escape from any liability. Every authority howsoever high must always keep in mind that nobody is above law. It is also the constitutional duty of a court of law to pass suitable orders in such matters so that such illegal acts may not be repeated and serve as a lesson to everyone committing such unjust act.

Directing the State Government to ensure the payment of 10% GPF amount along with 12% compound interest to be computed after six months from the date of petitioner’s retirement till actual payment, the Court also imposed costs of Rs 50,000 on the respondents to be recovered from the officer/s concerned, found responsible for the lapse after due enquiry.  [Sant Lal v. Chief Audit Officer, 2015 SCC OnLine All 154, decided on May 18, 2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding a petition where a woman police constable was dismissed from service and deprived of all consequential benefits for marrying her co-constable, who was already married and for solemnising the marriage without seeking the prior permission of the department, the Bench of Mahesh Chandra Tripathi, J. held that the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner and the directed the respondents to reinstate her in service forthwith with all consequential benefits.

The husband was merely awarded censure entry, whereas the petitioner was found guilty by way of a departmental enquiry under Rule 29(2) of the U.P. Government Servant Conduct Rules, 1956 and awarded a harsh punishment of dismissal from service. The petitioner contended that she had no knowledge about the first marriage of  her husband and that he had a living wife and hence, had not committed any misconduct. The petitioner cited the case of Shravan Kumar Panday v. State of UP, (2010) 8 ADJ 243 wherein it was held that whoever violates the provisions of Rules 29(1) and (2) shall be awarded with minor penalty and awarding a punishment of dismissal is a major punishment which is against the spirit of Rule 29.

The respondent vehemently opposed the petition on the ground that as per the provisions of Rule 29 of the 1956 Rules, second marriage is impermissible and once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, no leniency is required in the matter.

The Court agreed with the petitioner’s contention that according to Section 17 of the Hindu Marriage Act, no marriage between two Hindus could be solemnised, if one of them has a husband or wife living and if such marriage is solemnised after the commencement of this Act, it would be null and void. The provisions of Sections 494 and 495 of the Penal Code, 1860 shall apply in such cases. Applying this law, the marriage of the petitioner was null and void under law and no punishment could be awarded against her under Rule 29 of the 1956 Rules. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner’s case cannot be dealt with under Rule 29 of the 1956 Rules.

The Court held that it will be open to the respondents to award any minor punishment against the petitioner,if they think proper in the facts and circumstances of the case, after affording her full opportunity of hearing. [Aneeta Yadav v. State of  U.P,  2016 SCC OnLine All 294, decided on 2 May 2016]

High Courts

Allahabad High Court : Deciding the matter relating to transfer of investigation, the Court said that in order to do complete justice the Courts are empowered to hand over the investigation to an independent agency like the C.B.I. if it so feels that the investigation by the police authorities is not in proper direction even when charge-sheet has been submitted .The Court also held that if the petitioner feels that some further investigation is required or some additional evidence is to be collected he/she is at liberty to file an application before the Magistrate concerned for further investigation through such agency as he/she may desire. Pooja Pal v. Union of India, Criminal Misc Writ Petition  No. – 6209 of 2006, decided on May 22nd, 2014

To read the full judgment, click here

High Courts

Allahabad High Court: While deciding a case where petitioner’s claim on a Class IV post in the GRP on compassionate ground was rejected by the authority concerned on the ground that the petitioner is the second wife of the deceased hence, she could not be given the status of his widow, the Court held that the concerned authority has not recorded this fact of petitioner being the second wife of the deceased in the impugned order and without specifically finding this fact, the order of the authority concerned would not be a speaking order and would be considered as arbitrary and illegal.  The Court further observed that in the absence of finding of fact, the application of law has no meaning as the law whether settled by the court of law or whether by the statute will be applicable only to the individual facts of the case. Smt Poonam Devi v. Union of India, Writ No. 22518 of 2014, decided on 6th of May, 2014

 To read the judgment, click here

Case BriefsHigh Courts

Allahabad High Court: While deciding a case relating to eviction of tenants who lived in the property of Petitioners which was regulated by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the division bench of Sunil Ambwani and Mohd. Tahir JJ. discussed on the issue of constitutional validity of the aforesaid Act which regulates the conditions of tenancy rent and restricts unreasonable eviction of tenants. The Court held that the absence of provisions of increase of rent periodically and above the agreed rent, the whole Act would not become ultra vires and also does not amount to deprive a person of his right to property which is a constitutional right.

The petitioners, in the present case, had referred to the case of this Court, Milap Chandra Jain v. State of U.P., 2001 (2) ARC 488, which declared section 3(k), 4(2), 5, 6, 8 and 9 of the Act as ultra vires on the ground that freezing of rent of the buildings has become arbitrary and unreasonable being violative of Article 14 and 39-A of the Constitution of India and were held as unconstitutional. Whereas the respondents on the other hand said that declaration of some provisions of the Act as unconstitutional does not make the entire law as ultra vires and highlighted the importance of the said Act as welfare legislation. The Court declared aforesaid mentioned Allahabad High Court decision as bad in law and suggested State Legislature to take into account needs of the society with fair representation of class of persons and appoint a commission to make appropriate recommendations for making amendments to the Act.  Neena Jain v. State of U.P., Civil Misc. Writ Petition no. 50870 of 2004, decided on April 4th of 2014


For the text of the judgment, click here