EXERCISE NO.

1 p (Part 7) Aadhaar Card

Before adverting to the discussion on various issues that have been raised in these
petitions, it would be apposite to first understand the structure of the Aadhaar Act and how it
operates, having regard to various provisions contained therein. UIDAI was established in the
year 2009 by an administrative order i.e. by resolution of the Govt. of India vide notification
dated January 28, 2009. The object of the establishment of the said Authority was primarily to
lay down policies to implement the Unique Identification Scheme of the Government, by which
residents of India were to be provided unique identity number. The aim was to serve this as
proof of identity, which is unique in nature, as each individual will have only one identity with
no chance of duplication. Another objective was that this number could be used for
identification of beneficiaries for transfer of benefits, subsidies, services and other purposes.
This was the primary reason, viz. to ensure correct identification of targeted beneficiaries for
delivery of various subsidies, benefits, services, grants, wages and other social benefits
schemes which are funded from the Consolidated Fund of India. It was felt that the
identification of real and genuine beneficiaries had become a challenge for the Government. In
the Writ Petition No. 494 of 2012 & connected matters, it was becoming difficult to ensure that
the subsidies, benefits and services reach to intended beneficiaries. As per the Government,
failure to establish identity was proving to be major hindrance for the successful
implementation of the welfare programmes and it was hitting hard the marginalised section of
the society and, in particular, women, children, senior citizens, persons with disabilities,
migrant unskilled and organised workers, and nomadic tribes.

After the establishment of the Authority, vide the aforesaid notification, it started
enrolling the residents of this country under the UIS. These residents also started using
Aadhaar number allotted to them. It was found that over a period of time, the use of Aadhaar
number had increased manifold. This necessitated ensuring security of the information
contained in Aadhaar number as well as the information that generated as a result of the use
of Aadhaar numbers. It was thus felt desirable to back the system with a Parliamentary
enactment. As all these three kinds of welfare measures are sought to be extended to the
marginalised section of society, a collective reading thereof would show that the purpose is to
expand the coverage of all kinds of aid, support, utility or assistance which may be extended
with the support of the Consolidated Fund of India with the objective of targeted delivery. It is
also clear that various schemes which can be contemplated by the aforesaid provisions, relate
to vulnerable and weaker section of the society. Whether the social justice scheme would
involve a subsidy or a benefit or a service is merely a matter of the nature and extent of
assistance and would depend upon the economic capacity of the State. Even where the state
subsidizes in part, the objective of emancipation of the poor remains the goal. (WORDS 508)
 EXERCISE NO. 2 (Part 7) Rent control matter

The second contention of the appellant is that the court below has not considered
condonation of delay in payment of rent having regard to the decision in Ram Murti (supra). It
is his submission that the decision relied on by the High Court in Hem Chand (supra) has been
impliedly overruled in Sharad Sharma (supra). In Hem Chand (supra) this Court has held that
the Rent Controller has no discretion to extend the time for payment of rent under Section 15
(1) of the Act. However, in Ram Murti (supra) this Court after taking into consideration the
decision in Sharad Sharma (supra) has held that Rent Controller has power to condone the
default on the part of the tenant in making payment or deposit of the future rents. This
decision has application in a case where the tenant seeks condonation of delay in payment of
rents. It is relevant to notice here that the tenant is a willful defaulter of rents. He took a stand
before the Rent Controller that he had paid the entire arrears of rent. The Rent Controller
passed an order dated 07.02.2005 directing him to pay or deposit the rent at the rate of Rs.
500/- per month with effect from 1.10.2004 and continue to pay the same at the aforesaid
rate month by month. Admittedly, he has failed to pay the rent in terms of the said order.
After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010
under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that
he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The
Rent Controller directed the Nazir to submit a report for the purpose of consideration of
entitlement of the tenant to the benefit under Section 14(2) of the Act. The Nazir’s report
showed that the tenant had not paid the rent regularly in compliance with the order passed
under Section 15(1) of the Act. There was a long delay in deposit of rents. The condonation of
delay can take place only when the defaulting tenants so pleads with justifiable reasons which
would show that he was prevented from compliance by circumstances beyond his control. The
tenant has not offered any explanation for the delay in deposit of rents. As such, there is no
merit in this contention as the appellant claimed rent @ Rupees five hundred per month from
1st April, 2001 along with interest thereon by issuing a demand notice under Section 14(1)(a).
Therefore, we do not find any justification to interfere with the order of the High Court. In the
result, the appeal fails and it is accordingly dismissed. However, the appellant is granted three
months time from today to vacate and deliver vacant possession of the premises in question to
the respondent subject to filing of an undertaking before this Court to vacate the premises on
or before three months from today. The undertaking shall be filed within two weeks from
today. (WORDS 505)
 Exercise No. 3 (Part 7) Criminal Matter

The High Court first and foremost has to deal with the conviction appeal on its own
merits and once it comes to the conclusion that the trial court was right in imposing conviction,
then it has to delve into the aspect whether the punishment was proportionate or not. From
the finding of the High Court that the appellant is involved actively in committing the murder
and the findings with regard to conspiracy and particularly, in observing that as the State has
not preferred any appeal against acquittal it is not in a position to deal with the same, it
appears to us that the High Court in a prejudiced manner has enhanced the sentence. looking
at the entire reasoning of the High Court, I find that the findings of the trial court were not
disturbed and in fact were upheld by the High Court but it only differed with the sentencing
aspect. The reasoning given by the appellate court for enhancing the sentence and dismissing
the appeals can be a valid and correct reasoning for convicting the accused under Section 302
or 120B of IPC when the state has preferred an appeal against acquittal. But basing on such
reasoning the appellant cannot be convicted under Section 201 of I.P.C. The ingredients to
attract the offence under Section 201 of I.P.C are altogether different. Her mere silence cannot
give rise to a presumption that she has committed the offence. The appellate Court in the
normal circumstances will not interfere with such discretion but will interfere only when it finds
that there is miscarriage of justice, flagrant abuse of law.

In the instant case both the trial court and the appellate Court, failed to appreciate the
case in its proper perspective, relied more on assumptions and based on presumptions has
convicted the appellant, which is contrary to the settled law. In the light of the circumstances,
from the evidence on record, in my opinion it is clearly established that by making false
statement by appellant to her own brother PW-3 as to whereabouts of the deceased, and not
allowing PW-34 to use the bathroom attached to the bedroom where dead body was concealed,
the appellant has given false information to screen offender. As such, she was rightly held
guilty by the courts below in respect of charge of offence punishable under Section 201 IPC.
Some observations of the trial court against its own finding as to guilt of A-2 are not relevant
for the decision of this court, particularly when judgment of the trial court stands merged in
the judgment of the High Court which is impugned before us and, as such, the appellant
cannot be acquitted from the charge of offence punishable under Section 201 IPC IPC. I agree
with the principle of law laid down by this Court, but finally in each case the facts and evidence
of that particular case are to be seen to come to the conclusion as to whether the ingredients
of a particular offence have been made out or not. (WORDS 505)
 Exercise No. 4 (Part 7) Consumer-Arbitration Matter

Learned counsel for the appellant argued that the impugned orders are liable to be set
aside because the District Forums did not have the jurisdiction to entertain the complaints filed
by the respondents and the State and National Commissions committed grave error by
brushing aside the appellant's objections to the maintainability of the complaints. Learned
counsel emphasized that the Seeds Act is a special legislation enacted for regulating the quality
of seeds and if the respondents had any grievance about the quality of the seeds then the only
remedy available to them was to either file an application under Section 10 of the Seeds Act or
to approach the concerned Seed Inspectors for taking action under Section 19 read with
Section 21 of that Act. They further argued that even if the complaints filed by the respondents
under the Consumer are held to be maintainable, the finding recorded by the District Forums
that the seeds sold/supplied by the appellant were defective is liable to be set aside because
the procedure prescribed under Section 13(1)of the Consumer Act was not followed. Learned
counsel relied upon Section 8 of the Arbitration and Conciliation Act, 1996 and argued that in
view of the arbitration clause contained in the agreements entered between the appellant and
the growers, the latter could have applied for arbitration and the Consumer Forums should
have non-suited them in view of Section 8 of the Arbitration and Conciliation Act, 1996. An
ancillary argument made by the learned counsel is that the growers of seeds cannot be treated
as `consumer' within the meaning of Section 2(d) because they had purchased seeds for
commercial purpose.

Learned counsel for the respondents supported the impugned orders and argued that
the District Forums did not commit any illegality by entertaining the complaints filed under the
Consumer Act because the Seeds Act and the Rules framed thereunder do not contain any
provision for compensating a farmer whose crop is lost or who does not get the expected yield
if the seeds sold/supplied by the appellant are defective. Learned counsel submitted that the
remedy available under the Consumer Act is in addition to other remedies available to a
consumer and the complaints filed by the respondents under that Act cannot be held as barred
merely because they could also approach the Seed Inspector for taking action under Section 19
read with Section 21 of the Seeds Act. Learned counsel further argued that the growers of
seeds are covered by the definition of consumer because they had agreed to undertake
cultivation of seeds on behalf of the appellant for earning livelihood. On the issue of non
compliance of Section 13(1) of the Consumer Act, learned counsel submitted that the District
Forums had rightly relied upon the reports of the Court Commissioners and other evidence for
recording findings that the seeds sold/supplied by the appellant were defective. Learned
counsel emphasized that the respondents had used the entire quantity of seeds purchased by
them for sowing and they had not retained samples by anticipating loss of crop. (Words 507)
 Exercise No. 5 (Part 7) Criminal Matter

The motive for the accused in committing the murder of Padmini Devi is stated to be
theft of her gold ornaments. If the motive had been theft so as to snatch away the jewellery of
Padmini Devi, it is difficult to understand why the accused only took away the golden chain
around the neck of the deceased and the six bangles on her right arm and forsake the earrings
on the person of the deceased. It is relevant to mention, that the factum of the earrings found
on the person of the deceased has been explained in a wishy-washy manner. PW-21, Circle
Inspector of Police, has specifically deposed on the recovery, retention and return of the
earrings to the family of the deceased. The statement of PW-21 reveals a sorry state of affairs
in handling the investigation of the case in hand. According to the statement of PW-21, the
earrings were removed from the dead body of Padmini Devi by one of the policemen, who was
assisting him in the preparation of inquest report on 9.5.1998. There is no documentary record
of this that the earrings were retained by the writer at the police station. It was also deposed
by PW-21, that PW-2 Sriniwas had visited the police station to take back the earrings.
Accordingly, the earrings were returned to him. Coupled with the conclusion drawn by us in
respect of the gold chain and six gold bangles allegedly recovered at the instance of accused
Madhu and Sibi, we are of the view that it may well be that the ornaments were never taken
away from the person of the deceased Padmini Devi. This view comes to our mind because if
the motive had been theft of gold ornaments, then all the gold ornaments would have been
taken away, most certainly the earrings which were openly and clearly visible. This aspect of
the matter also creates a serious doubt in the prosecution case.

For the reasons recorded by us hereinabove, we are of the view that the evidence
produced by the prosecution does not, in any way, establish the guilt of the accused. The
prosecution had endeavoured to prove the allegations levelled against the accused on the basis
of circumstantial evidence. As noticed above, the mainstay of the prosecution evidence is the
recovery of the gold ornaments belonging to the deceased Padmini Devi at the instance of the
accused Madhu and Sibi. We have concluded that the statements made by the accused Madhu
and Sibi cannot be proved against the accused or to their detriment. This by itself removes the
most vital link in the chain of events sought to be established by the prosecution against the
accused. Evidence produced to establish the presence of the accused near the place of
occurrence or about the time of the commission of the crime has also been found to be
irrelevant. We have also found that the theft of the golden ornaments worn by the deceased
Padmini Devi was also doubtful. (WORDS 499)
 Exercise No. 6 (Part 7) Motor Accident-compensation

Against the award of the Tribunal, the appellant preferred an appeal before the Madhya
Pradesh High Court, Gwalior Bench. In the High Court, the case was referred to Lok Adalat
where the Insurance Company agreed for enhancement of the amount of compensation by Rs.
50,000/-. It, however, appears that the matter could not be settled in the Lok Adalat and the
appeal came to be finally heard and disposed of by the High Court on merits. The High Court
by its judgment and order dated April 1, 2009 simply raised the amount of the monthly income
of the appellant from Rs. 2,400/- to Rs. 3,000/- and thereby arrived at a sum of Rs.
1,98,000/- as compensation for the loss of future earnings. The total compensation amount
was thus raised from Rs. 2,03,400/- to Rs.2,58,000/-.

On hearing counsel for the parties and on going through the materials on record, we
are of the view that both the Tribunal and the High Court were in error in pegging down the
disability of the appellant to 50% with reference to Schedule-1 of the Workmen's
Compensation Act, 1923. In the context of loss of future earning, any physical disability
resulting from an accident has to be judged with reference to the nature of work being
performed by the person suffering the disability. This is the basic premise and once that is
grasped, it clearly follows that the same injury or loss may affect two different persons in
different ways. Take the case of a marginal farmer who does his cultivation work himself and
ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main
means of transport in hundreds of small towns all over the country. The loss of one of the legs
either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar
as their earning capacity is concerned. But in case of a person engaged in some kind of desk
work in an office, the loss of a leg may not have the same effect. The loss of a leg to anyone is
bound to have very traumatic effects on one's personal, family or social life but the loss of one
of the legs to a person working in the office would not interfere with his work/earning capacity
in the same degree.

The question of loss of earning capacity resulting from amputation of one leg in the
case of a tanker driver was considered by this Court in Kumar Janardhan vs. United India
Insurance Company Limited and another, (2008) 8 SCC 518. In that case, a tanker driver
suffered serious injuries in a motor accident and as a result, his right leg was amputated upto
the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The
Commissioner for Workmen's Compensation held that disability suffered by him as a result of
the loss of the leg was 100% and awarded compensation to him on that basis. (WORDS 498)
 Exercise No. 7 p (Part 7) Wakf/Waqf Board-Survey

The overall view of the aforementioned provisions contained in Wakf Act, 1954 and
Waqf Act 1995 make it evident that even under 1954 Act, the Survey Commissioners were
appointed for the purpose of making survey of wakfs in State. The Survey Commissioner was
duty bound to conduct the survey of wakfs in the State and after making such enquiry, as he
might consider necessary, would submit his report in respect of Wakfs existing in the State to
the State Government with necessary particulars. Copy of the said report would be forwarded
by the State to the Wakf Board which in turn would examine the report by applying its mind
and thereafter would publish the notification, whereas under 1995 Act, the Wakf Board after
examining the report forwards it back to Government within a period of 6 months for
publication in the Official Gazette in the State. Pursuant thereto, the State will publish the
Gazette notification. The revenue authorities will consequently include the list of wakf
properties while updating the revenue records.

Thus, it is amply clear that the conducting of survey by the Survey Commissioner and
preparing a report and forwarding the same to the State or the Wakf Board precedes the final
act of notifying such list in the official gazette by the State under 1995 Act. As mentioned
supra, the list would be prepared by the Survey Commissioner after making due enquiry and
after valid survey as well as after due application of mind. The enquiry contemplated under
sub-section (3) of Section 4 is not merely an informal enquiry but a formal enquiry to find out
at the grass root level as to whether the property is a Wakf Property or not. Thereafter the
Wakf Board will once again examine the list sent to it with due application of its mind and only
thereafter the same will be sent to Government for notifying the same in the Gazette. Since
the list is prepared and published in the official Gazette by following aforementioned
procedure, there is no scope for the plaintiff to get the matter reopened by generating some
sort of doubt about Survey Commissioner’s report. Since the surveyor’s report was required to
be considered by the State Government as well as Wakf Board as the case may be, prior to
finalisation of the list of properties to be published in the Official Gazette, it was not open for
the High Court to conclude that the Surveyor’s report will have to be reconsidered. On the
contrary Surveyor’s report merges with the Gazette Notification published under Section 5 of
the Wakf Act and as such, the property in question does not find place in the Gazette
notification published under Section 5 of the Wakf Act. If anybody including the Wakf Board or
the plaintiff was aggrieved by such non-inclusion of the property in the list notified, the
aggrieved person should have raised the dispute under Section 6 within a period of one year
from the date of publication of the Gazette notification in the matter. (WORDS 505)
 Exercise No. 8 (Part 7) Criminal Matter

The High Court in the impugned judgment has found fault with the aforesaid analysis,
approach and the manner in which the dying declaration has been dealt with by the trial court.
According to the High Court, the veracity of the dying declaration could not be examined with
reference to the other evidence. It has been held that the approach of the trial court was
blemished. According to the High Court, the trial court was required to appreciate as to
whether the statement of the deceased was given in a fit state of mind; and whether it was
voluntarily given without being influenced by any extraneous circumstances. If that was so and
the dying declaration of the deceased passed the muster of the aforesaid test and was to be
believed, the conviction could be based solely on such a dying declaration. The High Court then
examined the dying declaration in the aforesaid perspective and found that the Doctor had
declared her fit to make a statement on the basis of which the Judicial Magistrate recorded the
statement and even after recording of the statement, the Doctor again gave endorsement that
the deceased remained fit during the period her statement was recorded. In such
circumstances, statement of the Judicial Magistrate (PW-11) in the Court that he could not say
whether the deceased was semi-conscious when her statement was recorded, was of no
consequence as he had acted on the basis of the medical opinion.

We have duly appreciated the submissions advanced by counsel for the parties on both
sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial
court which had acquitted the appellants herein. The scope of interference in an appeal against
acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of
the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the
High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates
that such an appeal is not to be entertained except with the leave of the High Court. Thus,
before an appeal is entertained on merits, leave of the High Court is to be obtained which
means that normally judgment of acquittal of the trial court is attached a definite value which
is not to be ignored by the High Court. In other words, presumption of innocence in favour of
an accused gets further fortified or reinforced by an order of acquittal. At the same time, while
exercising its appellate power, the High Court is empowered to re-appreciate, review and
reconsider the evidence before it. However, this exercise is to be undertaken in order to come
to an independent conclusion and unless there are substantial and compelling reasons or very
strong reasons to differ from the findings of acquittal recorded by the trial court, the High
Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its
findings in case the findings recorded by the trial court are equally plausible. (WORDS 510)
 Exercise No. 9 p (Part 7) Selection-Post-Vacancy

The High Court has overlooked the distinction between “post” and “vacancy”. If the
requisite posts were already exhausted by direct recruits against the earmarked quota for
direct recruitment, merely because some vacancies occur, it would not be open to the aspiring
candidates against the direct recruit quota to challenge the selection process commenced for
the post of judicial officers by promotion through Limited Competitive Examination. The cadre
strength is always measured by the number of posts comprising the cadre. The right to be
considered for appointment can only be claimed in respect of a post in the given cadre. The
percentage of quota has to be worked out in relation to number of posts which form the cadre
and has no relevance to the vacancy that would occur. This aspect has been glossed over by
the High Court in the impugned judgment. Suffice it to observe that as no post for direct
recruits existed as on 30th April, 2008, the challenge to the selection process to fill up the
vacancy by promotion through Limited Competitive Examination at the instance of aspiring
candidates by direct recruitment cannot be countenanced. The Writ Petition filed by such
aspiring candidates, therefore, ought to have been dismissed by the High Court.

Having said this, it must follow that the selection process of 2008 which has been
completed pursuant to the liberty given by this Court by way of interim order is proper and has
become final. On this finding, the challenge in the companion writ petitions to the selection
process commenced for the year 2010 does not merit interference. In that, the vacancy
position as on the date of the notification i.e. 4th November, 2010 for commencing selection
process in 2010, were only upto 8 vacancies for appointment by direct recruitment from the
Bar. None of the writ petitioners before this Court claim to be within the first 8 merit list
candidates. The petitioners were placed at serial No. 9 onwards. The first 8 candidates having
been appointed, the selection process for 2010 would get exhausted and considered as
complete. Merely because the names of the writ petitioners appear in the selection list, they do
not acquire any indefeasible right in getting appointed. The vacancies have to be filled up in
conformity with the extant Regulations. The selection process in which the writ petitioners
participated, was commenced on the basis of the said notification for 8 notified vacancies and
appointments have been made from the meritorious candidates. That selection process must
be treated as having come to an end. The fact that the notifications for subsequent selection
process issued by the High Court notifying different or higher number of posts for direct
recruitment, can be of no avail to the selection process of 2010. That changed position is
ascribable to subsequent period on the basis of availability of posts for direct recruits.
Similarly, the fact that one candidate amongst the appointed eight candidates after due
selection subsequently resigned, no right can accrue to the writ petitioners on completion of
the selection process of 2010. (WORDS 509)
 Exercise No. 10 (Part 7) Admission-intake-candidate-counselling

Learned counsel for respondent No. 2, opposing the relief sought by the appellant,
submitted before the High Court that this Court in Mridul Dhar (supra) has held that time
schedule in respect of admission in postgraduate courses and super speciality courses should
be strictly adhered to wherever provided and that there should not be midstream admissions
and that admissions should not be in excess of sanctioned intake capacity or quota and
carrying forward of unfilled seats of one academic year to another is not permissible. Reliance
was also placed on the authority in Priya Gupta (supra) wherein it was directed that if anyone,
who fails to comply with the directions, shall be liable for action under the provisions of the
Contempt of Courts Act. It was further contended before the High Court by the respondent No.
2 that in terms of the interim order of this Court, all the seats were allotted to the respective
candidates and the admission process stood completed by 30.05.2016 and as regards unfilled
seats, only 11 seats were lying vacant on account of non-joining of the candidates and no
further steps could be taken on account of embargo put by the MCI with regard to the last date
for completion and the time frame could only be altered or modified by this Court. Considering
the rival submissions, the High Court accepted the submissions of the respondent and
dismissed the writ petition. Hence, the present appeal.

Per contra, learned counsel for the State submitted that the legal position with regard
to vacant seats after the cut-off date and extra round of counselling is settled in the decision of
this Court in Supreet Batra and others vs. Union of India and others, (2005) 9 SCC 575,
wherein it has been held that after the expiry of cut-off date, the seats lying vacant cannot be
filled up by way of conducting extra round of counselling. He further submitted that pursuant
to the order of the High Court quashing the policy decision of the State Government wherein
provisions were made for giving reservation in post graduate courses for the doctors of
Provincial Medical Services, who had worked continuously for three years in notified backward
areas within the State, State of U.P. had preferred special leave petition wherein this Court
vide order dated 12.05.2016 directed the State Government to re-vise and re-draw the merit
list and in pursuance of that order, State Government had re-drawn the merit list and fresh
counselling was held on 27.05.2016 and all the seats were filled up, except 71 seats which
remained vacant due to non-availability of the candidates for the said courses. Therefore, in
such circumstances, no further counselling was required. It is further submitted by the learned
counsel for the State that the seats became vacant after the cut-off date in different
Government Medical Colleges because after taking admission some of the candidates had
either resigned from the allotted seats or not joined the courses after admission. (494 WORD)
 Exercise No. 11 (Part 7) Bail Application

Shri R.K. Jain, learned Senior Counsel appearing for the respondent-accused countered
the above arguments addressed on behalf of the appellants by contending that right to liberty
was a fundamental right of a person under Article 21 of the Constitution of India and that right
could be curtailed only by a procedure known to law and if that procedure established by law is
not followed by the courts while refusing to grant bail, it is open to the aggrieved person to
challenge and re-challenge the same before an appropriate forum. He contended that since
principle of res-judicata or estoppel does not apply to criminal jurisprudence, there is no bar
for an accused person to make successive bail applications and re-urge the questions which
might have been urged earlier and negatived by the court. Therefore, it is open to a court
considering the grant of a fresh bail application to re-appreciate the material on record and
come to a different conclusion even though the same has been rendered by a superior court.
In other words the rule of finality does not apply to bail petitions. He further submitted that the
courts below while considering the evidentiary value of the retracted confession in the earlier
bail applications did not really appreciate the true legal position in law and as enunciated by
this Court in Hari Charan Kurmi vs. State of Birhar, AIR 1964 SC 1184, which had laid down
that a retracted confession is a weak type of evidence. The learned counsel argued that in the
present case apart from the retracted confession of one of the co-accused there is no
supporting or corroborative evidence available for the prosecution, hence it is crystal clear that
the prosecution has failed to establish a prima facie case. The learned counsel also contended
that the material available on record in this case against the first respondent is not even
sufficient for framing charges even though charge framed is not challenged.

Commenting on the order of this Court in the second of the cases (supra), he
contended that this court has not given a finding that there is a prima facie case against the
respondent-accused nor has it dealt with the question of the evidentiary value of the retracted
confession. Hence, the High Court was justified in going into these aspects of the case and
coming to the conclusion that the prosecution case does not establish a prima facie case
against the respondent accused. He also placed reliance on various judgments which were
cited before the High Court in support of his arguments. Learned counsel submitted that
existence of prima facie case is a sine-qua-non for refusal of bail and even if such a prima facie
case is existing still it is well open to the accused persons to seek bail on other grounds but if
there is no prima facie case made out from the prosecution material then the question of
looking into the other grounds for grant of bail does not arise since lack of prima facie case by
itself is sufficient to grant bail. (WORDS 510)
 Exercise No. 12 (Part 7) Admission-Students-Colleges-Sessions

It is a matter of anguish that despite various decisions of this Court and laying down of
time schedule for completion of admission process, the time schedule has not been adhered to
at various stages by various authorities resulting in otherwise avoidable discontentment and
hardship to the candidates. The observance of the time schedule is paramount for effective
utilization to All India Quota of medical and dental seats. The denial of a seat in college of
choice on the basis of one's merit position leads to frustration and results in injustice to the
young students. The admission to a professional course based on merit position is paramount
for the career of a student. The omission and commission in respect of admissions this year, as
is evident from orders aforenoted, adversely affected the career of meritorious students in
their not getting admission in the college of their choice. Any frustration and feeling of injustice
at an impressionable age at which the students compete in All India Competition is neither
desirable from the point of view of either the young students nor for country's future. We are
concerned with the career of those bright candidates who compete in a tough all India
competition. In this background, it is necessary to examine the acts of omission and
commission at various levels, the suggestions that have been made and submissions put forth,
to consider the issuance of directions for streamlining admissions from the next academic year
in MBBS/BDS courses. In Medical Council of India vs. Madhu Singh and others, (2002) 7 SCC
258], while making it clear that no admissions can be granted after the scheduled date, which
essentially should be the date for commencement of the course, MCI was directed to ensure
that the examining bodies fix a time schedule specifying the duration of the course, the date of
its commencement and the last date for admission. It was further directed that different
modalities for admission can be worked out and necessary steps like holding of examination if
prescribed, counseling and the like have to be completed within the specified time and no
variation of the schedule so far as admissions are concerned shall be allowed. In case of any
deviation by the institution concerned, action as prescribed shall be taken by MCI.

The Ministry of Health of Family Welfare, Government of India convened a meeting of

the State Health/Medical Education Secretaries and the Vice-Chancellors of the Universities of
health sciences and as a result of discussion issued a directive dated 14th May, 2003 to the
Secretaries of Health and Medical Education in all the States and Union Territories and to all
universities awarding medical/dental degrees laying down the policy guidelines on admission of
students and other allied matters, inter alia, having regard to the decision in Madhu Singh's
case (supra), laying down the schedule for completion of the various stages of admission
process, commencing of academic session and closure of admissions to be applicable to all
medical and dental colleges in the country from the academic session onwards. (WORDS 506)
 Exercise No. 13 (Part 7) Criminal Matter

A reading of the above non-speaking order would only show the total non- application
of mind by the Court to the gravity of the crime, the apprehension of tampering with the
evidence and threats to the life of the complainant and other witnesses given by the accused.
The High Court passed the impugned order in a mechanical fashion without proper application
of mind and without going into the merits and evidence on record against the accused persons.
The High Court failed to see and appreciate that the respondents herein who are the main
accused nos. 1 to 3 are the master minds behind the crime committed. The High Court has not
considered the material evidence available on record against the accused which prima facie
establish the criminal liability of the respondents. The High Court also failed to see that the
learned Sessions Judge after taking into consideration the seriousness and the gravity of the
crime convicted the accused for the crime. This apart, three other vital factors have also been
not taken note of by the High Court. They are the evidence of PWs 1, 2, 4 and 5 who are the
eye witnesses and whose testimony was amply corroborated with each other. Secondly, the
identity of the accused persons during the cross examination was also established. Thirdly, the
direct evidence of the eye witnesses was corroborated by the medical evidence and the motive
of the crime was also established. The trial Court has held that there is satisfactory evidence
that Digambar Mishra instigated to commit the murder and at that point of time and in
pursuance of that common intention of the accused they fired at the accused persons. The
High Court also has not taken into account the several complaints and information reports
before the trial and to the Police Authorities stating that the accused have killed his two sons
out of six, the three accused were arrested and remanded to jail and other accused are
absconding and evading their arrest and that one of the accused Digambar Mishra who is on
bail has confirmed the group of criminals and comes to the house of the appellant and gives
threatening to the eye witnesses of the said order in order to pressurize them not to pursue
the criminal case against them.

Learned counsel for the respondent submitted that respondent no. 1 had already
undergone 12 months of sentence and respondent no. 2 in Special Leave Petition No. 3316 of
2004 had already undergone 22 months of sentence and that the respondents have a
meritorious case in criminal appeal and accordingly, the High Court while admitting the appeal
have released the respondents on bail subject to certain conditions. It is further submitted that
subsequent to the grant of bail order, there is no instance on record that the respondents have
misused their release on bail and, therefore, there is no question of the respondents either
trying to interfere with the course of justice or the attempt to tamper with the evidence. (502)
 Exercise No. 14 p (Part 7) Criminal Matter

The High Court relied upon confessional statement recorded under Section 164 Cr.P.C
and found that the same was voluntary and had been made by the appellant without any
threat or fear and that it contained a full confession of crime and also disclosed the manner in
which the crime had been committed. The High Court also relied upon the report of the
Serologist Shri V.N. Mathur, who had stated in the chemical report that the seized articles
including bloodstained sword produced by the appellant and the clothes of the appellant were
stained with human blood of 'B' group, which tallied with the blood group with which the
clothes of the deceased persons were stained. The High Court treated this as sufficient
corroboration of the retracted confessional statement and further relying upon testimony of the
sister-in-law of the appellant PW-11 as well as other materials on the record, found that the
retracted confession of the appellant had received ample corroboration both from direct and
other circumstantial evidence and agreeing with the Sessions Judge, upheld the conviction of
the appellant for the offence under Section 302 I.P.C.

We have considered the retracted judicial confession of the appellant carefully and
analysed the statement of learned Judicial Magistrate Shri Tara Chand Soni PW-1. We have
referred to confessional statement in some details in earlier part of this judgment. We are
satisfied that learned Magistrate had taken all necessary precautions to ensure that the
appellant had sufficient time to reflect before he made his confessional statement and that he
was under no fear or threat or allurement before appearing in the court to make the
statement. The various questions put by learned Magistrate to the appellant indicate that he
had taken all reasonable precautions to remove any trace of fear from the appellant before he
made the confessional statement. The testimony of the sister-in-law of the appellant, Smt
Ratnabai PW-11 who was subjected to repeated and lengthy cross-examination in the trial
court has remained unshaken. Her statement has impressed us and in our opinion she had no
reason to falsely implicate the appellant with such a heinous offence. Jor Singh PW-12 and
Bhanwar Singh PW-13 have lent sufficient corroboration to her testimony as well as to the
confessional statement of the appellant. The only discrepancy pointed out with regard to
statement of PW-11 is that whereas in her statement under Section 161 Cr.P.C she had named
Hansabai as the child, but at the trial she had given the name of that child as Manraj. She
satisfactorily explained the discrepancy when the question was put to her and even otherwise
one cannot lose sight of the fact that the witness had seen the most gruesome type of murder
by her brother-in-law of his own wife and children. Therefore, this minor discrepancy of the
name of the child would pale into insignificance particularly when both Hansa and Manraj were
murdered by the appellant along with the others. (WORDS 490)
 Exercise No. 15 (Part 7) Court Martial Proceedings

The High Court was then impressed by contents of the letter dated 21st May, 2004,
wherein the respondent had asked for permission to engage a private counsel. The High Court
completely glossed over the plea taken by the appellants that this document (Annexure 24)
was not a part of the Court Martial Proceedings. Therefore, it cannot be made the basis to
grant any relief to the respondent much less to doubt the bona fides of the officials involved in
the conduct of Court Martial Proceeding. On the other hand, the record of Court Martial
Proceedings not only revealed that the respondent voluntarily admitted his guilt to both the
charges with full understanding and knowing the consequence therefor but in spite of
opportunity given to him to reconsider his stand, he did not change his confession. As a matter
of fact, reference to letter dated 21st May, 2004 has been made for the first time only in the
rejoinder affidavit filed by the respondent. No tangible explanation is forthcoming as to what
prevented the respondent from referring to this communication in the first place in the Court
Martial Proceedings or at least in the appeal preferred by him under Section 161 of the Act to
the Competent Authority.

Notably, such case was not made out even in the original writ petition for reasons best
known to the respondent. Obviously, taking that plea in the rejoinder affidavit for the first time
was with a view to confuse the issue so as to resile from the voluntary confession already
given in the Court Martial Proceedings. That cannot be countenanced and such a belated plea
ought not to be entertained by the High Court and that too in a casual manner and especially
when the appellants in further affidavit had mentioned the circumstances in support of the
assertion that the document relied by the respondent is a forged document. The respondent
was called upon to produce the original, which he never did. Neither the learned Single Judge
nor the Division Bench analysed the plea of the appellants in this behalf and yet granted relief
to the respondent by directing remand of the Court Martial Proceedings in spite of a finding
that the said document was not part of the Court Martial Proceedings that has resulted in
awarding premium to the respondent who had approached the Court with unclean hands and
to give opportunity to resile from the voluntary confession made by him, which fact was justly
recorded in the Court Martial Proceedings by the concerned officials whose integrity is
impeccable. The High Court should not have entertained the plea of the respondent that he
was pressurized to give confession in absence of disclosure of names of those officials and who
had no opportunity to counter the allegations made against them. Hence, this reason weighed
with the High Court must also fail. The last reason weighed with the High Court is also devoid
of substance. (WORDS 490)
 Exercise No. 16 (Part 7) Criminal Matter

There is a definite purpose in referring to the aforesaid authorities. We are absolutely

conscious about factual matrix in the said cases. The observations were made in the context
where examination-in-chief was deferred for quite a long time. Our reference to the said
authorities should not be construed to mean that Section 311 CrPC should not be allowed to
have its full play but the courts cannot ignore the factual score. Recalling of witnesses as
envisaged under the said statutory provision on the grounds that accused persons are in
custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill
and magnanimity commands fairness should be shown, we are inclined to think, are not
acceptable in the obtaining factual matrix. The decisions, which have used the words that the
court should be magnanimous, needless to give special emphasis, did not mean to convey
individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to
be applied on the basis of judicially established and accepted principles. The approach may be
liberal but that does not necessarily mean “the liberal approach” shall be the rule and all other
parameters shall become exceptions. Recall of some witnesses by the prosecution at one point
of time, can never be ground to entertain a petition by the defence though no acceptable
ground is made out. It is not an arithmetical distribution. This kind of reasoning can be
dangerous.

In the case at hand, the prosecution had examined all the witnesses. The statements of
all the accused persons had been recorded under Section 313 CrPC and the defence had
examined 15 witnesses. The foundation for recall does not even remotely make out a case that
such recalling is necessary for just decision of the case or to arrive at the truth. The singular
ground which prominently comes to surface is that the earlier counsel who was engaged by the
defence had not put some questions and failed to put some questions and give certain
suggestions. It has come on record that number of lawyers were engaged by the defence. The
accused persons had engaged counsel of their choice. In such a situation recalling of witnesses
indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility
of a retrial. There may be an occasion when such a ground may weigh with the court, but
definitely the instant case does not arouse the judicial conscience within the established norms
of Section 311 CrPC for exercise of such jurisdiction. It is noticeable that the High Court has
been persuaded by the submission that recalling of witnesses and their cross-examination
would not take much time and that apart, the cross-examination could be restricted to certain
aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate
that the witnesses have been sought to be recalled for further cross-examination to elicit
certain facts for establishing certain discrepancies. (WORDS 498)
 Exercise No. 17 (Part 7) Criminal Matter

In appeal, the High Court relied on the sole testimony of the above eye-witness and
brushed aside such serious omissions including not holding of test identification parade after
the child witness had named the three assailants before the police. The High Court relied on
dock identification stating that the child witness used to regularly visit his deceased
grandfather Mata Prasad with his mother and was knowing since before the incident accused
Bhagwan Singh living in the neighbourhood and other accused Sultan Singh and Laxman Singh
who were also of the same village. The relevant part of the reasoning of the High Court
contained in paragraphs 26 to 28, requires reproduction for considering whether the reasons
and conclusions contained in the judgment of the High Court are justified for reversing the
verdict of acquittal given by the trial Judge. It has been argued for the respondent accused
person that child witness Arvind was not taken immediately to police by his father Radhey
Shyam and it is further surprising that Radhey Shyam had asked no details about the incident
from any of his children. He has no knowledge as to when the police had recorded statement of
Arvind Kumar. It means that Arvind Kumar was not present on the spot, however, in our
opinion, Arvind Kumar aged bout six years, is the eldest child of deceased Munni Devi who
could depose something about the incident. Rest of his younger brothers are too small to know
about the incident and consequently, they were fast asleep at the time of incident.

It is usually expected that the small children will accompany their mother when the
mother is away from her husband and had gone to join her father deceased Mata Prasad. The
witnesses who had visited the spot soon after occurrence also confirmed the presence of the
children on the spot. Insofar as the children not being interrogated immediately by their father,
is due to the fact that the father was not much perturbed at the news of the incident and
immediately rushing to the spot and was helping police investigation there. It is further to be
noticed that he was also required to take care of the dead bodies to be sent for post mortem
and then to arrange for their funeral. All this made him so busy that it is expected from him to
divert his attention towards interrogating children who had been hurriedly left at his residence
in village Alampur. It is to be noticed that the children were found sleeping by the witnesses
who had reached the spot in the early morning and in the circumstances, everybody thought
that they may not be in knowledge of the incident. It is a mater of common knowledge that
children are always kept apart from the dead body when they loose their mother in such an
early age. If the children were kept away from the scene and were not immediately
interrogated by the witnesses of the police. (WORDS 495)
 Exercise No. 18 (Part 7) Criminal Matter

With regard to the judicial confession made by acquitted accused Pooran Singh to the
Judicial Magistrate, there are many striking features casting great doubt on the genuineness of
the extra judicial confession which was retracted in writing by accused Pooran Singh in the
course of his examination under Section 313 Cr.P.C. The accused Pooran Singh was also
arrested along with co-accused under arrest memo on 12.3.1984. His extra judicial confession
was recorded by the Judicial Magistrate (PW-1) on 9.4.1984 when he was produced handcuffed
before him in police custody. The fact that Pooran Singh was produced handcuffed in police
custody on 9.4.1984 has been admitted by the Judicial Magistrate as PW-1 in statement made
by him in cross-examination. If Pooran was in police custody in accordance with the
requirement of Section 164 Cr.P.C, the Magistrate should have taken care to ascertain that
there had been no third degree methods used by the police against him to extract a
confession. The Magistrate in deposition as PW-1 does say that he questioned accused Pooran
Singh and the latter confirmed that he was making a statement voluntarily without any
pressure. But the record of confession does not show that any specific questions were put to
accused Pooran Singh whether any physical or mental pressure was put on him by the
investigating agency.

The first precaution that a Judicial Magistrate is required to take is to prevent forcible
extraction of confession by the prosecuting agency. It has also held by this Court in the case of
Shiv Kumar vs. State of UP, 1995 (2) SCC 76 that the provisions of Section 164 Cr.P.C must
be complied with not only in form but in essence. Before proceeding to record the confessional
statement, a searching enquiry must be made from the accused as to the custody from which
he was produced and the treatment he had been receiving in such custody in order to ensure
that there is no scope for doubt of any sort of extraneous influence proceeding from a source
interested in the prosecution. It has also been held that the Magistrate in particular should ask
the accused as to why he wants to make a statement which surely shall go against his interest
in the trial. He should be granted sufficient time for reflection. He should also be assured of
protection from any sort of apprehended torture or pressure from police in case he declines to
make a confessional statement. Unfortunately, in this case the evidence of the Judicial
Magistrate (PW-1) does not show that any such precaution was taken before recording the
judicial confession. The confession is also not recorded in questions and answers form, which is
the manner indicated in the criminal court rules. The confession was retracted before the trial
Judge by the acquitted accused Pooran Singh on 28.7.1985 where he disclosed that he was
produced for judicial confession by telling him that he would be a prosecution witness as an
approver. (WORDS 495)
 Exercise No. 19 (Part 7) Criminal Matter

It was submitted by learned counsel appearing on behalf of the appellant that the High
Court has illegally reversed the judgment and order of conviction passed by the trial court.
Chain of circumstances is complete and proves the guilt to the hilt. Purchase of poison by the
accused stands established. It was in possession of the accused stands established. It is not
disputed that the deceased died due to poisoning. The accused had treated the victim with
utmost cruelty, kicking her in the womb when she was carrying 8 months’ child. Nature of
injuries found on deceased indicates that it was a case of forcible administering poison to the
victim while she has resisted. Accused in his statement under Section 313 Cr.P.C. has not
explained the injuries found on the person of the deceased. Dr. Chaudhary-PW-2 has stated
that he could not make full examination of the body considering the precarious condition of the
deceased, thus failed to mention all ante-mortem injuries found on the person of deceased.
The post mortem report which records all the ante-mortem injuries has been unnecessarily
doubted. It was not possible for the doctor to answer to the suggestions whether the victim
had consumed the poison herself, it was not for them to state so. What was relevant as to
their opinion they had stated that the nature of injuries indicated that she was administered
the poison forcibly. The conduct of the accused also indicates that he did not take the victim to
the hospital immediately and delayed it. He being a doctor knew the consequences of
poisoning and in spite of that he did not take the victim to the hospital despite requests being
made by various witnesses. The police had taken the victim to the hospital. On being enquired
by the eye-witnesses what has happened, victim had raised her hand pointedly towards the
accused as she was in a precarious condition.

On the other hand, learned counsel appearing on behalf of the respondent has
submitted that two views are possible in the case. The High Court has rightly given the benefit
to the accused. Injuries were caused to the deceased while she was having convulsions. The
witness Om Prakash PW-7 has stated that the deceased was trembling and her condition was
critical. No DNA test was conducted to prove that the nail scratches on the face of the
deceased were caused by the respondent-accused. There was no motive to administer poison;
that the accused was not in possession of the poison. Accused would not have purchased the
poison from a person known to him. He could have selected a better type of poison to kill his
wife. The accused has undergone the sentence for more than four years. The son left by the
deceased is now 17 years old and is being looked after by the accused. Thus this Court should
take a lenient view and no case for interference in the judgment passed by the High Court is
made out. (WORDS 498)
 Exercise No. 20 (Part 7) BSNL, TRAI, Call Drop

We now come to a very important part of the submissions made on behalf of the
appellants. The appellants have strongly contended that 2% allowance of call drops on the
basis of averaging call drops per month has been allowed to them by the Quality of Service
Regulations already referred to hereinabove. This would amount to the Authority penalizing the
service provider even when it complies with another regulation made under the same source of
power and for this reason alone, the Impugned Regulation must be held to be bad as being
manifestly arbitrary. The learned Attorney General refuted this submission in two ways. First,
he argued that Quality of Service Regulations and regulations made to benefit consumers must
be viewed separately, as they are distinct regulations in parallel streams. He also argued that
the 2% average allowance for call drops is different and distinct from paying compensation for
call drops inasmuch as, conceivably in a given set of facts, call drops may take place
extensively in a given sector but not in other sectors so that an average of 2% per month is
yet maintained, but the service provider would be penalized as it has not been able to maintain
a 3% standard laid down qua deficiency of service in individual towers leading to call drops.
However, the persons who suffer in the sector in which call drops are many and frequent would
then have no protection. We are afraid neither of these reasons avails the Authority. First and
foremost, the 2009 Quality of Service Regulation is made under Section 11 (1)(b)(v), which is
the very Section which is claimed to be the source of the Impugned Regulation. Secondly, both
regulations deal with the same subject matter, namely, call drops and both regulations are
made in the interest of the consumer.

In view of the aforesaid, it is clear that the Quality of Service Regulations and the
Consumer Regulations must be read together as part of a single scheme in order to test the
reasonableness thereof. The countervailing advantage to service providers by way of the
allowance of 2% average call drops per month, which has been granted under the 2009 Quality
of Service Regulations, could not have been ignored by the Impugned Regulation so as to
affect the fundamental rights of the appellants, and having been so ignored, would render the
Impugned Regulation manifestly arbitrary and unreasonable. We, therefore, hold that a strict
penal liability laid down on the erroneous basis that the fault is entirely with the service
provider is manifestly arbitrary and unreasonable and also, the payment of such penalty to a
consumer who may himself be at fault and which gives an unjustifiable windfall to such
consumer, is also manifestly arbitrary and unreasonable. In the circumstances, it is not
necessary to go into the appellants’ submissions that call drops take place because of four
reasons, three of which are not attributable to the fault of the service provider, which includes
sealing and shutting down towers by the authorities over upon they have no control. (509)
 Exercise No. 21 (Part 7) Criminal Matter Simple

While deciding whether to exercise its power under Section 482 of the Code or not,
timings of settlement play a crucial role. Those cases where the settlement is arrived at
immediately after the alleged commission of offence and the matter is still under investigation,
the High court may be liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at this stage the investigation is still
on and even the charge-sheet has not been filed. Likewise, those cases where the charge is
framed but the evidence is yet to start or the evidence is still at infancy stage, the High court
can show benevolence in exercising its powers favourably but after prima facie assessment of
the circumstances/material mentioned above. On the other hand, where the prosecution
evidence is almost complete or after the conclusion of the evidence the matter is at the stage
of argument, normally the High Court should refrain from exercising its power under Section
482 of the Code, as in such cases the trial court would be in a position to decide the case
finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC
is committed or not. Similarly, in those cases where the conviction is already recorded by the
trial court and the matter is at the appellate stage before the High Court, mere compromise
between the parties would not be a ground to accept the same resulting in acquittal of the
offender who has already been convicted by the trial court. Here charge is proved under
Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is
no question of sparing a convict found guilty of such a crime.

It is not possible for us to accept the submissions advanced at the hands of the learned
counsel for respondent nos.1 to 3 on the basis of the observations extracted hereinabove. In
the above judgment, this Court was of the view that it would be open to the High Court to
examine as to whether there was material to substantiate the charge under Section 307 of the
Indian Penal Code and also to determine whether the prosecution had collected sufficient
evidence to substantiate the said charge and in case sufficient evidence to sustain the charges
did not emerge, it would be open to the High Court to quash the proceedings. We are of the
view that the instant judgment had no relevance to the facts and circumstances of this case.
Herein, the investigation has been completed and the final report was filed before the Chief
Judicial Magistrate. It is not the case of the accused that the final report does not contain
adequate material to substantiate the charges. It is their contention that the charges are
clearly made out on the basis of documentary evidence. We would say no more but that the
inferences are those of the appellants and not ours. The eventual outcome would emerge from
the evidence produced before the trial court. (WORDS 509)
 Exercise No. 22 (Part 7) Education-Correction of Name/DOB

While making any correction in the entries relating to these matters, the requirement
of moving the application within three years has to be adhered to as any correction in regard
to these entries would have an impact on the rights of other candidates when they seek
admission to higher classes or employment. However, the other particulars contained in the
certificate, like the name of the candidate or the names of the parents of the candidate are not
that relevant and any correction made in regard to these particulars would have no impact on
the admission or employment of other candidates. When so considered, we feel persuaded to
hold that the time limit of three years prescribed in the substantive part of Regulation 7 for
submission of an application for making correction in the certificate issued by the Board in
regard to the name of the candidate or the names of the parents of the candidate should not
be insisted upon, particularly when the Board itself has considered it appropriate to have no
time limit under the proviso for making correction in regard to any spelling mistake in the
name of the candidate or his parents. The applicant must, however, explain to the Board the
reasons on the basis of which the application could not be submitted earlier and if it is found
that the claim is bona fide and is otherwise justified, there is no reason to reject the
application, as in the present case, merely on the ground of delay. Undoubtedly, the Board has
to examine whether any genuine ground has been made out for correcting the name and it
would be open to the Board to consider all the relevant materials pertaining to the request for
correction of the name.

In the circumstances, we are of the view that the impugned order of the first
respondent, rejecting the application submitted by the appellant for correction of the name of
his mother in the High School and Intermediate examinations only on the ground of delay, is
unsustainable. We, accordingly, direct the first respondent to re-consider the application
having due regard to all the documentary evidence which may be produced by the appellant.
The first respondent would also be at liberty to summon all the relevant records from the
concerned Institution for the purpose of deciding the application of the appellant. We clarify
that the interpretation which we have placed in the aforesaid terms governs only the mistakes
in the certificate in the name of the candidate or in the names of his parents. The first
respondent shall now pass a fresh order in accordance with law within a period of four months
from the date of receipt of a certified copy of this order. In order to facilitate this exercise, the
impugned order dated 11 October 2013 is set aside. The order of the learned Single Judge
shall, in consequence, be set aside and be substituted by the aforesaid directions. The appeal
is accordingly allowed to the extent indicated above. (WORDS 501)
 Exercise No. 23 (Part 7) GPF Scam Gzd

It appears undisputed that most of the employees in whose favour the sanction orders
were passed were fictitious persons and were not employees of the civil court Ghaziabad.
Other set of fictitious sanctions was that class III employees had been shown in the category
of class IV employees and applications had been processed and sanction orders had been
passed by the sanctioning authorities and, thereafter, the Drawing and Disbursing Officers had
processed the records and finally withdrawn the amount. It is also available from the records
as also from the impugned order passed by the learned Special Judge that in cases of most of
the employees, who were real employees of the civil courts, Ghaziabad, they had nil account
as regards their General Provident Fund deposit and in spite of that, fictitious applications were
processed by Ashutosh Asthana or the petitioner, like, Narendra Kumar, an Assistant in civil
court, Ghaziabad, and the District Judges except Ravindra Nath Mishra had sanctioned the
amounts and, on that basis, the respective Drawing and Disbursing Officers had withdrawn the
amounts. The Treasury Officers also appeared in league with the employees or the District
Judges and the Drawing and Disbursing Officers because the record reveals that there was one
bill, which had been processed even without there being any signature or sanction order, and
the payment had been made by the Treasury Officer on that bill also.

The case of Ravindra Nath Mishra might be that neither he had delegated powers nor
he himself had sanctioned any amount and further neither he received any pecuniary or other
benefits or part of the cash. However, the learned Trial Judge has recorded in paragraph 70 of
the impugned order that the withdrawal of an amount of Rs.28.54 lacs was made during his
administrative tenure and, within the period, he was the administrative head of the department
and while making annual inspection of administrative and accounts offices of the judgeship, he
had recorded in paragraph 27(e) of his Inspection Note that he found that the deductions from
the salaries of the employees for being credited to their respective accounts, were being
regularly made with a few exceptions and he further issued a direction that the account should
be updated and closed. As regards the G.P.F. advance to different employees, he was taking a
plea that he did not have any knowledge nor he had sanctioned any amount being the head of
the department, but during his inspection, he had seen relevant records and, in spite of that,
he did not raise any eye-brows. He was the head of the department and he had, during that
inspection, perused the relevant records, registers, bills, etc. and ignored the fraudulent
withdrawals or fraudulent processing of the applications only because he was fully aware of the
whole transaction of defrauding the exchequer, which appears more prominent against him as
applications in his tenure were also from those outsiders who were not the employees of the
civil court. (WORDS 495)
 Exercise No. 24 (Part 7) TP Act-plaintiff-defendant

On both issues noted above, the Trial Court has recorded findings in affirmative but in
respect of issue no.3 it has been further held that there was a breach of contract on the part of
the defendant. The Trial Court has made a detailed discussion while recording the findings as
indicated above and came to a conclusion that once the plaintiff had performed his part of the
contract and altered his position, namely, having constructed the plinth according to
specification of defendant, on a condition given out by the defendant that on completion of the
construction they would hire the premises for a period of three years, the defendant could not
later on back out from such a promise. It has been noted, and rightly so, that in the tender
notice as well as in the correspondence it had been clearly given out time and again that the
defendant would utilize the plinths constructed by the plaintiff for a period of three years. As a
matter of fact, on completion of the construction the defendant did occupy the plinth and had
been paying rent as agreed but terminated the tenancy by serving a notice of 15 days' as per
the provisions of Section 106 of the Transfer of Property Act and vacated the premises on
10.10.1988. In connection with this point it may be worthwhile to notice that the defendant
itself had admittedly written a letter dated 16.10.1986 to the United Commercial Bank
mentioning therein that the lease was a period of three years and the rent payable to the
plaintiff would be directly remitted to the bank as against the loan advanced to the plaintiff.
Learned counsel for the respondent has also taken us through the correspondence showing
that there was an arrangement for deposit of the amount of rent by the defendant in the bank
to adjust the loan taken by the plaintiff from the bank for construction of the plinths.

Considering all such facts as were clearly indicated and given out by the defendant for
occupying the premises initially for a period of three years and the plaintiff having arranged for
the money accordingly by taking loan from the bank, the Trial Court, in our view, has rightly
held, referring to the earlier decisions of this Court that the defendant could not back out from
the promise held out and cannot escape when the liability for damages for breach of the terms
of the contract. We may, however, point out that the learned counsel for the defendant-
appellant has laid much emphasis mainly on three points. The first point is that there being no
registered lease deed it was a monthly tenancy and could validly be terminated by giving 15
days' notice and since the tenancy was terminated accordingly, there was no occasion to
saddle the defendant appellant with liability of damages. In absence of a registered lease deed,
it is contended that it could not be held that the property leased out to the defendant appellant
was for a period of three years. (WORDS 506)
 Exercise No. 25 (Part 7) plaintiff-defendant-TP Act-loan-Bank

The other objection, which has been raised, is that the agreement dated 12.2.1986
required registration under the provisions of the Indian Registration Act. The unregistered
agreement would not be admissible in evidence, hence it could not be acted upon. Yet another
objection, which has been raised, is that the suit was filed beyond the period of limitation. In
support of the first contention, a reference has been made to Section 107 of the Transfer of
Property Act, according to which the parties had to execute a registered lease deed but the
same was never done. We find that the High Court has rightly dealt with the question while
holding that the plaintiff had not filed the suit for enforcement of agreement of lease. It was a
suit filed for damages for the breach of contract. It was not a suit for specific performance of
the contract. A promise was definitely held out by the defendant to the appellant for occupying
the premises for a period of three years at a given rate of rent. The premises were in fact
constructed in accordance with the instructions and specifications of the defendant. For raising
the construction, the plaintiff had raised loans from the bank. Everything happened in
accordance with the terms of the contract except that the period of tenancy was interdicted
before three years of taking over of the possession by the defendant.

In our view, the Trial Court and the High Court have rightly held that in absence of any
lease deed or a registered lease deed, the nature of the lease would only be that of a monthly
lease but it does not mean that it would deprive the plaintiff of damages for breach of terms of
an agreement in accordance of which he had performed his part of the obligation by creating a
liability against himself by taking loan from bank and that it will be of no consequence as
agreed in the agreement since no lease was executed and registered. The plinths were
constructed in accordance with the design and specification given by the defendant. It may be
of no use to any other person and for any other purpose. In this background as what was held
out by the defendant, assumes importance and in case one, who holds out a promise, will have
to compensate the party who acted bonafidely on the basis of the promise made. As indicated
earlier, even the tender notice, besides other correspondence, all gave out that the defendant
would occupy the premises for a period of three years. Everything was acted upon according to
the agreement except the execution of lease deed, hence there was termination of tenancy on
15 days' notice. The plaintiff is not insisting that the defendant must retain possession for the
remaining period or that the tenancy was not terminable but termination of the tenancy would
not necessarily mean that the defendant would also not be liable for compensating for the
breach of promise held out in the terms of the agreement. (WORDS 505)
 Exercise No. 26 p (Part 7) Land-Acquired-Possession

Further, so far as the judgment cited by the respondents in Civil Appeal No. 331 of
2014, we are of the view that the same has no application on the facts of the present case
because the appellants in that matter are nowhere connected or concerned with the appellants
in the present batch of cases as contended by the appellants. In that matter, the aggrieved
persons have not challenged the acquisition proceedings rather they accepted the acquisition
but filed references for enhancement of compensation. The appellants therein have accepted
the compensation in the year 2001 itself after the passing of the award and their possession
have been taken in the year 2001 itself by the authorities concerned whereas in the present
batch of appeals the appellants are still in possession and they have not accepted any
compensation for their acquired land. Secondly, the impugned judgment in the present appeals
is two years after passing of the impugned order in C.A. No. 331 of 2014. Therefore, the
impugned judgment of C.A. No. 331 of 2014 is totally different from the impugned judgment in
the present batch of matters and are in no way connected to each other.

After referring to the aforesaid decisions with reference to the facts and circumstances
of the case on hand, we are of the view that physical possession of the land belonging to the
appellants have neither been taken by the respondents nor compensation paid to them even
though the award was passed on 06.08.2007 and more than five years have lapsed prior to
date on which the Act of 2013 came into force. Therefore, the conditions mentioned in Section
24(2) of the Act of 2013 are satisfied in this case for allowing the plea of the appellants that
the land acquisition proceedings are deemed to have lapsed in terms of Section 24(2) of the
Act of 2013. The said legal principle laid down by this Court in the case of Pune Municipal
Corporation and other cases referred to supra with regard to the interpretation of Section
24(2) of the Act of 2013 are applicable to the fact situation in respect of the land covered in
these appeals for granting the relief as prayed by the appellants in the applications. From the
aforesaid decisions, the legal position that emerges is that when a repeal of an enactment is
followed by a fresh legislation, such legislation does not effect the substantive rights of the
parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a
court of appeal cannot take into consideration a new law brought into existence after the
judgment appealed from has been rendered because the rights of the parties in an appeal are
determined under the law in force on the date of suit. However, the position in law would be
different in the matters which relate to procedural law but so far as substantive rights of
parties are concerned, they remain unaffected by the amendment in the enactment. (502)
 Exercise No. 27 p (Part 7) Criminal Matter

The trial court held that the statements of PW-2 Jagdev and PW-3 Hardev were
relevant and not merely hearsay evidence and their statements would not be unreliable merely
because they were relatives. The delay in filing the FIR was held to be explained as the
complainant was proven to be unfit to make the statement on the day of incident. The court
further noted that though the accused claimed to have been injured, they had not filed a
complaint or put any suggestion regarding the same to the prosecution witness. The injuries on
the accused were simple in nature. The court held that the conduct of the accused in travelling
one kilometer from their house armed with a gandasa and inflicting injuries on the complainant
proved their common intention and the medical evidence proved that the injuries inflicted were
simple and in one instance grievous in nature. The trial court convicted the respondent and
sentenced him to rigorous imprisonment for 3 years with fine of Rs.1000/- for offence
punishable under Section 326 IPC and rigorous imprisonment for 1 year with fine of Rs.500/-
for offence punishable under Section 323 IPC and Lav Kaur was also convicted under Sections
326 and 323 IPC r/w Section 34 IPC and awarded the same sentence.

Aggrieved by the judgment of the trial court, the respondent and his wife preferred
appeal to the Sessions Court, which noted that there was documentary evidence proving that
the accused and complainant were treated by the same doctor. The presence of the accused at
the crime spot was held to be proven. Lav Kaur had no injuries on her person and six injuries
on the respondent were held to be simple and its non-explanation was held to be not fatal to
the prosecution case. The Sessions Judge held that though PW-2 and PW-3 reached the spot
afterwards, the statement of the complainant was enough to conclude that it was the accused
who inflicted the injuries. The Sessions Judge, however, held that the finger injury was
erroneously held to have been grievous as the radiologist who conducted the X-Ray of the said
injury and whose report was relied upon by PW-6 to hold the injury as grievous, was not
examined. The Sessions Court set aside the conviction of the accused under Section 326 IPC
but upheld their conviction under Section 323 IPC upholding other findings of the trial court.
The Sessions Judge also noted that Lav Kaur was an old lady, who herself had not caused any
injury to the complainant and was a first time offender and released her on probation on a
bond of Rs. 20,000/- after setting aside her sentence of imprisonment with fine. The
respondent was however sentenced to imprisonment of one and half years with fine of Rs.
1000/-. Aggrieved by the judgment of the Sessions Court, the respondent preferred revision
before the High Court. The respondent did not challenge the order of conviction but sought
reduction of the sentence awarded to the period of imprisonment. (WORDS 501)
 Exercise No. 28 (Part 7) Industrial Tribunal-Workmen

Applying these tests, we have no doubt at all that the dispute covered by the first issue
referred to the Industrial Tribunal in the present cases could not possibly be referred for
decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a
number of conditions of service of the workmen, which relief could only be granted by an
Industrial Tribunal dealing with an industrial dispute. The Registrar could not possibly have
granted the reliefs claimed under this issue because of the limitations placed on his powers in
the Act itself. It is true that Section 61 by itself does not contain any clear indication that the
Registrar cannot entertain a dispute relating to alteration of conditions of service of the
employees of a registered society; but the meaning given to the expression "touching the
business of the society", in our opinion, makes it very doubtful whether a dispute in respect of
alteration of conditions of service can be held to be covered by this expression. Since the word
"business" is equated with the actual trading or commercial or other similar business activity of
the society and since it has been held that it would be difficult to subscribe to the proposition
that whatever the society does or is necessarily required to do for the purpose of carrying out
its objects, such as laying down the conditions of service of its employees, can be said to be a
part of its business, it would appear that a dispute relating to conditions of service of the
workmen employed by the society cannot be held to be a dispute touching the business of the
society.

Further, the position is clarified by the provisions of Sub-section (4) of Section 62 of

the Act which limit the power to be exercised by the Registrar, when dealing with a dispute
referred to him under Section 61, by a mandate that he shall decide the dispute in accordance
with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of
the Act, the rules and the bye-laws could not possibly permit the Registrar to change
conditions of service of the workmen employed by the society. For the purpose of bringing
facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh
Government under the Act and the bye-laws of one of the appellant Banks have been placed
on the Paper-books of the appeals before us. It appears from them that the conditions of
service of the employees of the Bank have all been laid down by framing special bye-laws.
Most of the conditions of service, which the workmen want to be altered to their benefit, have
thus been laid down by the bye-laws, so that any alteration in those conditions of service will
necessarily require a change in the bye-laws. Such a change could not possibly be directed by
the Registrar when he is specifically required to decide the dispute referred to him in
accordance with the provisions of the bye-laws. (WORDS 512)
 Exercise No. 29 (Part 7) Criminal Matter

The question for consideration is whether the appellant had granted bail on insufficient
grounds or was justified in passing such an order. Granting of bail to accused pending trial is
one of the significant judicial functions to be performed by a Judicial Officer. In the instant
case, neither the State nor the complainant had filed any appeal against the order passed by
the appellant. The State did not allege that the accused, who had been granted bail, was likely
to abuse his bail or likely to abscond. It is also pertinent to note that the accused, to whom the
appellant had granted bail, was one of the three accused against whom charge-sheet had been
filed by the police. As per the prosecution case, the accused Ram Pal is alleged to have caused
death of one of the victims while accused Raghu Nath was alleged to have caused death of
other victim. Accused Ram Pal had been in custody for more than one year. The police had
already filed charge-sheet against him and the court was yet to frame charge against all the
accused. Accused Ram Pal was a student and he alleged that had he suffered a loss of one
year's study. He also alleged that his father was seriously ill due to heart ailment and he
produced a medical certificate from one of the professors working in the local medical college.
It was under these circumstances that the bail application filed by Ram Pal came to be heard
by the appellant and he granted bail to him by order passed on 22.6.1996. It is also important
that the complainant made an attempt to have the bail application transferred from the court
of the appellant to the court of Principal Sessions Court.

The learned Judge who conducted the enquiry held that in the facts of the case where a
heinous and daring offence had been committed in broad daylight and two persons had been
shot dead in a crowded area at Jhansi and the accused were named in the FIR as well as in
the dying declarations and their bail applications having been considered and rejected twice on
merits by the respective courts, the third bail application granted by the charged officer in
utter disregard of the judicial norms and on insufficient grounds appears to be based on
extraneous consideration. The learned enquiry Judge did not care to take notice of the fact that
the co-accused had been granted bail by the High Court and that accused Ram Pal, who was a
student and had been in jail for more than one year was granted bail for cogent reasons, set
out in the order passed by the appellant. In the bail order, the appellant stated that there was
an allegation that the Magistrate who recorded the dying declaration was once upon a time a
tenant in one of the houses owned by the complainant. Taking cognizance of this fact by the
appellant in the order could not be said to be a totally unwarranted and a superfluous
reasoning. (WORDS 508)
 Exercise No. 30 (Part 7) Criminal Matter

We must note that this is the third case which this Court has noticed in a short span of
two months where, in a case of suspected poisoning, viscera report is not brought on record.
We express our extreme displeasure about the way in which such serious cases are dealt with.
We wonder whether these lapses are the result of inadvertence or they are a calculated move
to frustrate the prosecution. Though the FSL report is not mandatory in all cases, in cases
where poisoning is suspected, it would be advisable and in the interest of justice to ensure that
the viscera is sent to the FSL and the FSL report is obtained. This is because not in all cases
there is adequate strong other evidence on record to prove that the deceased was
administered poison by the accused. In a criminal trial the Investigating Officer, the Prosecutor
and the Court play a very important role. The court’s prime duty is to find out the truth. The
Investigating Officer, the Prosecutor and the Courts must work in sync and ensure that the
guilty are punished by bringing on record adequate credible legal evidence. If the Investigating
Officer stumbles, the Prosecutor must pull him up and take necessary steps to rectify the
lacunae. The Criminal Court must be alert, it must oversee their actions and in case, it
suspects foul play, it must use its vast powers and frustrate any attempt to set at naught a
genuine prosecution. Perhaps, the instant case would have been further strengthened had the
viscera been sent to the FSL and the FSL report was on record. These scientific tests are of
vital importance to a criminal case, particularly when the witnesses are increasingly showing a
tendency to turn hostile. In the instant case all those witnesses who spoke about poisoning
turned hostile. Had the viscera report been on record and the case of poisoning was true, the
prosecution would have been on still firmer grounds.

Having noticed that in several cases where poisoning is suspected, the prosecuting
agencies are not taking steps to obtain viscera report, we feel it necessary to issue certain
directions in that behalf. We direct that in cases where poisoning is suspected, immediately
after the post-mortem, the viscera should be sent to the FSL. The prosecuting agencies should
ensure that the viscera is in fact sent to the FSL for examination and the FSL should ensure
that the viscera is examined immediately and report is sent to the investigating
agencies/courts. If the viscera report is not received, the concerned court must ask for
explanation and must summon the concerned officer of the FSL to give an explanation as to
why the viscera report is not forwarded to the investigating agency/court. The criminal court
must ensure that it is brought on record. We have examined the merits of the case and held
that appeal deserves to be dismissed. In the circumstances, the appeal is dismissed. (493)
 Exercise No. 31 (Part 7) Auction-purchaser

A perusal of the impugned order especially paragraphs 8, 12 and 13 extracted

hereinabove reveal that the impugned order came to be passed in order to work out the
equities between the parties. The entire deliberation at the hands of the High Court were based
on offers and counter offers, inter se between the Allahabad Bank on the one hand and the
objector Harender Singh on the other, whereas the rights of Shiv Prasad Sinha–the auction-
purchaser, were not at all taken into consideration. As a matter of fact, it is Shiv Prasad Sinha
who was to be deprived of the property which came to be vested in him as far back as on
28.8.2008. It is nobody’s case that at the time of the auction-purchase, the value of the
property purchased by Shiv Prasad Sinha was in excess of his bid. In fact, the factual position
depicted under paragraph 8 of the impugned judgment reveals that the escalation of prices
had taken place thereafter and the value of the property purchased by Shiv Prasad Sinha was
presently much higher than the bid amount. Since it was nobody’s case that Shiv Prasad
Sinha, the highest bidder at the auction conducted on 28.8.2008, had purchased the property
in question at a price lesser than the then prevailing market price, there was no justification
whatsoever to set aside the auction-purchase made by him on account of escalation of prices
thereafter. The High Court in ignoring the vested right of the appellant in the property in
question, after his auction bid was accepted and confirmed, subjected him to grave injustice by
depriving him to property which he had genuinely and legitimately purchased at a public
auction. In our considered view, not only did the Division Bench of the High Court in the matter
by ignoring the sound, legal and clear principles laid down by this Court in respect of a third
party auction purchaser, the High Court also clearly overlooked the equitable rights vested in
the auction-purchaser during the pendency of a lis. The High Court also clearly overlooked the
equitable rights vested in the auction purchaser while disposing of the matter.

At the time of hearing, we were thinking of remanding the matter to the Recovery
Officer to investigate into the objection of Harender Singh under Rule 11 of the Second
Schedule to the Income Tax Act, 1961. But considering the delay such a remand may cause,
we have ourselves examined the objections of Harender Singh and reject the objections for a
variety of reasons. Firstly, the contention raised at the hands of the respondents before the
High Court that the facts narrated by Harender Singh were a total sham, as he was actually
the brother of one of the judgment-debtors, namely, Jagmohan Singh and that Harender Singh
had created an unbelievable story with the connivance and help of his brother so as to save
the property in question. The claim of Harender Singh in his objection petition was based on an
unregistered agreement to sell dated 10.1.1991. (WORDS 505)
 Exercise No. 32 (Part 7) Will-Testator

It is well-settled that one who propounds a Will must establish the competence of the
testator to make the Will at the time when it was executed. The onus is discharged by the
propounder adducing prima facie evidence proving the competence of the testator and
execution of the Will in the manner contemplated by law. The contestant opposing the Will may
bring material on record meeting such prima facie case in which event the onus would shift
back on the propounder to satisfy the Court affirmatively that the testator did know well the
contents of the Will and in sound disposing capacity executed the same. The factors, such as
the Will being a natural one or being registered or executed in such circumstances, as would
leave no room for suspicion, assume significance. If there is nothing unnatural about the
transaction and the evidence adduced satisfies the requirement of proving a Will, the Court
would not return a finding of 'not proved' merely on account of certain assumed suspicion or
supposition who are the persons propounding and supporting a Will as against the person
disputing the Will and the pleadings of the parties would be relevant and of significance.

The factum of Will having been executed by Bhagubai in favour of Chingubai, the
sister's daughter, bequeathing the suit property is specifically alleged in the plaint. In the
written statement excepting for a bare denial, there is no other pleading raised questioning the
sane disposing capacity of Bhagubai at the time of execution of Will. It is true that the plaintiff
Chingubai did not appear in the witness box but that is because she was indisposed. Her son
has appeared in the witness box. The two attesting witnesses on account of being known to
Chingubai's son, being his classmates, were known to the family, and therefore, were natural
witness to be called to attest the execution of Will. On account of their acquaintance with the
family, they could have naturally known and identified the executant. Merely because of being
classmates they would be interested in obliging their classmates' mother so as to benefits her
and go to the extent of falsely deposing is too far fetched an inference to draw. The contents of
the Will, coupled with oral evidence, show that for last 25-30 years, Chingubai had taken care
of Bhagubai and it was due to love and affection of Bhagubai for Chingubai that the former was
bequeathing her properties in favour of Chingubai. Chingubai is none else than Bhagubai's
sister's daughter and probably the only heir. There is nothing to suggest that Bhagubai had
anyone else than Chingubai, who could be a closer heir or relation of Bhagubai and with whom
Bhagubai could have spent her last days. No other relation of Bhagubai, who would have
succeeded to the estate of Bhagubai if the Will would not have been there, has come forward
to dispute or to object to the Will. The challenge is thrown by a stranger to the family and one
who has trespassed upon the property. (WORDS 508)
 Exercise No. 33 p (Part 7) Marriage-Dowry

Alleging cruelty and desertion against the husband, the appellant-wife approached the
Matrimonial Court under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the
Act") praying for dissolution of her marriage with the respondent by a decree of divorce. She
also prayed for direction to the respondent to return her ornaments given to him at the time of
marriage. The Family Judge allowed the petition and dissolved the marriage of the parties on
the ground of desertion by the husband. The appellant was also granted a decree of
Rs.12,000/- towards the price of the scooter, allegedly given at the time of the marriage and
payment of Rs.500/- per month as permanent alimony. Both the husband and the wife
preferred appeals against the order of the Family Court as the wife was not satisfied with the
part of the order refusing to grant a decree in her favour in respect of properties claimed by
her and the husband was aggrieved by the order of dissolution of the marriage by a decree of
divorce. Both the appeals were disposed of by the impugned order holding that the appellant-
wife herself was a defaulting party and neither the allegations of cruelty nor of desertion were
proved. The order passed under Section 27 of the Hindu Marriage Act and for permanent
alimony was also set aside. The grievance of the appellant-wife is that the High Court was not
justified in setting aside the findings of fact arrived at by the Family Court and that she had
proved the existence of cruelty and desertion against the respondent. It is contended that as
the appellant-wife was proved to have been living separately, it was to be presumed that the
respondent had deserted her.

The facts of the case giving rise to the filing of the present appeals are that marriage
between the parties was solemnized on 6.5.1987. The appellant-wife lived with the
respondent-husband till 21st June, 1987 and according to her the marriage between the
parties was never consummated. After 21st June, 1987 the parties started living separately.
The appellant alleged that her parents spent more than Rs.80,000/- with respect to the
ceremonies of the marriage and also gave several articles in the form of ornaments and cash
as per demand of the respondent. The respondent and his family members allegedly made
further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of
Rs.10,000/-. The father of the appellant obliged the respondent by giving him Rs.10,000/- in
the first week of June, 1987 but could not fulfill the other demands of his parents. The
respondent and his family members were alleged to have started torturing the appellants on
false pretexts. Aggrieved by the attitude of the respondent and his family members, the
appellant states to have filed a petition under Section 13 of the Act seeking dissolution of
marriage by a decree of divorce along with prayer for the return of the property and grant of
permanent alimony. (WORDS 496)
 Exercise No. 34 (Part 7) TP Act-plaintiff

Assuming that there was any deficiency in the pleadings and also an omission on the
part of trial court to frame a specific issue, the present one is a case where the applicability of
the law laid down by this Court in Nagubai Ammal and Ors. vs. B. Shama Rao, AIR (1956) SC
593 was squarely attracted. In Nagubai's case, this court was called upon to examine if the
plea of its pendens was not open to the plaintiff on the ground that it had not been raised in
the pleadings. Neither the plaint nor the reply statement of the plaintiff contained any
averment that the sale was affected by the rule of pendens. There was no specific issue
directed to that question. However, evidence was adduced by the plaintiff on the plea of lis
pendens and not objected to by the defendants. The question was argued and tested by taking
into consideration the evidence that the proceedings were collusive in character with a view to
avoid operation of Section 52 of the T.P. Act. This Court felt satisfied that the defendants went
to trial with full knowledge that the question of pendens was in issue, had ample opportunity to
adduce their evidence thereon and fully availed themselves of the opportunity. This court
formed the opinion that in the circumstances of the case, absence of a specific pleading on the
question was a mere irregularity which resulted in no prejudice to the defendants.

In the case before us, it was not the grievance raised by any of the parties before the
High Court that there was any failure on the part of trial court in discharging its obligation of
framing issues. Nobody complained of prejudice at the trial for want of any issue or a specific
issue. It was nobody's case that any evidence was excluded or not allowed to be taken on
record by the trial court. The very fact that the defendant-appellants have come up to this
court laying challenge to the order of remand shows that the appellants are not interested in
remand and do not want any additional issue to be framed or to adduce any further evidence.
One of the pleas taken by the appellants in the memo of special leave petition is that the High
Court had erred in remanding the matter back for fresh trial and the High Court had failed to
appreciate that there was sufficient material on record to show absence of readiness and
willingness on the part of the plaintiff to perform its part of the contract. On the other hand,
after passing of the impugned order of remand the plaintiff-respondent has also filed a memo
before the trial court on 18.2.2000 submitting that on the additional issues framed pursuant to
the direction of the High Court, the evidence on behalf of the plaintiff was already on record
and the plaintiff would lead rebuttal evidence only if any evidence was adduced by the
defendants. Thus the plaintiff is also not desirous of adducing any additional evidence on the
issues. (WORDS 509)
 Exercise No. 35 (Part 7) Vacancy-Candidates

It is submitted that the candidates from these States who have been allotted seats in
the first round of allotment may not have been given the course or college or place of their
choice and in case later on they get the allotment of their choice under the State quota, then
they will vacate the seats allotted to them under the All-India Quota. Hence they apprehend
that more than 700 seats will fall vacant once the counselling is conducted in the aforesaid
States. Therefore, it is submitted that a third round of counselling is required to be held and
that the vacant seats, if any, should arise in the 15% All-India Quota seats should not be
allowed to revert back to the States/Colleges after September 2001 and that instead successful
and meritorious candidates in the All-India Quota should be allotted these seats or such other
orders as necessary may be passed.

As per clause 14 of the Scheme, if the Dean or the Principal of the concerned college
does not notify the vacancy position due to non-joining of candidates or candidate in the first
round of counselling before the date indicated therein, the seats allotted to the college will be
treated as vacant and allotment of candidates will be made against these deemed vacant seats
and it shall be the responsibility of the Dean of the Principle of the concerned college to give
admission to those candidates. The second round of allotment by personal appearance will be
for candidates who were allotted a seat in the first round and who wish to change their allotted
college/course and wish to join the same against vacancies arising due to non-joining of the
candidates allotted in first round of personal appearance and for candidates on the merit list
who could not be considered for allotment in the first round. It is thus the third round of
counselling by personal appearance was to be concluded by a particular date. When a detailed
scheme has been framed through orders or this Court and the manner in which it has to be
worked out is also indicated therein, we do not think that if in a particular year there is any
short fall or certain number of seats are not filled up, the same should be done by adopting
one more round of counselling because there is no scope for the third round of counselling
under the Scheme. It would not be advisable to go on altering the scheme as and when seats
are found vacant. What is to be borne in mind is that broad equality will have to be achieved
and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 250
seats are not filled up for various reasons, we do not think it should result in the third round of
counselling. If that process is to be adopted then there will be again vacancies and further
filling up of the seats falling vacant will have to be undertaken. (WORDS 501)
 Exercise No. 36 (Part 7) Criminal Matter

At the outset, it is necessary to mention that the principal witnesses are PW-1 to PW-3
and the trial court as well as the appellate court has given credence to their evidence. PW-1,
Charan Singh, the author of the FIR, has testified that he got the FIR of the incident prepared
on the spot itself and then lodged it at Police Station in the same night by handing over it to
the Head Constable Devi Ram, PW-4, who thereafter made entry in the general diary. He has
deposed that the accused Dharam Pal, Mahendra and Vijendra are real brothers and they
belonged to his own village; that about nine years ago prior to the date of occurrence, Gaje
Singh, real brother of the accused, Dharam Pal, was murdered for which he and Hukam Singh,
real brother of the deceased Badan Pal, and others were put on trial and eventually they were
acquitted. He has stated in his evidence that since then the accused persons brewed enmity
against them. It has also come out in his evidence that the deceased was a student of High
School and used to stay in the kotha where the tube-well situate for availing the facility of
electric light for his studies. PW-2, Gajpal, cousin of the deceased Badan Pal, has clearly stated
that he along with his cousin Nepal Singh left the village at about 7 p.m. carrying the meals for
Badan Pal, who was staying inside the kotha of the aforesaid tube-well. He has further deposed
that Tedha, PW-3, accompanied them and after they reached the place, they heard a sound of
gun firing from inside the kotha of the tube-well. He has deposed that he has seen all the four
accused persons coming out of the northern side of the said kotha of the tube-well and he had
also seen the accused Dhani Ram and Dharam Pal were armed with pistols.

On a keen scrutiny of the decision of the High Court, it is evident that it repelled the
submissions of the appellants on the ground that lack of motive was too feeble a plea in the
circumstance of the case to throw the prosecution case overboard; that it has come in
evidence that the accused persons had harboured vengeance against them after their acquittal
in the case where they were tried for the offence under Section 302 IPC; that there was no
reason why the witnesses who were close relations of the deceased would falsely embroil the
accused persons leaving the real culprits; that there is no reason to discard the testimonies of
PWs 2 and 3 singularly on the ground that they are related witnesses, for they have stood
embedded in their version and there is no inconsistency to discredit them; that there is nothing
unusual on the part of PW-2 to carry a torch with him; that the identification of the accused
persons by PWs 2 and 3 with the help of electric light and torch has been appositely
appreciated by the learned trial Judge. (WORDS 505)
 Exercise No. 37 (Part 7) Appointment-Service

It is not necessary for us to express any opinion on the applicability of Rule 3(1) on the
facts of the present cases for the simple reason that in our view the railway employees
concerned, respondents herein, have admittedly snatched employment in railway service,
maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The
unauthenticity of the service cards on the basis of which they got employment is clearly
established on record of the departmental enquiry held against the employees concerned.
Consequently, it has to be held that the respondents were guilty of misrepresentation and
fraud perpetrated on the appellant-employer while getting employed in railway service and had
snatched such employment which would not have been made available to them if they were
not armed with such bogus and forged labourer service cards.

Learned counsel for the respondents submitted that for getting service in railway as
casual labourers, it was strictly not necessary for the respondents to rely upon such casual
service cards. If that was so, there was no occasion for them to produce such bogus
certificates/service cards for getting employed in railway service. Therefore, it is too late in the
day for the respondents to submit that production of such bogus or forged service cards had
not played its role in getting employed in railway service. It was clearly a case of fraud on the
appellant-employer. If once such fraud is detected, the appointment orders themselves which
were found to be tainted and vitiated by fraud and acts of cheating on the part of employees,
were liable to be recalled and were at least voidable at the option of the employer concerned.
This is precisely what has happened in the present case. Once the fraud of the respondents in
getting such employment was detected, the respondents were proceeded against in
departmental enquiries and were called upon to have their say and thereafter have been
removed from service. Such orders of removal would amount to recalling of fraudulently
obtained erroneous appointment orders which were avoided by the employer-appellant after
following the due procedure of law and complying with the principles of natural justice.
Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained
appointment orders could be legitimately treated as voidable at the option of the employer and
could be recalled by the employer and in such cases merely because the respondent-
employees have continued in service for a number of years on the basis of such fraudulently
obtained employment orders cannot create any equity in their favour or any estoppel against
the employer. No court should be a party to the perpetuation of the fraudulent practice. It is
true that the facts of the case in the aforesaid decision were different from the facts of the
present case and it is also true that in that case pending the service which was continued
pursuant to the order of the Tribunal the candidate concerned acquired requisite qualification
and hence his appointment was not disturbed by the Court. (WORDS 507)
 Exercise No. 38 (Part 7)p Contempt Act

An advocate who is found guilty of contempt of court may also be guilty of professional
misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to
punish that advocate by either debarring him from practice or suspending his licence, as may
be warranted, in the facts and circumstances of each case. The learned Solicitor General
informed us that there have been cases where the Bar Council of India taking note of the
contumacious and objectionable conduct of an advocate, had initiated disciplinary proceedings
against him and even punished him for “professional misconduct”, on the basis of his having
been found guilty of committing contempt of court. We do not entertain any doubt that the Bar
Council of the State or Bar Council of India, as the case may be, when apprised of the
established contumacious conduct of an advocate by the High Court or by this Court, would
rise to the occasion, and take appropriate action against such an advocate.

Under Article 144 of the Constitution “all authorities, civil and judicial, in the territory of
India shall act in aid of the Supreme Court”. The Bar Council which performs a public duty and
is charged with the obligation to protect the dignity of the profession and maintain professional
standards and etiquette is also obliged to act “in aid of the Supreme Court”. It must, whenever
facts warrant, rise to the occasion and discharge its duties uninfluenced by the position of the
contemner advocate. It must act in accordance with the prescribed procedure, whenever its
attention is drawn by this Court to the contumacious and unbecoming conduct of an advocate
which has the tendency to interfere with due administration of justice. It is possible for the
High Courts also to draw the attention of the Bar Council of the State to a case of professional
misconduct of a contemner advocate to enable the State Bar Council to proceed in the manner
prescribed by the Act and the Rules framed thereunder. There is no justification to assume that
the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the
dignity of the courts and the majesty of law and prevent any interference in the administration
of justice. Learned counsel for the parties present before us do not dispute and rightly so that
whenever a court of record records its findings about the conduct of an advocate while finding
him guilty of committing contempt of court and desires or refers the matter to be considered
by the Bar Council concerned, appropriate action should be initiated by the Bar Council
concerned in accordance with law with a view to maintain the dignity of the courts and to
uphold the majesty of law and professional standards and etiquette. Nothing is more
destructive of public confidence in the administration of justice than rudeness or disrespectful
conduct on the part of a counsel towards the court or disregard by the court of the privileges of
the Bar. (WORDS 507)
 Exercise No. 39 (Part 7) p Service Matter

The issue of whether a judicial officer has been actuated by an oblique motive or
corrupt practice has to be determined upon a careful appraisal of the material on the record.
Direct evidence of corruption may not always be forthcoming in every case involving a
misconduct of this nature. The breach of the governing principles of law or procedure may well
be indicative in a given case of a motivated. In the absence of a cogent explanation to the
contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the
basis of which an inference that the judicial officer was actuated by extraneous considerations
can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with
sensitivity and care. A robust common sense must guide the disciplinary authority. At one end
of the spectrum are those cases where direct evidence of a misdemeanour is available.
Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to
determine whether an act of misconduct is established on the basis of legally acceptable
evidence.

Yet in other cases, direct evidence of a decision being actuated by a corrupt motive
may not be available. The issue which arises in such cases is whether there are circumstances
from which an inference that extraneous considerations have actuated a judicial officer can
legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis
that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment.
Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a
judicial officer must be distinguished from a purely erroneous decision whether on law or on
fact. The legality of a judicial determination is subject to such remedies as are provided in law
for testing the correctness of the determination. It is not the correctness of the verdict but the
conduct of the officer which is in question. The disciplinary authority has to determine whether
there has emerged from the record one or more circumstances that indicate that the decision
which forms the basis of the charge of misconduct was not an honest exercise of judicial
power. The circumstances let into evidence to establish misconduct have to be sifted and
evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest
and independent officer. Yet on the other hand, there is a vital element of accountability to
society involved in dealing with cases of misconduct. There is on the one hand a genuine public
interest in protecting fearless and honest officers of the district judiciary from motivated
criticism and attack. Equally there is a genuine public interest in holding a person who is guilty
of wrong doing responsible for his or his actions. Neither aspect of public interest can be
ignored. Both are vital to preservation of the integrity of the administration of justice. (490)
 Exercise No. 40 (Part 7) Criminal Matter

The Tribunal should not be a silent spectator when medical evidence is tendered in
regard to the injuries and their effect, in particular the extent of permanent disability. Sections
168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire
as in a civil suit but as an active explorer and seeker of truth who is required to `hold an
enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore
take an active role to ascertain the true and correct position so that it can assess the `just
compensation'. While dealing with personal injury cases, the Tribunal should preferably equip
itself with a Medical Dictionary and a Handbook for evaluation of permanent physical
impairment for understanding the medical evidence and assessing the physical and functional
disability. The Tribunal may also keep in view the first schedule to the Workmen's
Compensation Act, 1923 which gives some indication about the extent of permanent disability
in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical
medical terms, the Tribunal should instruct him to state in addition, in simple non-medical
terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage
of permanent disability, the Tribunal has to seek clarification as to whether such percentage of
disability is the functional disability with reference to the whole body or whether it is only with
reference to a limb. If the percentage of permanent disability is stated with reference to a limb,
the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the
corresponding functional permanent disability with reference to the whole body and if so the
percentage.

The Tribunal should also act with caution, if it proposed to accept the expert evidence
of doctors who did not treat the injured but who give 'ready to use' disability certificates,
without proper medical assessment. There are several instances of unscrupulous doctors who
without treating the injured, readily giving liberal disability certificates to help the claimants.
But where the disability certificates are given by duly constituted Medical Boards, they may be
accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may
invariably make it a point to require the evidence of the Doctor who treated the injured or who
assessed the permanent disability. Mere production of a disability certificate or Discharge
Certificate will not be proof of the extent of disability stated therein unless the Doctor who
treated the claimant or who medically examined and assessed the extent of disability of
claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is
not satisfied with the medical evidence produced by the claimant, it can constitute a Medical
Board from a panel maintained by it in consultation with reputed local Hospitals/Medical
Colleges and refer the claimant to such Medical Board for assessment of the disability. (494)
 Exercise No. 41 (Part 7) Selection-Exam-SC/ST

The selection procedure provided the minimum age for recruitment as 21 years and the
maximum age of 25 years on the cut off date. Relaxation of age for various categories of
candidates in accordance with the Government Orders issued from time to time was also
admissible. This included five years' relaxation in age to Scheduled Caste, Scheduled Tribes,
Other Backward Classes and dependents of Freedom Fighters. Relaxation of age was also
provided in case of Ex-servicemen. The period of service rendered in Army would be reduced
for computing the age of the Ex-Army personnel. After deducting the period of service they
had rendered in the Army, they would be deemed eligible. These were mere eligibility
conditions for being permitted to participate in the selection process. Thereafter, the
candidates had to appear in a Preliminary Written Test. This consisted of 300 maximum marks
and the candidates were required to secure 50% or more marks to participate in the further
selection process. Thereafter, the candidates had to undergo physical test consisting of 100
marks. Again a candidate was required to secure at least 50% or more marks.

It is not disputed before us that the standard of selection in the Preliminary Written
Test and the Physical Test was common to all the candidates. In other words, the standard was
not lowered in case of the candidates belonging to the reserved category. The Preliminary
Written Test and the Physical Test were in the nature of qualifying examinations to appear in
the Main Written Test. The marks obtained in the Preliminary Written Examination and the
Physical Test were not to be included for determination of final merits. It was only candidates
who qualified in the preliminary written test and the physical test that became eligible to
appear in the main written test which consisted of 600 marks. As noticed earlier, this had two
papers i.e. General Hindi, General Knowledge and Mental Aptitude Test. A candidate who
secured 40% or above would be declared successful in the written test. Thereafter, the
candidates were to appear for interview of 75 marks. The final merit list would be prepared on
the basis of merit secured in the main written test and the interview. Candidates appearing in
the merit list, so prepared, would be declared selected. It is common ground that more than
50,000 candidates appeared in the preliminary written test. Upon declaration of the result on
22.9.2000, only 3,325 candidates were found successful. Thereafter, the physical test which
was conducted from 29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It
was these 1454 candidates who sat in the main written test held on 29.4.2001. Upon
declaration of result, 1178 candidates were declared successful. The candidates who were
successful in the written test were subjected to an interview between 18.6.2001 to 1.7.2001.
The final result published on 6.7.2001 declared only 1006 candidates successful. (WORD 475)
 Exercise No. 42 (Part 7) Criminal Matter

We now proceed to consider the reasons, which weighed with the High Court while
discarding the evidence of eye-witness. The complaint Ext.P1 shows that PW-1 and the
deceased had gone at a distance from the village for easing themselves. Narrative clearly
shows that it was at that stage that the tractor was driven straight towards the deceased. We
do not see how there was an improvement in the version in Court as against the one which
finds mention in the complaint Ext.P1 or that the place of occurrence was changed. In the very
same complaint, PW-1 had said that after the incident he had raised alarm whereupon many
persons from the village had arrived at the scene of occurrence. It is true that he had not
named PW-3 as one of those persons in the complaint. That factor may certainly weigh while
appreciating the testimony of witnesses. Similarly, if as against the role of exhortation which
was attributed to only one person in the complaint, if there is subsequent improvement in the
oral testimony in Court, that aspect of the matter can also be taken care of while appreciating
the evidence . But the question is whether these two reasons are strong enough to discard the
testimony of the eye witness in toto. In our view, even if there were some improvements on
the part of PW-1, these matters are not so fundamental affecting the very core to such an
extent that his testimony needs to be discarded.

It has come on record that deceased Brahmadeen was 90 years of age and was living
with the family of PW-1. A man of such advanced age can reasonably be expected to depend
upon the assistance of the inmates of the house. It would not be unnatural in such
circumstances for somebody from the house to accompany the old man when he is required to
answer the call of nature. The fact that Brahmadeen was done to death while he had gone to
ease himself and that his body was found in such area, is clear from the record. At the spot, a
lathi, a lota and his hawaai chappal were found which again lend support. In the
circumstances, the presence of PW-1 at the relevant time and place is quite natural. The
record further indicates that soon after the incident PW-1 rushed to the police station and the
first information report was registered in an hour and a half. The investigator rushed to the
spot where spot panchnama revealed tyre marks of the tractor. He also found lathi, lota and
hawaai chappal of the deceased next to the body. The status of the body also showed that it
was run over by a vehicle which was later substantiated by post-mortem. Consequently, we
find the version coming from PW-1 to be consistent, supported by all relevant circumstances
and lodged with promptitude. Having found his presence to be natural and his version getting
complete support on material particulars, the witness is completely trustworthy. (WORD 500)
 Exercise No. 43 (Part 7) Criminal Matter

It is settled principle that a conviction can well be founded on the testimony of a single
witness if the court finds his version to be trustworthy and corroborated by record on material
particulars. We find on the touchstone of these principles the testimony of PW-1 is completely
trustworthy. Out of three infirmities found by the High Court, one regarding place of
occurrence is not correct at all. So far as other two infirmities are concerned, it is well accepted
principle that the first information report need not contain every single detail and every part of
the case of the prosecution. However, assuming them to be improvements, in our view the
basic substratum of the matter does not get affected by such improvements at all. Even after
segregating the part which appears to be introduced as improvement, the testimony of PW-1 is
clear and creditworthy. The feature that there was strong motive for the respondents to
commit the murder in question is also clear from the record and the trial court had accepted
that the respondents had strong motive to commit the crime. The finding as regards motive
has not even been touched by the High Court. While PW-1 narrated facts regarding civil
litigation, the fact that the respondents accused were being tried for the murder of his father
and that there was a separate case instituted against them for having assaulted Brahmadeen,
he was not countered in cross-examination. The motive therefore lends complete corroboration
and assurance while appreciating the version of PW-1.

We are conscious that we are considering an appeal against acquittal and that going by
the law laid down by this Court, the view taken by the High Court ought not to be interfered
with if it is a possible view. However, in our considered opinion, the view which weighed with
the High Court cannot be termed as a possible view in the matter. It is well settled that in such
circumstances it is open to an appellate court to consider the matter afresh. Having
undertaken such exercise, we are of definite conclusion that PW-1 is a natural witness whose
presence at the time and place of incident is established and is worthy of acceptance.
However, mindful of the fact that in the original reporting he had attributed 'lalkara' to
respondent-Basant Lal alone while the tractor was being driven by respondent Om Prakash,
which meant that the other two accused, though sitting on the tractor were not attributed any
overt act, we grant benefit of doubt to the other two accused, namely, Lalji and Gyan Prakash.
It could possibly be put that Brahmadeen, an old man of 90 years would normally be
accompanied by someone for assistance but would be unaccompanied while easing out and
therefore the time and place was so deliberately chosen, in which case culpability of every
occupant of the tractor would be made out. However, in the absence of any material
establishing that, Lalji and Gyan Prakash are entitled to benefit of doubt. (WORDS 500)
 Exercise No. 44 (Part 7) Meter-Bills

The short dispute in this case pertains to the steps taken by the appellant-Corporation
for levying the energy charges on the first respondent for the period of the alleged meter fault.
On the basis of the inspection conducted on 28th November, 2009 by the Junior Engineer of
the appellant-Corporation, the first respondent was served with a notice dated 23.03.2010
demanding an amount of Rs.1,97,815/- towards energy charges. The first respondent filed a
writ petition before the High Court, which was disposed of by judgment dated 18.05.2010
permitting her to file objections and directing the Executive Engineer to consider the objections
and pass a speaking order. The Executive Engineer, by order dated 08.06.2010, passed the
revised order limiting the demand to Rs.50,891/-. The said order was challenged before the
High Court in C.W.P. No. 19347 of 2012 leading to the impugned judgment. The High Court,
having conducted an elaborate inquiry into the matter, found that there was no justification for
the demand. It was held that the proper procedure prescribed under law was not followed in
inspection and preparation of the report. Still further, it was held that even the appellate
authority did not discharge its functions as expected by them. The displeasure on the conduct
of the assessing officer and the appellate authority was directed to be recorded in their annual
character roll for the relevant period. The writ petition was thus allowed with costs of
Rs.10,000/- to be paid by the appellant-Corporation with liberty to recover the same from the
officials concerned after conducting an appropriate inquiry. There was also a direction to
communicate the order to the Chief Secretary for ensuring compliance of the directions by the
High Court and thus aggrieved, the Corporation and its officials have come up in appeal.

Though several contentions are raised by the Counsel on both sides, the dispute
essentially is in a very narrow compass. According to the appellants, for whatever reason,
there was short assessment of energy charged at the premises of the first respondent during
the period between 05.11.2008, when the old meter was replaced on 31.01.2010. It is not in
dispute that a new meter was installed at the premises of the first respondent on 23.01.2010.
It is fairly conceded that when the meter at the premises of a consumer is reported to be non-
functional, and if consequently, there is short assessment for a long period, the bills can be
revised for that period but limiting to twelve months. What should be the basis of the
assessment, is the simple question. There is no case for the appellants that the meter installed
on 23.01.2010 had any fault thereafter, in any case, for quite some time. Therefore, having
regard to the entire facts and circumstances of the case, we are of the view that interest of
justice will be served if the energy bills of the first respondent are revised for a period of
twelve months, taking the average of twelve months from 01.02.2010. (WORDS 495)
 Exercise No. 45 p (Part 7) Service-Enquiry-Delinquent-Termination

In the case at hand, it is clear crystal that on the basis of a complaint made by a
member of the Legislative Assembly, an enquiry was directed to be held. It has been
innocuously stated that the complaint was relating to illegal selection on the ground that the
appellant did not possess the requisite qualification and was appointed to the post of Chest
Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently
states about the conduct and character of the appellant. The stand taken in the counter
affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities
after issuing the notice to show cause and obtaining a reply from the delinquent employee did
not supply the documents.

Be that as it may, no regular enquiry was held and he was visited with the punishment
of dismissal. It is well settled in law that if an ex-parte enquiry is held behind the back of the
delinquent employee, there are stigmatic remarks that would constitute foundation and not the
motive. Therefore, when the enquiry commenced and thereafter without framing of charges or
without holding an enquiry the delinquent employee was dismissed, there is clear violation of
principles of natural justice. It cannot be equated with a situation of dropping of the
disciplinary proceedings and passing an order of termination simpliciter. In that event it would
have been motive and could not have travelled to the realm of the foundation. We may hasten
to add that had the appellant would have been visited with minor punishment, the matter
possibly would have been totally different. It is also not the case that he was terminated solely
on the ground of earlier punishment. In fact, he continued in service thereafter. As the report
would reflect that there are many allegations subsequent to the imposition of punishment
relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had
conducted an enquiry behind the back of the appellant. The stigma has been cast in view of
the report received by the Central Vigilance Commission which was ex parte and when that
was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an
enquiry only to find out that he did not possess the requisite qualification. Had that been so,
the matter would have been altogether different. The allegations in the report of the Vigilance
Department pertain to his misbehaviour, conduct and his dealing with the officers and the
same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of
imagination it can be accepted that it is termination simpliciter. The Division Bench has
expressed the view that no departmental enquiry was required to be held as it was only an
enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual
score been so, the said analysis would have been treated as correct, but unfortunately the
exposition of factual matrix is absolutely different. (WORDS 505)
 Exercise No. 46 p (Part 7) Criminal Matter

Mrs. Monika was examined as PW-1 and she asserted in her sworn testimony that on
the date of incident at about 2.00 pm, a quarrel had ensued between the children of two
families and, therefore, Ram Kumar Singh had gone to the house of Kallu Singh with a view to
get the matter reconciled amicably but the deceased was abused him. It is further asserted by
her that at about 7.00 pm on May 30, 1983, when she along with her deceased husband and
son Rupender Kumar was returning from market, they were accosted near the house of Kallu
Singh, who was standing on the road in front of his house and that the appellant, who was
having a gun, had fired a shot at the deceased as a result of which the deceased had fallen
down on the road. Though this witness was cross-examined searchingly, nothing could be
elicited to establish that the appellant and others were falsely implicated in the case because of
enmity. Her testimony gets complete corroboration from the contents of FIR lodged by her.
The Courts below, on appreciation of evidence, have held that the FIR was neither ante-timed
nor delayed and that the same was filed promptly.

It is well settled that when soon after the occurrence the FIR is lodged at the police
station, false story being cooked up or false implication of accused stands ruled out. The
testimony of wife of the deceased also gets complete corroboration from the testimony of
witness Rupender Kumar, who was examined as PW-2. Witness Rupender Kumar has also
stated that the appellant had fired a shot from his gun at the deceased as a result of which the
deceased had died. Though this witness was cross-examined at length, no dent could be made
in the assertion made by him that the deceased had died because of the gun shot fired by the
appellant. It is well to remember that Mrs. Monika PW-1 is the wife of the deceased whereas
Rupender Kumar is the son of the deceased. They, being the close relatives of the deceased,
would not allow the real culprits to go scot free and implicate the appellant falsely in the case.
As noticed by the High Court, Kallu Singh was brother-in-law i.e. husband of the sister of Mrs.
Monika. Therefore, she would never make an attempt to implicate the appellant falsely in the
case, as the appellant is closely related to her. It was easy for her to mention in her FIR and
before the court that the shot was fired either by Kallu Singh, i.e. her brother-in-law or by
Vijay Pal Singh, but she has not made any such attempt and attributed the firing of the shot
only to the appellant. The trial court, which had advantage of observing demeanour of the
witnesses, has rightly placed reliance on the testimony of Mrs. Monika for the purpose of
coming to the conclusion that the appellant had fired a shot at the deceased due to which the
deceased lost his life. (WORDS 506)
 Exercise No. 47 (Part 7) Service Matter-Seniority

It must be stated immediately that the recruitment to the posts of Deputy Jailor in the
State of Uttar Pradesh is governed by the 1980 Rules, which have been framed by the
Governor in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
1980 Rules provide for cadre of service, procedure for recruitment to the post of Deputy Jailor,
reservation, academic qualifications, determination of vacancies, appointment, probation,
confirmation and inter-se seniority of persons appointed to the service. However, by
subsequent Rules, namely, 1991 Rules which too were made by the Governor under the
proviso to Article 309 of the Constitution, comprehensive provisions have been made for the
determination of seniority of all government servants in the State of Uttar Pradesh. Rule 2 of
the 1991 Rules says that these rules shall apply to all government servants in respect of whose
recruitment and conditions of service, rules may be or have been made by the Governor under
the proviso to Article 309 of the Constitution and rule 3 gives to the 1991 Rules overriding
effect notwithstanding anything to the contrary contained in earlier service rules. In this view
of the matter, inter-se seniority amongst 1991 and 1994 appointees by direct recruitment has
to be determined under the 1991 Rules and rule 22 of the 1980 Rules has to give way to the
1991 Rules.

Now, insofar as 1991 Rules are concerned, the said Rules provide for determination of
seniority in relation to different categories. Rule 5 makes provision for determination of
seniority in cases where according to service rules, appointments are made only by the direct
recruitment. It would be seen that 1980 Rules are the relevant service rules for appointment to
the posts of Deputy Jailor. As per rule 5 of the 1980 Rules, there are two sources of
recruitment to the post of Deputy Jailor; one, by direct recruitment and the other by promotion
from amongst the permanent Assistant Jailors in ratio of 50% each. The word `only' in rule 5
of the 1991 Rules is of significance and it becomes clear therefrom that rule 5 of the 1991
Rules has no application at all for determination of inter-se seniority of the 1991 and 1994
appointees because 1980 Rules provide for appointment to the posts of Deputy Jailor by direct
recruitment as well as by promotion. It is only where service rules in the State of U.P. provide
for appointments by direct recruitment alone that rule 5 of 1991 Rules comes into play for
determination of seniority and not otherwise. Reliance placed by the High Court upon second
proviso to rule 5 of the 1991 Rules for determination of inter-se seniority amongst 1991 and
1994 appointees is thus misplaced. The High Court fell into grave error in not appreciating that
rule 5 of the 1991 Rules operates where service rules provide for appointments by direct
recruitment only. Rule 6 and rule 7 of the 1991 Rules also have no application as these rules
provide for determination of seniority. (WORDS 504)
 Exercise No. 48 (Part 7) Criminal

We may now turn to the deposition of Prasant Banerjee (PW-6) who is the other eye-
witness to the occurrence. This witness has, in his deposition before the trial court, stated that
on 14th April, 2000 he was at a distance of about 100 yards from the place of occurrence.
According to this witness while he was going on his motorcycle with Ravi Ranjan Prasad, on the
pillion seat and the deceased Gurdas Chatterjee was going on the pillion seat of another
motorcycle. Appellant Sheo Shankar Singh was following the deceased on a motorcycle with
appellant Umesh Singh sitting on the pillion of that motorcycle. The witness further states that
appellant Sheo Shankar Singh took the motorcycle to the left of the motorcycle on which the
deceased was travelling whereupon appellant Umesh Singh who was sitting on the pillion fired
two shots because of which the deceased fell down on the south side of the G.T. Road. The
motorcycle of appellant Sheo Shankar Singh stopped at a short distance whereupon the
appellant Umesh Singh got down from the motorcycle and came to the place where the
deceased was lying and then fired another shot at him. Appellant Umesh Singh then returned
to the motorcycle and went away towards Nirsa. The witness further stated that he knew both
the accused- appellants.

In cross-examination this witness stated that he remained on the spot for 10 to 15

minutes after the occurrence during which time Ravi Ranjan was with him. He and Ravi Ranjan
then proceeded to his destination. He did not lodge any report in the police station but the
witness told his wife, son and father about the occurrence. He knew the deceased for the last
10 to 12 years prior to the occurrence but had not visited his house. He was summoned to the
police station in the month of April 2000 but could not meet the officer in-charge. The police
recorded his statement one and half months after the occurrence. The witness further states
that the first shot from the motorcycle was fired from behind that injured the back portion of
the head of MLA while the second shot was fired by appellant Umesh Singh after he got down
from the motorcycle which too had injured the deceased in his head. The witness further
stated that a large crowd had assembled at the place of occurrence during the time he
remained on the spot but he did not talk to any person nor remember any persons having
talked to him. The witness also denies the suggestion made to him that he had old friendship
with appellants or that he had been frequently visiting the house of both the appellants. The
witness stated that he went to the place where deceased had fallen after 7 to 8 minutes and
that 10 to 15 persons had arrived at the place of occurrence before he reached there. The
witness denied the suggestions that he is a member of the political party of the deceased.
(WORDS 501)
 Exercise No. 49 (Part 7) Custody of child

It may be noticed that the stand of the appellant is that since August 04, 2010 she had
been pursuing for the custody of her child. She had also visited the police station and
approached the CAW Cell. It is also admitted position that within 22 days i.e. on August 26,
2010 the petition for the grant of custody of child was filed by her. Had she abandoned the
child of her own she would not have pursued continuously thereafter for getting the custody of
the child. Even she had requested the learned Principal Judge, Family Court for interim custody
of the child which was given to her in the form of visitation rights thrice in a month and she
and her family had been meeting the child during that period. After filing the appeal, the
appellant has been taking the interim custody of the child as is stated above. In these
circumstances, it cannot be said that the appellant has not care for the child. Further,
respondent is any army Officer. During the course of his service he will be also getting non-
family stations and it will be difficult for him to keep the child. Further, even though as per him
his parents are looking after the child but when the natural mother is there and has knocked
the door of the court without any delay and has all love and affection for the child and is willing
to do her duty with all love and affection and since the birth of the child she has been keeping
the child. In these circumstances, she should not be deprived of her right especially
considering the tender age and child being a girl child. The grandparents cannot be a
substitute for natural mother. There is no substitute for mother's love in this world. The
grandparents are old and old age has its own problems.

Considering the totality of facts and circumstances, the welfare of the child lies with the
mother i.e appellant who is educated, working and earning a good salary and after school
hours has ample time to spend with the child. In these circumstances, impugned order is set
aside and the request of the appellant for the grant of custody of the said child to her being
natural mother is allowed and the appellant is also appointed as guardian of her child being a
natural guardian/mother. The aforesaid observations contained in para 31 of the order of the
High Court extracted above, apply with greater force today. This Court cannot turn a blind eye
to the fact that there have been strong feelings of bitterness and distress between the
appellant and the respondent, where each party feels that they are 'right' in many of their
views on issues which led to separation. The intensity of negative feeling of the appellant
towards the respondent would have obvious effect on the psyche of Diya, who has remained in
the company of her father, to the exclusion of her mother. (WORDS 500)
 Exercise No. 50 p (Part 7) Judges-High Court

The functions discharged by a High Court can be divided broadly into judicial and
administrative functions. The judicial functions are to be discharged essentially by the Judges
as per the Rules of the Court and cannot be delegated. However, administrative functions need
not necessarily be discharged by the Judges by themselves, whether individually or collectively
or in a group of two or more, and may be delegated or entrusted by authorization to
subordinates unless there be some rule of law restraining such delegation or authorization.
Every High Court consists of some administrative and ministerial staff, which is a part of the
High Court as an institution and is meant to be entrusted with the responsibility of discharging
administrative and ministerial functions. There can be “delegation” as also there can be
“authorization” in favour of the Registry and the officials therein by empowering or entrusting
them with authority or by permitting a few things to be done by them on behalf of the Court so
as to aid the Judges in discharge of their judicial functioning. Authorization may take the form
of formal conferral or sanction or may be by way of approval or countenance. Such delegation
or authorization is not a matter of mere convenience but a necessity at times. The Judges are
already overburdened with the task of performing judicial functions and the constraints on
their time and energy are so demanding that it is in public interest to allow them to devote
time and energy as much as possible in discharging their judicial functions, relieving them of
the need for diverting their limited resources of time and energy to such administrative or
ministerial functions, which, on any principle of propriety, logic, or necessity are not required
necessarily to be performed by the Judges. Receiving a cause or a document and making it
presentable to a Judge for the purpose of hearing or trial and many a functions post-decision,
which functions are administrative and ministerial in nature, can be and are generally
entrusted or made over to be discharged by the staff of the High Court, often by making a
provision in the Rules or under the orders of the Chief Justice or by issuing practice directions,
and at times, in the absence of rules by sheer practice. The practice gathers the strength of
law and the greater is the strength. The Judges rarely receive personally any document
required to be presented to the Court. Plaints, petitions, memoranda or other documents
required to be presented to the Court are invariably received by the administrative or
ministerial staff, who would also carry out a preliminary scrutiny of such documents so as to
find that they are in order and then make the documents presentable to the Judge, so that the
valuable time of the Judge is not wasted over such matters as do not need to be dealt with
personally by the Judge. (WORDS 483)
 Exercise No. 51 (Part 7) Will-Evidence Act

Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory

provisions of Section 68 of the Evidence Act to meet a situation where it is not possible to
prove the execution of the Will by calling attesting witnesses. This Section provides that if an
attesting witness denies or does not re-collect the execution of the Will, its execution may be
proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses,
who have been called, deny or fail to re-collect the execution of the document to prove it by
other evidence. Section 71 has no application to a case where one attesting witness, who alone
had been summoned, has failed to prove the execution of the Will and other attesting
witnesses though are available to prove the execution of the same for the reasons best known,
have not been summoned before the Court. It is clear from the language of Section 71 that if
an attesting witness denies or does not re-collect execution of the document, its execution may
be proved by other evidence. However, in a case where an attesting witness fails to prove the
due execution of Will as required under clause (c) of Section 63 of the Succession Act, it
cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said
that if one attesting witness denies or does not re-collect the execution of the document, the
execution of Will can be proved by other evidence dispensing with the evidence of other
attesting witnesses.

Yet, another reason as to why other available attesting witnesses should be called
when the one attesting witness fails to prove due execution of the Will is to avert the claim of
drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best
possible evidence before the Court for consideration is one of the cardinal principles of Indian
Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other
evidence in certain circumstances, but Section 68 is not merely an enabling Section. It lays
down the necessary requirements, which the Court has to observe before holding that a
document is proved. Section 71 is meant to lend assistance and come to the rescue of a party
who had done his best, but driven to a state of helplessness and impossibility cannot be let
down without any other means of proving due execution by "other evidence" as well. At the
same time Section 71 cannot be read so as to absolve a party of his obligation under Section
68 read with Section 63 of the Act and liberally allow him at his will or choice to make available
or not a necessary witness otherwise available and amenable to the jurisdiction of the court
concerned and confer a premium upon his omission or lapse to enable him to give a go bye to
the mandate of law relating to proof of execution of a Will. (WORDS 508)
 Exercise No. 52 (Part 7) SARFAESI Act

When we understand the factual matrix in the backdrop of the objectives of the above
two legislations, the controversy in the instant case assumes immense significance. There is an
interest of the bank in recovering the Non-Performing Asset on the one hand and protecting
the right of the blameless tenant on the other. The Rent Control Act must be construed as
such. A landlord cannot be permitted to do indirectly what he has been barred from doing
under the Rent Control Act, more so when the two legislations that is the SARFAESI Act and
the Rent Control Act operate in completely different fields. While SARFAESI Act is concerned
with Non Performing Assets of the Banks, the Rent Control Act governs the relationship
between a tenant and the landlord and specifies the rights and liabilities of each as well as the
rules of ejectment with respect to such tenants. The provisions of the SARFAESI Act cannot be
used to override the provisions of the Rent Control Act. If the contentions of the learned
counsel for the respondent-Banks are to be accepted, it would render the entire scheme of all
Rent Control Acts operating in the country as useless and nugatory. Tenants would be left
wholly to the mercy of their landlords and in the fear that the landlord may use the tenanted
premises as a security interest while taking a loan from a bank and subsequently default on it
and the landlord would simply have to give up the tenanted premises as a security interest to
the creditor banks while he is still getting rent for the same. In case of default of the loan, the
maximum brunt will be borne by the unsuspecting tenant, who would be evicted from the
possession of the tenanted property by the Bank under the provisions of the SARFAESI Act.
Under no circumstances can this be permitted, more so in view of the statutory protections to
the tenants under the Rent Control Act and also in respect of contractual tenants along with
the possession of their properties which shall be obtained with due process of law.

The issue of determination of tenancy is also one which is well settled. While Section
106 of the Transfer of Property Act does provide for registration of leases which are created on
a year to year basis, what needs to be remembered is the effect of non-registration or the
creation of tenancy by way of an oral agreement. According to Section 106 of the Transfer of
Property Act, a monthly tenancy shall be deemed to be a tenancy from month to month and
must be registered if it is reduced into writing. The Transfer of Property Act, however, remains
silent on the position of law in cases where the agreement is not reduced into writing. If the
two parties are executing their rights and liabilities in the nature of a landlord-tenant
relationship and if regular rent is being paid and accepted, then the mere factum of non-
registration of deed will not make the lease itself nugatory. (WORDS 507)
 Exercise No. 53 p (Part 7) Criminal-Marriage

In view of the above observations made, it is amply clear that even though the accused
had tortured and harassed the deceased because of which she was constantly running away
from her matrimonial home and had also filed a number of complaints against the accused, the
same cannot be said to be the reason for her death in the light of the facts and circumstances
of the present case and the dying declaration made by her. The learned counsel for the
appellants has placed reliance upon the decision of this Court reported in the case of Ramesh
Kumar vs. State of Chhattisgarh, (2014) Vol. 9 SCC 491 wherein it is held that Sections 498A
and 306 IPC are independent and constitute different offences. Merely because an accused has
been held liable to be punished under Section 498A IPC, it does not follow that on the same
evidence, he must also and necessarily be held guilty of having abetted the commission of
suicide by the women concerned under Section 306 IPC. Therefore, the conviction and
sentence for offence punishable under Section 306 read with Section 114 of the IPC of the
present appellants is contrary to the legal evidence on record particularly the dying declaration
of the deceased and the conduct of the accused who took the deceased to the hospital. This
fact has been grossly ignored by the courts below while convicting and sentencing the
appellants for the aforesaid offences. Therefore, the conviction and sentence for the aforesaid
offence is erroneous and accordingly it is liable to be set aside.

After evaluation of evidence on record and concurrent finding of fact recorded by the
trial court and the appellate court, the appellants were convicted for the offences punishable
under Section 498A and 306 read with Section 114 of the IPC. The accused were acquitted for
the offences punishable under Section 304B read with Section 114 of IPC and Section 4 of the
Dowry Prohibition Act, 1961 as they did not find any evidence on record to bring home the
guilt of appellants for the offences punishable under Section 306 as there is no cogent
evidence in this regard in the finding of fact. Therefore, the conviction and sentence for the
offence punishable under Section 498A of I.P.C. with regard to cruelty is held to be proved by
the courts below. The same is accepted by us and they are required to be convicted and
sentenced for the offence punishable under Section 498A IPC. The conviction and sentence
passed by the High Court for the offence punishable under Section 306 read with Section 114
of IPC is liable to be set aside and accordingly we set aside the same. Since we have upheld
the conviction for the offence punishable under Section 498A IPC., it is to be carefully
examined by us taking into consideration the facts and circumstances of the case as to what
sentence is required to be imposed upon the appellants. (WORDS 492)
 Exercise No. 54 (Part 7) Company-Agency

Learned counsel appearing on behalf of the appellant contended before us that both
the Courts below have failed to appreciate that the complaint was essentially filed against the
accused in their personal capacities since at the time of filing of the complaint, the appellant
believed that M/s. Shah Enterprises was a proprietary concern of respondent No.1. He further
contended that respondent No. 2 was a signatory of the cheques and he was incharge of the
affairs of M/s. Shah Enterprises. According to the learned counsel, both the Courts adopted
highly technical view of the matter. It is not in dispute that the cheques were drawn from the
account maintained with M/s. Shah Enterprises. When this Court asked the learned counsel for
the appellant whether there is any liability of M/s. Shah Agency, then it was submitted that the
cheques were drawn by M/s. Shah Enterprises but the liability, as would be evident from the
examination-in-chief, is that of M/s. Shah Agency. Learned counsel further submitted that
Section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’)
has no application because the partnership firm was not arrayed as an accused. He further
submitted that respondent No. 2 is liable being a signatory of both the cheques and he was
incharge of M/s. Shah Enterprises.

On the contrary, it is submitted by the learned counsel appearing on behalf of the

respondents that both the Trial Court as well as the High Court rightly came to the conclusion
that the complaint was not maintainable against the partnership firm since cheques were
issued on behalf of the first respondent. Furthermore, M/s. Shah Enterprises was never given
any statutory notice nor it was arrayed as an accused before the Metropolitan Magistrate. He
further submitted that a three Judge Bench of this Court in the case of Aneeta Hudda vs.
Godfather Travel and Tours Pvt. Ltd., (2012) 5 SCC 661, held that for maintaining the
prosecution under the NI Act, the company should be made a party irrespective of the fact that
its Director has been arrayed as an accused. Learned counsel for the respondents further
submitted that this appeal should be dismissed since the material facts have been suppressed
from the Court. The appellant ceased to be the Proprietor of M/s. Satya Polymer as per the
deed of assignment-cum-conveyance dated 3.4.2008. The said fact was deliberately
suppressed from the High Court as well as from the Trial Court. The appellant did not make
M/s. Shah Enterprises as a party on whose account the cheque was drawn. Furthermore, M/s.
Shah Enterprises had no outstanding liabilities. The complainant himself admitted in his cross-
examination that nothing was sold to Shah Enterprises and at no point of time M/s. Shah
Agency has been prosecuted. The appellant further admits that he has no account with M/s.
Shah Enterprises and he has running account with M/s. Shah Agency. He also admitted that
the transactions and dealings with them are reflected in the books of accounts. (499)
 Exercise No. 55 (Part 7) UPSC-CBI Enquiry

High Court APS

Mr. Shashi Nandan, learned Senior Counsel appearing for the petitioners at the outset
submitted that a Public Service Commission under the Constitution enjoy absolute and special
status and their functioning cannot be examined by the State Government in any manner
whatsoever. The State Government cannot exercise any jurisdiction or control over the Public
Service Commission. If the Government has any grievance against the working of UPPSC, the
Governor on the recommendation of the State Government can approach the President of India
to make reference to the Supreme Court under Article 317 of the Constitution. Holding an
enquiry/investigation through CBI or any other agency for that matter would amount to
interference in the functioning of the Public Service Commission and also bypassing the
procedure contemplated under Article 317 of the Constitution for removal of its Chairman and
Members. In other words, he submitted that CBI enquiry against UPPSC is actually an enquiry
against the Chairman and its Members and, therefore, it is not sustainable in law in view of the
scheme of Article 317 of the Constitution. He submitted that in any case there is absolutely no
material against UPPSC to conduct a fishing enquiry into their functioning either at the behest
of the State Government or any other authority in view of the peculiar status conferred on
Public Service Commissions under the Constitution of India. The decision to hold an
enquiry/investigation is an outcome of mala fides on account of refusal of the Chairman and
the Members to submit their resignation.

He also invited our attention to the judgment of this Court in Ram Sewak & Ors. Vs
State of U.P. & Ors., 2010 (6) ADJ 534 and submitted that identical question arose for
consideration of the Division Bench of this Court, which took a view that holding vigilance
enquiry by the State Government against the Chairman and Members of UPPSC is
impermissible and is colourable exercise of power and it was initiated just to pressurize the
Chairman and Members of the Commission to obey the command of the Government. He
submitted that this judgment has attained finality and the view taken by the Division Bench is
binding on this Court. Mr. Shashi Nandan also invited our attention to the term 'Commission'
as defined by clause (b) of Section 2 of Act, 1985 and also to Section 3(1) along with Article
317 of the Constitution to contend that no proceedings against the Chairman and Members of
Public Service Commissions can be conducted by any authority except the Supreme Court on a
reference made to it by the President of India. He submitted that Article 317 is clear and in
view of the scheme thereof holding an enquiry into allegations of misbehavior of the
Chairman/Members of the Public Service Commission is not permissible by any other authority
including the CBI. In other words, he submitted that holding an enquiry into the affairs of
UPPSC would also ultimately result into holding an enquiry into the conduct of the Chairman
and Members of the Commission. (WORDS 502)
 Exercise No. 56 (Part 7) Pay-scale-Teacher

The petitioners filed an amendment application challenging the Government Orders

dated 10.09.2013 and 24.09.2013 and the order dated 27.08.2014 passed on their
representation by the Principal Secretary aforesaid. The petitioners challenged the merits of
the aforesaid orders on the ground that the method of revision adopted by the respondents as
directed by this Hon'ble Court and the decision taken by the respondents are only applicable to
the newly appointed Leather Instructors and not applicable to the Leather
Instructors/petitioners who are demanding the equal pay scale from 1986 has been paid to the
Leather Instructors working at Government Leather Institute, Agra in Pay Scale of Rs. 1400-
2400 from the year 1986 while the petitioners are being paid Rs. 975-1660 since the year
1986. As per the order dated 2.2.2013 filed alongwith the Affidavit of Compliance by the
respondents in pursuance of the order dated 19.01.2013 of this Court, it has been stated and
admitted that earlier when the Diploma Courses started in the Government Leather Institute,
Agra, the teachers/Leather Instructors, who were teaching the classes of Diploma Courses,
were only certificate holders while in the Government Leather Institute Kanpur the Leather
Instructors were qualified for the teaching of Diploma courses being Diploma holders even then
the certificate holder, Leather Instructors of Government Leather Institute, Agra, were getting
pay scale Rs.1400-2400 in the year 1986, while the petitioners who are Diploma holder in the
year 1986, have been paid Pay scale of rs.975-1660.

This attitude of the respondents amounts to step-motherly treatment with the

petitioners and highly discriminatory. As such, refusal of pay scale Rs.1400-2400 to the
petitioners is violative of Articles 14, 16 and 39(d) of the Constitution of India and is against
the principles of equal pay for equal work. This discrimination/disparity of pay scale has not
been resolved after coming into force of the Uttar Pradesh Technical Education Department
Non-Gazetted Technical Service Rules, 1988 which was came in existence on 19.07.1989 and
after coming into force of the recommendations of the Vth & VIth pay commission, the
petitioners are not getting benefit of the aforesaid revision of pay scale of Rs.1400-2400 which
were revised in the year of 1996 and in the year 2006 the disparity of aforesaid pay scale
Rs.1400-2400 is still existing between the Leather Instructors of the two Institutes at Agra &
Kanpur. In earlier paragraph of the impugned order dated 27.08.2014, the Principal Secretary
has clearly stated that in both the institutes the process of the selection/appointment on the
post of Leather Instructors were not the same since the appointments were being made by the
Selection Committee constituted by the Director of Technical Education, Kanpur in the Institute
at Kanpur, while at Agra the appointments were made by U.P. Public Service Commission.
There was no service rule made for the Leather Instructors. It is wrong to state that the
Leather Instructors of Government Leather Institute, Agra were appointed by the Principal of
the Government Leather Institute, Kanpur. (WORDS 492)
 Exercise No. 57 (Part 7) Committee of Management

The present petition is directed against the order passed by the prescribed authority,
Dibai, Bulandshahar on 18.09.2017 whereby the application moved by the petitioner raising
dispute regarding maintainability of the reference had been rejected. The reference made by
the Deputy Registrar vide communication dated 29.07.2016 is also under challenge. The facts
in brief relevant to be noted here are that the Society namely Kanya Pathshala Association
Dibai is running an intermediate institution in the name and style of Sri Krish Jaju Kanya Inter
College, Dibai, Bulandshahar. It was registered on 12.08.1929 and the last registration was
renewed for a period of 5 years w.e.f 10.10.2015. The said institution is recognized by the
Madhyamik Shiksha Parishad, U.P. Allahabad and is receiving grant in aid from the State
Government. It is amenable to the provisions of U.P. Intermediate Education Act 1921 (in
short Act' 1921) as also the Uttar Pradesh High Schools and Intermediate Colleges (Payment of
Salaries of Teachers and other Employees) Act 1971 (in short Act 1971). The Scheme of
Administration of the petitioner's society for running the institution has been approved by the
Deputy Director of Education, Meerut Region Meerut.

At the outset, it is noteworthy that there is one elected committee of management

which is managing the society and the institution both. The elections of committee of
management are held as per the approved 'Scheme of Administration' from amongst the
members of the General body of the society who would form the electoral college. It appears
that an election dispute arose between two factions. The respondents Sri Om Prakash
Maheshwari had set up his election as Manager/Secretary in the proceedings held on
09.04.2016. On the other hand, the petitioner Sri Sanjeev Rathi claimed his election as
Manager/Secretary in the proceedings dated 17.04.2016. Upon hearing the parties having
found that there were rival elections, the Deputy Registrar made a reference under Section
25(1) of the Societies Registration Act 1860 (in short Act 1860) for adjudication before the
Prescribed Authority/Sub Divisional Officer. An objection was taken by the petitioner raising an
issue of maintainability of reference by moving an application dated 19.05.2017. The ground
taken therein was that with reference to the intermediate institution the dispute between two
rival claimants for management of the institution is required to be determined under Section
16-A (7) of Act 1921. It was further contended that the dispute relating to the rival elections in
relation to the society had already been decided by the Deputy Director of Education, Meerut
vide detailed order dated 12.08.2016 in exercise of powers under Section 16-A (7) of the Act
1921. It was thus submitted that the prescribed authority had no jurisdiction to enter into the
question which had already been adjudicated by the competent educational authority. This
application was rejected vide order dated 18.09.2017 passed by the prescribed authority/Sub
Divisional Officer, Dibai, which is under challenge. (WORDS 480)
 EXERCISE NO. 1 p (Part 8) Criminal Matter

Despite the conclusion recorded hereinabove, we are of the view that in the facts and
circumstances of this case, there should have been no difficulty whatsoever for the High Court
to have exercised its judicial conscience for invoking the power vested in it under Section 482
of the Cr.P.C. From the narration of the facts recorded above, it emerges that even though the
respondent-complainant in his complaint dated 6.7.1993 adopted a clear and categoric stance
that his daughter Dr. Monica Thapar had been poisoned to death before the Additional Sessions
Judge, Delhi, the respondent-complainant ventured to suggest that the appellants-accused had
strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who
were members of the Medical Board which had conducted the post-mortem examination and
sought clarifications from them. He also recorded the statement of one of the said doctors. The
Additional Sessions Judge thereupon ruled out the plea of strangulation. When the respondent-
complainant himself was uncertain about the manner in which his daughter had allegedly died,
the High Court should have viewed the matter keeping in mind the likelihood of the hurt
caused to a father who had lost his daughter within one year of her marriage. The matter
needed to have been evaluated on the basis of one of the parameters laid down in State of
Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 (1) SCC 335, whether the criminal proceedings
initiated by the complainant were actuated by malice and ulterior motive for wreaking
vengeance on the accused with a view to spite him due to some personal grudge.

There is yet another reason emerging from the facts of the case which needed to be
kept in mind. The respondent-complainant had continued to represent before the SDM, Delhi,
that he would produce the mother of the deceased, who knew the facts best of all. Despite that
the mother of the deceased did not appear in the inquest proceedings to record her statement,
even though a number of opportunities were afforded to the respondent-complainant to
produce her. The permissible inference is that he was himself not privy to the facts. The fact
that the mother of the deceased had not appeared to record a statement against the
appellants-accused has to have some reason/justification. Would a mother who believes that
her daughter had been poisoned/strangulated, restrain herself from recording her statement,
despite the persuasion of her husband. The instant factual position has been recorded
hereinabove, not for the sake of determination of the present controversy. In a factual
situation not as clear as the one in hand could be taken into consideration by a High Court for
recording its satisfaction on the parameters formulated above. For the reasons recorded
hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The
order of the High Court is accordingly also set aside, but on grounds different from those taken
into consideration by the High Court. The instant appeal accordingly succeeds. (WORDS 491)
 EXERCISE NO. 2 (Part 8) Criminal Matter

Being dissatisfied with the said order, the respondents preferred Criminal Revision No.
108 of 2010 before the learned Sessions Judge contending, inter alia, that the FIR had been
lodged with an ulterior motive to pressurize the respondents to return the earnest money and
the complainant had, in fact, committed breach of the terms of the agreement; that the
allegations made in the FIR could only be ascertained on the basis of evidence and documents
by a civil court of competent jurisdiction regard being had to the nature of the dispute; that
the learned Magistrate had taken cognizance without any material in the case diary; and that
the exercise of power under Section 190 of the Cr.P.C. was totally unwarranted in the case at
hand. The revisional court scanned the material brought on record, perused the case diary in
entirety, took note of the conduct of the Investigating Officer who had submitted the final
report stating that the allegations did not constitute any criminal offence despite the material
brought on record during the course of investigation by the Investigating Officer, who was
appointed at the instance of the Area Officer, scrutinized the substance of material collected to
the effect that Raghuvinder Singh had no right, title and interest in the property and a General
Power of Attorney was executed in favour of his wife to sell, transfer and convey all rights, title
and interest in the plot in question on behalf of the original allottee and that the husband and
wife had concealed the material factum of execution of Power of Attorney from the complainant
and opined that both the accused persons had fraudulent and dishonest intention since the
beginning of the negotiation with the complainant and, therefore, the allegations prima facie
constituted a criminal offence and it could not be said that it was a pure and simple dispute of
civil nature.

The unsuccess in revision compelled the respondents to approach the High Court in a
writ petition and the Writ Court came to hold that on the basis of the allegations made in the
FIR and the evidence collected during investigation it could not be said that the instant case is
simpliciter a breach of contract not attracting any criminal liability as far as the husband was
concerned and there was a prima facie case triable for offences under Sections 406 and 420 of
the IPC. However, while dealing with the allegations made against the wife, the High Court
observed that there being no entrustment of any property by the complainant to her and
further there being no privity of contract between them, she was under no legal obligation to
disclose to the complainant that she held a registered Power of Attorney from the original
allottee to sell and alienate the property in question and such non-disclosure of facts could not
be said to have constituted offence either under Sections 406 and 420 of the IPC. Being of this
view the High Court partly allowed the writ petition and quashed the order taking cognizance
and summoning of the wife. (WORDS 510)
 EXERCISE NO. 3 (Part 8) Misc. Matter

The question about the limits of the jurisdiction of High Courts in issuing a writ of
certiorari under Article 226 has been frequently considered by this Court and the true legal
position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting
errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders
are passed by inferior courts or tribunals without jurisdiction. A writ can similarly be issued
where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or properly,
as for instance, it decides a question without giving an opportunity or where the procedure
adopted in dealing with the dispute is opposed to principles of natural justice. There is,
however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction
and the Court is not entitled to act as an appellate Court. This limitation necessarily means
that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a writ but not an error of fact. In regard
to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued, if it is shown
that in recording the said finding, the Tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted inadmissible evidence which has influenced the
impugned finding.

Similarly, if a finding of fact is based on no evidence, that would be regarded as an

error of law which can be corrected by a writ of certiorari. In dealing with this category of
cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal
cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and
material evidence adduced before the Tribunal was insufficient or inadequate to sustain the
impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of
fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and
the said points cannot be agitated before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be
legitimately exercised. In our opinion, it is neither possible nor desirable to attempt either to
define or to describe adequately all cases of errors which can be appropriately described as
errors of law apparent on the face of the record. Whether or not an impugned error is an error
of law and an error of law which is apparent on the face of the record, must always depend
upon the facts and circumstances of each case and upon the nature and scope of the legal
provision which is alleged to have been misconstrued or contravened. (WORDS 502)
 EXERCISE NO. 4 p (Part 8) Service-Reinstatement

A reading of the impugned order shows that the learned Single Judge did not find any
jurisdictional error in the award of the Labour Court. He also did not find that the award was
vitiated by any error of law apparent on the face of the record or that there was violation of
rules of natural justice. As a matter of fact, the learned Single Judge rejected the argument of
the corporation that termination of the appellant's service falls within the ambit of Section 2
(bb) of the Act, and expressed unequivocal agreement with the Labour Court that the action
taken by the Managing Director of corporation was contrary to Section 25-G of the Act which
embodies the rule of last come first go. Notwithstanding this, the learned Single Judge
substituted the award of reinstatement of the appellant with compensation of Rs. 87,582/- by
assuming that appellant was initially appointed without complying with the equality clause
enshrined in Articles 14 and 16 of the Constitution of India and the relevant regulations. While
doing so, the learned Single Judge failed to notice that in the reply filed on behalf of the
corporation before the Labour Court, the appellant's claim for reinstatement with back wages
was not resisted on the ground that his initial appointment was illegal or unconstitutional and
that neither any evidence was produced nor any argument was advanced in that regard.
Therefore, the Labour Court did not get any opportunity to consider the issue whether
reinstatement should be denied to the appellant by applying the new jurisprudence developed
by the superior courts in recent years that the court should not pass an award which may
result in perpetuation of illegality. This being the position, the learned Single Judge was not at
all justified in entertaining the new plea raised on behalf of the corporation for the first time
during the course of arguments and deprive the appellant of what may be the only source of
his own sustenance and that of his family.

Another serious error committed by the learned Single Judge is that he decided the
writ petition by erroneously assuming that the appellant was a daily wage employee. This is ex
facie contrary to the averments contained in the statement of claim filed by the workman that
he was appointed in the scale of Rs. 350-525 and the orders dated 3.10.1986 and 25.2.1987
issued by the concerned Executive Engineer appointing the appellant as Work Munshi in the
pay scale of Rs. 355-525 and then in the scale of Rs. 400-600. This was not even the case of
the corporation that the appellant was employed on daily wages. It seems that attention of the
learned Single Judge was not drawn to the relevant records, else he would not have passed the
impugned order on a wholly unfounded assumption that the appellant was a daily wager. It is
true that in the writ petition filed by it, the corporation did plead that the dispute raised by the
appellant was not an industrial dispute because he had not worked continuously for a period of
240 days. (WORDS 512)
 EXERCISE NO. 5 (Part 8) Motor Vehicles

Challenge in this appeal by special leave is to the judgment and order dated 26th June,
2006 passed by the High Court of Karnataka at Bangalore, holding that the appellants herein
are entitled to a compensation of Rs. 3,56,000/- along with interest at the rate of 6% per
annum from the date of filing of the claim petition till the date of actual deposit of the
compensation under the Motor Vehicles Act 1988, as against the compensation of
Rs.6,08,000/- with interest at the rate of 6% per annum, awarded by the Motor Accident
Claims Tribunal, Mysore vide order dated 19th April, 2002. The appellants are the unfortunate
parents and the three sisters of the deceased. The first respondent is the owner of the lorry,
which was involved in the accident and the second respondent is the insurance company with
which the lorry was insured. According to the appellants, on 3rd June, 1999 at about 10.00
a.m., the deceased aged about 20 years, was riding on a luna moped when the lorry dashed
against it and ran over the deceased, killing him on the spot. The appellants filed a petition
under Section 166 of the Act for award of compensation on account of the death of the
deceased. In the petition, it was pleaded that the deceased had lucrative business and was
earning a sum of Rs. 20,000/- per month. A claim for compensation of Rs. 68,30,000/- was
made.

Upon consideration of the evidence adduced by the parties, in particular the Income
Tax Return filed by the deceased for the assessment year 1998-1999, wherein the total income
from business was declared at Rs. 43,000/, the Tribunal rejected the stand of the
appellants/claimants that the earnings of deceased were Rs. 20,000/- per month. The Tribunal
took the monthly income of the deceased at Rs. 7,000/- per month. Deducting therefrom half
of the said income towards personal and living expenses of the deceased and taking the age of
the younger of the parents as the basis for determining the multiplier as 14, the Tribunal
quantified the compensation at loss of dependency as Rs. 5,88,000/-. By adding Rs. 10,000/-
towards loss of expectation of life and Rs. 10,000/- towards funeral expenses etc., it
determined the total compensation as Rs.6,08,000/-. As noted above, interest at the rate of
6% per annum was also awarded. Being aggrieved, the owner of the vehicle, respondent No.1
in this appeal, preferred appeal to the High Court. Rejecting the plea of the owner of the
vehicle that his lorry was not involved in the accident, the High Court came to the conclusion
that on the basis of the Income Tax Return the income of the deceased could not be more than
Rs.40,000/- per annum. The High Court, however, calculated the monthly income of the
deceased as Rs.4,000/-. The High Court, however, did not interfere with the deduction towards
the personal expenses and the multiplier applied by the Tribunal as also the other amounts
awarded to the claimants. The High Court thus chose to reduce the compensation amount
awarded to the appellants by the Tribunal. (WORDS 514)
 EXERCISE NO. 6 p (Part 8) Criminal Matter

Before the High Court the stand was that even if the extra judicial confession is
accepted to be correct for the sake of argument, case under Section 302 IPC is not made out.
The stand of the prosecution was that the extra-judicial confession clearly showed both the
intention and the knowledge. Accordingly, the High Court dismissed the appeal. The stand
taken before the High Court was reiterated by the parties. In addition, learned counsel for the
appellant submitted that there was no pre-meditation and in the course of quarrel, a wooden
log which was lying was picked up by the appellant in a heat of passion and assault was made.
Only one blow was given and, therefore, Section 302 IPC, in any event, has no application. It
was submitted that extra-judicial confession is a very weak piece of evidence and should not
have been made the basis for conviction.

We shall first deal with the question regarding claim of extra judicial confession.
Though it is not necessary that the witness should speak the exact words but there cannot be
vital and material difference. While dealing with a stand of extra judicial confession, Court has
to satisfy itself that the same was voluntary and without any coercion and undue influence.
Extra judicial confession can form the basis of conviction if persons before whom it is stated to
be made appear to be unbiased and not even remotely inimical to the accused. Where there is
material to show animosity, Court has to proceed cautiously and find out whether confession
just like any other evidence depends on veracity of witness to whom it is made. It is not
invariable that the Court should not accept such evidence if actual words as claimed to have
been spoken are not reproduced and the substance is given. It will depend on circumstance of
the case. If substance itself is sufficient to prove culpability and there is no ambiguity about
import of the statement made by accused, evidence can be acted upon even though substance
and not actual words have been stated. The witness should be able to say as nearly as possible
actual words spoken by the accused. That would rule out possibility of erroneous interpretation
of any ambiguous statement. If word by word repetition of statement of the case is insisted
upon, more often than not evidentiary value of extra judicial confession has to be thrown out
as unreliable and not useful. That cannot be a requirement in law. There can be some persons
who have a good memory and may be able to re-post exact words and there may be many
who are possessed of normal memory and do so. It is for the Court to judge credibility of the
witness's capacity and thereafter to decide whether his or her evidence has to be accepted or
not. If Court believes witnesses before whom confession is made and is satisfied that
confession was voluntary basing on such evidence, conviction can be founded. Such confession
should be clear, specific and unambiguous. (WORDS 505)
 EXERCISE NO. 7 (Part 8) Society

Applying these tests, we have no doubt at all that the dispute covered by the first issue
referred to the Industrial Tribunal in the present cases could not possibly be referred for
decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a
number of conditions of service of the workmen which relief could only be granted by an
Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the
provisions of the Act, could not possibly have granted the reliefs claimed under this issue
because of the limitations placed on his powers in the Act itself. It is true that Section 61 by
itself does not contain any clear indication that the Registrar cannot entertain a dispute
relating to alteration of conditions of service of the employees of a registered society; but the
meaning given to the expression "touching the business of the society", in our opinion, makes
it very doubtful whether a dispute in respect of alteration of conditions of service can be held
to be covered by this expression. Since the word "business" is equated with the actual trading
or commercial or other similar business activity of the society, and since it has been held that
it would be difficult to subscribe to the proposition that whatever the society does or is
necessarily required to do for the purpose of carrying out its objects, such as laying down the
conditions of service of its employees, can be said to be a part of its business, it would appear
that a dispute relating to conditions of service of the workmen employed by the society cannot
be held to be a dispute touching the business of the society.

Further, the position is clarified by the provisions of Sub-section (4) of Section 62 of

the Act which limit the power to be exercised by the Registrar, when dealing with a dispute
referred to him under Section 61, by a mandate that he shall decide the dispute in accordance
with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of
the Act, the rules and the bye-laws could not possibly permit the Registrar to change
conditions of service of the workmen employed by the society. For the purpose of bringing
facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh
Government under the Act, and the bye-laws of one of the appellant-Banks have been placed
on the Paper-books of the appeals before us. It appears from them that the conditions of
service of the employees of the Bank have all been laid down by framing special bye-laws.
Most of the conditions of service, which the workmen want to be altered to their benefit, have
thus been laid down by the bye-laws, so that any alteration in those conditions of service will
necessarily require a change in the bye-laws. Such a change could not possibly be directed by
the Registrar when, under Section 62 (4) of the Act. (WORDS 508)
 EXERCISE NO. 8 (Part 8) Criminal

Shri Ashok Kumar, learned senior counsel for the State of Punjab has submitted that
the case in hand cannot be called as a rare case where an order for suspension of conviction
should be passed. Learned counsel has also submitted that the appellant having given up his
rights under Sub-section (4) of Section 8 of the Representation of the People Act and having
himself resigned from the membership of the Parliament, cannot again come back to the
Parliament until the appeal is decided in his favour. In our opinion, the contentions raised have
no substance. The broad features of the case which impel us to grant the order in favour of the
appellant have already been discussed earlier and it is not necessary to repeat the same. The
argument that the appellant having given up his right under Sub-section (4) of Section 8
should not be permitted to offer himself as a candidate, again is wholly misconceived. If a
person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of
the Act files an appeal within three months, he continues to remain a Member of Parliament or
Legislature of a Sate on the basis of protection afforded by Sub-section (4), but not on any
moral authority because the electorate had exercised their franchise prior to the order of
conviction and not when he had become a convict. But a person who resigns from the
Parliament or the Assembly and seeks a re-election, if elected, will have greater moral
authority to represent the constituency. Therefore, it is not possible to accept the contentions
raised by Shri Ashok Kumar.

Shri Rakesh Singh, learned senior counsel for the complainant has elaborated his
argument by submitting that irrespective of quantum of sentence if a person is convicted for
an offence referred to in Sub-section (1) of Section 8 where the punishment imposed may be
only a fine, a person will incur the disqualification from the date of conviction which will remain
for a period of six years and this evinces the intention of the Legislature that a convict should
not enter the precincts of Parliament or Legislature of a State. In our opinion, the contention
raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code.
The preamble of the Act is an Act to provide for the conduct of elections to the Houses of
Parliament and to the House or Houses of the Legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and other offences in
connection with such elections and the decision of doubts and disputes arising out of in
connection with such elections. He, therefore, submitted that once an accused has been
convicted and sentenced, it is only the execution of the sentence which can be suspended and
the order of conviction cannot be suspended or stayed as the same is not capable of being
stayed or suspended. (WORDS 493)
 EXERCISE NO. 9 (Part 8) Misc Matter

The High Court, in our view, was clearly in error in holding that the appellant not
having filed a memorandum of cross-objections in terms of Order XXI Rule 22 of the Code,
could not challenge the finding of the trial court that the suit was not barred by Order II Rule 2
of the Code. The respondent in an appeal is entitled to support the decree of the trial court
even by challenging any of the findings that might have been rendered by the trial court
against himself. For supporting the decree passed by the trial court, it is not necessary for a
respondent in the appeal to file a memorandum of cross-objections challenging a particular
finding that is rendered by the trial court against him when the ultimate decree itself is in his
favour. A memorandum of cross-objections is needed only if the respondent claims any relief
which had been negatived to him by the trial court and in addition to what he has already been
given by the decree under challenge. We have therefore no hesitation in accepting the
submission of the learned counsel for the appellant that the High Court was in error in
proceeding on the basis that the appellant not having filed a memorandum of cross-objections,
was not entitled to canvass the correctness of the finding on the bar of Order II Rule 2
rendered by the trial court.

We also see considerable force in the submission of learned counsel for the appellants
that the High Court has misconceived the object of Order XXX Rule 33 of the Code and has
erred in invoking it for the purpose of granting the plaintiff-Bank a decree. This is a case where
the suit filed by the plaintiff-Bank had been dismissed by the trial court. The plaintiff-Bank had
come up in appeal. It was entitled to challenge all the findings rendered against it by the trial
court and seek a decree as prayed for in the plaint from the appellate court. Once it is found
entitled to a decree on the basis of the reasoning of the appellate court, the suit could be
decreed by reversing the appropriate findings of the trial court on which the dismissal of the
suit was based. For this, no recourse to Order XXX Rule 33 is necessary. Order XXX Rule 33
enables the appellate court to pass any decree that ought to have been passed by the trial
court or grant any further decree as the case may require and the power could be exercised
notwithstanding that the appeal was only against a part of the decree and could even be
exercised in favour of the respondents, though the respondents might not have filed any
appeal or objection against what has been decreed. There is no need to have recourse to Order
XXX Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the
plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. (507)
 EXERCISE NO. 10 p (Part 8) Plaintiffs Matter

On comparing the above-mentioned provisions, it is clear that Article 17 of Schedule II

of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory
decree without any consequential relief and there is no other provision under the Act for
payment of fee relating to relief claimed. Article 17 of Schedule II of the Court Fees Act makes
it clear that this article is applicable in cases where the plaintiff seeks to obtain a declaratory
decree without consequential reliefs and there is no other provision under the Act for payment
of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case
of a suit involving cancellation or adjudging/declaring void or voidable a Will or sale deed on
the question of payment of court fees, then Article 17 of Schedule II shall be applicable. But if
such relief is covered by any other provisions of the Court Fees Act, then Article 17 of Schedule
II will not be applicable. On a comparison between the Court Fees Act and the U.P.
Amendment Act, it is clear that Section 7 of the U.P. Amendment Act covers suits for or
involving cancellation or adjudging/declaring null and void decree for money or an instrument
securing money or other property having such value.

The suit, in this case, was filed after the death of the testator and, therefore, the suit
property covered by the Will has also to be valued. Since Section 7 of the U.P. Amendment Act
specifically provides that payment of court fee in case where the suit is for involving
cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17
of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is
applicable in the present case, despite the fact that no consequential relief has been claimed.
Consequently, in terms of Section 7 of the U.P. Amendment Act, the court fees have to be
computed according to the value of the subject-matter and the trial court as well as the High
Court have correctly held so. We are of the view that the decision of this Court in Rajeev Singh
v. Lalit Kumar Singh, (2010) 12 SCC 112 is not applicable to the facts of the present case. First
of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a
case in which this Court was dealing with Section 7 and Schedule II Article 17, as amended in
the State of Punjab. The position that we get in the State of Punjab is entirely different from
the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for
consideration in that case. Consequently, in our view the said judgement would not apply to
the present case. The plaintiff, in the instant case, valued the suit at Rs. 30 lakhs for the
purpose of pecuniary jurisdiction. (WORDS 500)
 EXERCISE NO. 11 p (Part 8) Motor vehicle

In order to divine the intention of the legislature in the course of interpretation of the
relevant provisions, there can scarcely be a better test than that of probing into the motive and
philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the
same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle
insures his vehicle or not. If the vehicle is not insured, any legal liability arising on account of
third party risk will have to be borne by the owner of the vehicle. The provision has been
inserted in order to protect the members of the community travelling in vehicles or using the
roads from the risk attendant upon the user of motor vehicles on the roads. The law may
provide for compensation to victims of the accidents who sustain injuries in the course of an
automobile accident or compensation to the dependants of the victims in the case of a fatal
accident. However, such protection would remain a protection on paper unless there is a
guarantee that the compensation awarded by the courts would be recoverable from the
persons held liable for the consequences of the accident. A court can only pass an award or a
decree. It cannot ensure that such an award or decree results in the amount awarded being
actually recovered, from the person held liable who may not have the resources. To overcome
this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used
unless a third party insurance is in force. To use the vehicle without the requisite third party
insurance being in force is a penal offence. The legislature was also faced with another
problem. In order to make the protection real, the legislature has also provided that the
judgment obtained shall not be defeated by the incorporation of exclusion clauses other than
those authorised by Section 96 and by providing that except and save to the extent permitted
by Section 96 it will be the obligation of the insurance company to satisfy the judgment
obtained against the persons insured against third party risk.

In other words, the legislature has insisted and made it incumbent on the user of a
motor vehicle to be armed with an insurance policy covering third party risks which is in
conformity with the provisions enacted by the legislature. It is so provided in order to ensure
that the injured victims of automobile accidents or the dependants of the victims of fatal
accidents are really compensated in terms of money and not in terms of promise. Such a
benign provision enacted by the legislature having regard to the fact that in the modern age
the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable
fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the
purpose of the legislation. The provision has therefore to be interpreted in the twilight of the
aforesaid perspective. (WORDS 503)
 EXERCISE NO. 12 (Part 8) Criminal

Applying the aforesaid tests, let us now see whether the order impugned in the instant
case can be said to be an interlocutory order as held by the High Court. In the first place, so
far as the appellants are concerned, the police had submitted its final report against them and
they were released by the Judicial Magistrate. A revision against that order to the Additional
Sessions Judge preferred by the complainant had failed. Thus the appellants, by virtue of the
order of the Judicial Magistrate as affirmed by the Additional Sessions Judge acquired a
valuable right of not being put on trial unless a proper order was made against them. Then a
complaint was made by respondent 2 before the Judicial Magistrate which was also dismissed
on merits. The Sessions Judge in revision, however, set aside the order dismissing the
complaint and ordered further inquiry. The Magistrate on receiving the order of the Sessions
Judge summoned the appellants straightaway which meant that the appellants were to be put
on trial. So long as the Judicial Magistrate had not passed this order, no proceedings were
started against the appellants, nor were any such proceedings pending against them. It was
only with the passing of the impugned order that the proceedings started and the question of
the appellants being put up for trial arose for the first time. This was undoubtedly a valuable
right which the appellants possessed and which was being denied to them by the impugned
order.

It is difficult to hold that the impugned order summoning the appellants straightaway
was merely an interlocutory order which could not be revised by the High Court under sub-
sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate
summoning the appellants in the circumstances of the present case, particularly having regard
to what had preceded, was undoubtedly a matter of moment and a valuable right of the
appellants had been taken away by the Magistrate passing an order prima facie in a
mechanical fashion without applying his mind. We are, therefore, satisfied that the order
impugned was one which was a matter of moment and which did involve a decision regarding
the rights of the appellants. If the appellants were not summoned, then they could not have
faced the trial at all, but by compelling the appellants to face a trial without proper application
of mind cannot be held to be an interlocutory matter but one which decided a serious question
as to the rights of the appellants to be put on trial. However, we would like to reiterate that
when an order, not interlocutory in nature, can be assailed in the High Court in revisional
jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court.
In other words, inherent power of the Court can be exercised when there is no remedy
provided in the Code of Criminal Procedure for redressal of the grievance. (WORDS 495)
 EXERCISE NO. 13 (Part 8) Misc.

It will be useful to recall that prior to 1973 an accused could be detained for continuous
and consecutive periods of 15 days after judicial scrutiny and supervision. The Cr.P.C. of 1973
contains a new proviso which has the effect of circumscribing the power of the Magistrate to
authorize detention of an accused person beyond a period of 90 days where the investigation
relates to an offence punishable with death, imprisonment for life or imprisonment for a term
of not less than 10 years and beyond a period of 60 days where the investigation relates to
any other offence. Drawing support from the observations contained in the judgement of
Hon'ble Division Bench in Raghubir Singh vs. State of Bihar, (1986) 4 SCC 481, we are spurred
to extrapolate the proviso of Section 167 (2) of the Cr.P.C. 1973 to moderate Suspension
Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament
considered it necessary that a person be released from incarceration after the expiry of 90
days even though accused of commission of the most heinous crimes, a fortiori suspension
should not be continued after the expiry of the similar period especially when a Memorandum
of Charges/Chargesheet has not been served on the suspended person. It is true that the
proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of
human dignity as well as the right to a speedy trial should also be placed on the same
pedestal.

We, therefore, direct that the currency of a Suspension Order should not extend
beyond three months if within this period the Memorandum of Charges/Chargesheet is not
served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is
served a reasoned order must be passed for the extension of the suspension. As in the case in
hand, the Government is free to transfer the concerned person to any Department in any of its
offices within or outside the State so as to sever any local or personal contact that he may
have and which he may misuse for obstructing the investigation against him. The Government
may also prohibit him from contacting any person, or handling records and documents till the
stage of his having to prepare his defence. We think this will adequately safeguard the
universally recognized principle of human dignity and the right to a speedy trial and shall also
preserve the interest of the Government in the prosecution. We recognize that previous
Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and
to set time limits to their duration. However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and would not be contrary to the interests
of justice. Furthermore, the direction of the Central Vigilance Commission that pending a
criminal investigation departmental proceedings are to be held in abeyance stands superseded
in view of the stand adopted by us. (WORDS 490)
 EXERCISE NO. 14 (Part 8) Criminal

The learned Judicial Magistrate recorded the statement of the appellant and also called
for record of CID investigation in the matter of FIR No.73/2002 for the purpose of perusal and
evaluation. On receipt of the record, the learned Judicial Magistrate passed a speaking order on
02.05.2011 whereby he issued summons against accused nos.1 to 9 after finding a prima facie
case on the basis of complaint petition, statement of complainant as well as records of CID
investigation on which the complainant had placed reliance. Accused nos.1 to 8 preferred one
set of criminal revision and accused no.9 preferred another criminal revision before the
Sessions Court at Raipur. By two separate orders passed on same date i.e 30.11.2011, the
Sessions Court upheld the summoning order in respect of accused nos. 1 to 5 but set aside the
same in respect of accused nos. 6 to 8 and accused no. 9. Against these two orders, the
appellant preferred criminal revision petitions whereas accused nos. 1 to 5 also preferred a
Criminal Miscellaneous Petition bearing No. 45/2012 before the High Court. The High Court, by
common judgment and order dated 07.09.2012, which is under appeal, dismissed both the
criminal revision petitions preferred by the appellant against the grant of relief to accused nos.
6 to 9 and allowed criminal miscellaneous petition of accused nos. 1 to 5 by setting aside the
summoning order of the Magistrate and directing the appellant to appear before the Court of
Judicial Magistrate for adducing further evidence, if any, to support her allegation in the
complaint petition. The High Court thus remitted back the matter with various observations
requiring the appellant to produce alleged documents which could prove forgery and also to
send the same to expert for examination of the document and signature of the
complainant/appellant.

Having considered the details of allegations made in the complaint petition, the
statement of the complainant on solemn affirmation as well as materials on which the
appellant placed reliance which were called for by the learned Magistrate, the learned
Magistrate, in our considered opinion, committed no error in summoning the accused persons.
At the stage of cognizance and summoning the accused, the Magistrate is required to apply his
judicial mind only with a view to take cognizance of the offence or in other words to find out
whether prima facie case has been made out for summoning the accused persons. At this
stage, the learned Magistrate is not required to consider the defence version or materials or
arguments nor he is required to evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the exercise to find out at this stage
whether the materials will lead to conviction or not. It is also well settled that cognizance is
taken of the offence and not the offender. Hence at the stage of framing of charge an
individual accused may seek discharge if he or she can show that the materials are absolutely
insufficient for framing of charge against that particular accused. (WORDS 506)
 EXERCISE NO. 15 (Part 8) Criminal

In that case a complaint filed against the appellants who were bank officials was
quashed because the Court found that it was a counter-blast to action taken by them in their
official capacity for realizing the loan amount due from the complainant. On facts of that case,
it was easy to hold that the complaint was clearly an abuse of judicial process and it was also
found that averments and allegations in complaint did not disclose commission of any offence
by appellants. The Magistrate had failed to apply his mind to the case of the appellants and the
High Court had erred in not even adverting to the basic facts. The factual situation in the
present case is quite otherwise. Reliance was also placed on behalf of respondents upon
judgment in the case of State of Karnataka vs. Muniswamy & others, (1977) 2 SCC 699. In
that case, the accused persons pleaded for discharge before the Sessions Court which was not
accepted but the High Court quashed the proceedings on the ground that there was no
material on the record on the basis of which any tribunal could reasonably come to the
conclusion that the accused were in any manner connected with the incident leading to the
prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts
of that case showing lack of any data or material which could create a reasonable likelihood of
conviction for any offence in connection with attempted murder of the complainant. That
judgment also is of no help to the respondents herein in the light of allegations made in the
complaint, the statement of the complainant on solemn affirmation and the CID Report of
investigation on which the complainant placed reliance and which was perused by the learned
Magistrate.

These appeals are therefore allowed, the judgment and order under appeal passed by
the High Court is set aside. We also set aside the orders passed by the learned Sessions Court
dated 30.11.2011 whereby summoning order was set aside in respect of accused nos. 6 to 8
and accused no. 9. In other words, the order of summoning passed by learned Magistrate
dated 02.05.2011 is restored. Before parting with the order, we make it clear that any
observations in this order shall not prejudice the case of either of the parties before the court
below and the criminal complaint case of the appellant must proceed on its own merits strictly
in accordance with law. Although we have set aside the order granting relief to accused nos. 6
to 9 by the Sessions Court, in the interest of justice, we direct that in the facts of the case
accused nos. 6 to 9 shall be granted benefit of bail by the learned Magistrate if they appear
within 10 weeks and apply for same. The Magistrate shall of course be at liberty to set
reasonable conditions for such grant. (WORDS 488)
 EXERCISE NO. 16 (Part 8) Suit Matter

The factual matrix of the case is that the plaintiff-respondent filed a suit against the
defendant/appellant who is her son for recovery of possession and damages alleging that she
had purchased the suit property out of her own fund and she is the absolute owner, but part of
the property was under the illegal occupation of the appellant-defendant, who opposed the suit
contending that the suit property was a Hindu Undivided Family property having been
purchased in the name of the respondent using the funds of his grandfather, father and himself
and not purchased by the respondent as she was a housewife having no income. Appellant-
defendant further pleaded that though there was a dispute regarding his ownership and
possession, the same was settled between all the family members vide compromise deed
dated 22.10.1997. The respondent filed an application under Order XII Rule 6 of the Code of
Civil Procedure for passing a decree in her favour on the ground that a suit for partition, which
had earlier been filed by the appellant on the same ground i.e. that the suit property was a
HUF property, had been dismissed by the District Court vide judgment dated 8.9.2003 and
affirmed by the High Court vide judgment dated 12.9.2011 and the respondent contended that
the same amounted to an unequivocal admission by the appellant that the respondent was
entitled to possession. The trial court held that though the judgment dated 8.9.2003 of the
District Court and judgment dated 12.9.2011 of the High Court had rejected the plea of the
appellant that the suit property was a HUF property, these findings were made in a suit for
partition whereas the present suit was filed for recovery of possession and damages. The trial
court further held that for passing a decree under Order XII Rule 6 CPC, the defendant had to
make an unequivocal and unqualified admission. The appellant herein has not made such an
admission regarding his liability to pay the damages claimed by the respondent. The trial court
dismissed the application vide judgment dated 7.6.2013.

Aggrieved by the judgment of the trial court, the respondent filed a revision petition
before the High Court. The High Court while allowing the appeal and decreeing the suit with
costs held that the pleas taken by the appellant-defendant regarding the contribution made by
his grandfather, father and himself in the purchase of the suit property had been rejected by
the High Court vide judgment dated 12.9.2011 and the same will operate as res judicata. The
High Court further held that while there was no evidence for holding the suit property to be a
HUF property, the title deeds of the suit property and the land records stood in favour of the
respondent-plaintiff. The High Court noted that the only new plea taken by the defendant in his
written statement was that he was a co-owner vide compromise deed dated 22.10.1997 and
held that this plea was barred on the grounds of constructive res judicata having not been
raised earlier in the partition suit. (WORDS 506)
 EXERCISE NO. 17 (Part 8) Criminal

Negating the finding of the High Court as to the place of occurrence, learned counsel
submitted that the High Court did not consider the case in its proper perspective. A perusal of
entire evidence on record would clearly establish the place of occurrence and that the
prosecution has succeeded in proving the guilt beyond all reasonable doubt. The evidence on
record clearly reveals that the Investigating Officer had recovered the blood stained roll of the
clay and the plain clay from the place of incident, which was sent for examination wherein on
analysis, human blood was found on the same. Even the evidence of eye-witnesses PW-1 Bhola
Singh and PW-2 Baijnath Singh is very much consistent on the said aspect and, therefore, the
High Court was wrong to raise a dispute on the place of occurrence. Contending further on the
doubt raised by the High Court on the timing of incident, learned counsel submitted that the
High Court has laid a lot of emphasis on the presence of semi-digested food in the medical
report and has held that it totally contradicts the case of prosecution with regard to the time of
occurrence of the offence whereas the doctors in their examination-in-chief have clearly stated
that the incident might have taken place at 8 a.m. Thus the High Court erred in recording a
finding contrary to the evidence, particularly for the reason that in villages generally people
wake up early in the morning and start work early after having breakfast and, therefore,
presence of half-digested food cannot be a probable ground to arrive at a conclusion that the
deceased must have died at night. Learned counsel finally submitted that for all the aforesaid
reasons, the High Court ought not to have interfered with the well-reasoned judgment of the
trial Court. In support of his submissions, learned counsel placed reliance on various
authorities of this Court.

The learned counsel for the State supported the contentions of the appellant and
conceded that the High Court erred in acquitting the respondents-accused ignoring certain
relevant circumstances and material evidence which clearly established the guilt of the
accused. According to him, the High Court has utterly failed to consider the genuine facts that
the FIR was lodged at 9.15 a.m. immediately after the incident without any unreasoned delay,
evidence of both the eyewitnesses i.e. PW-1 and PW-2 were reliable as their statements were
completely corroborated by the medical evidence; the injured Ganga Singh though could not
be examined by the prosecution but had been medically examined by PW-6 on the same day
corroborating the prosecution’s story and the motive of the accused to commit the crime was
established as they were having enmity with the victim party in respect of a land dispute.
Learned counsel, therefore, prayed that considering the abundant and cogent evidence
available on record, this Court should exercise its powers under Article 136 of the Constitution
of India and set aside the impugned judgment and order by convicting the accused. (497)
 EXERCISE NO. 18 p (Part 8) Service

The question involved in the appeal is as to the right of the appellant to verify the
disability certificates issued by the Medical Board under the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996. The
respondents applied for BTC training course under the physically handicapped category on the
basis of certificates issued under the aforesaid Rules. It was claimed that they completed the
training and had been offered appointment in the primary schools run and managed by the
State Government. A complaint was received from Bhartiya Viklang Sangh of illegal
usurpation of the quota reserved for handicapped persons on the basis of fraudulently
procured certificates without suffering from the disability certified under the Rules of 1996. The
State Government issued an order dated 3.11.2009 making a provision for constitution of fresh
Medical Board in order to verify and assess the disability of the candidates. The candidates
questioned communication dated 15.7.2010 issued by the Director, State Council for
Educational Research & Training based upon the G.O. dated 3.11.2009 requiring them to
appear before the Medical Board constituted in order to assess the disability. Out of the 234
candidates selected under the handicapped category on being examined by the Medical Board,
it was found that 21% of the candidates were not handicapped.

A Single Bench of the High Court of Allahabad vide judgment and order dated
31.8.2010 dismissed the writ application holding that under the Rule framed in exercise of the
powers under sub-sections (1) and (2) of Section 73 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, the general eligibility to
apply for facilities, concessions and benefits admissible under the scheme of the Act is subject
to such conditions as the State Government may impose and the State Government has
imposed a condition in the order dated 3.11.2009 of constitution of the Medical Board for
verification of the disability. Even otherwise under the rules there can be a review of the
decision upon representation by the applicant and fresh order can be passed. Thus the
certificate issued is not final. On appeal being preferred, a Division Bench of the High Court of
Allahabad by the impugned order has allowed the appeal and has held that while the certificate
has been issued in accordance with the Rules of 1996, roving enquiry cannot be made until
and unless fraud has been detected, it is not permissible to reopen medical certification carried
out under the Rules of 1996. However the High Court has directed that a physical verification
may be made and if the candidate has not been issued certificate of disability or otherwise or
that he does not suffer from any disability so certified which entitles him to such a certificate,
in that event the candidate can be subjected to fresh medical test and not otherwise.
Accordingly, the directions by the Government in order dated 3.11.2009 and by the Director on
15.7.2010 for physical verification be construed in the aforesaid manner. (WORDS 503)
 EXERCISE NO. 19 (Part 8) Suit Matter

The respondents filed a suit for specific performance against the appellants herein
alleging that an agreement to sell dated 3rd June, 2002 was entered between them with
respect to the suit land. It was alleged that out of Rs. 3,00,000/-, Rs. 2,00,000/- had already
been paid by the plaintiffs on 3rd June, 2002 and as per agreement, the balance amount were
to be paid at the time of execution of sale deed i.e. on 20th December, 2002. It was further
alleged that later the defendant-appellants became dishonest and wanted to sell the land to
some other persons. Therefore, they had to file the suit. The defendants filed their written
statement contending in that they had never entered into any agreement to sell the suit land
to the plaintiffs. It was also contended that the alleged agreement to sell was a product of
forgery and fabrication and so it was null and void. The Trial Court having considered the
contention of both the parties, partly decreed the suit of the plaintiffs on 13th May, 2009 and
directed the defendants to pay Rs. 3,00,000/- to the plaintiffs along with simple interest @9%
per annum from the date of execution of the agreement to sell till the date of payment.

Being aggrieved by the Judgment and decree, the defendant-appellants filed Civil
Appeal No. 74 of 2009 on the ground that the alleged agreement to sell was not valid and legal
and the appellants never intended to sell the suit land. They further contended that there was
no signature of any of the attesting witness on the receipt of the earnest money and the land
was already under mortgage with the banks and so there was no question of any agreement to
sell and urged other grounds as well. The plaintiffs also filed a Special Civil Appeal No. 102 of
2009 against the judgment and decree dated 13th May, 2009 with prayer for direction of
execution of sale deed and transfer of possession of the suit land. Both the appeals were
disposed of by the First Appellate Court vide common judgment and order dated 17th
February, 2012. The Appellate Court while dismissing the appeal preferred by the defendant-
appellants, allowed the appeal preferred by the plaintiff-respondents and directed the
defendant- appellants to get the sale deed executed and registered in favour of the plaintiff-
respondents. The first appellate court as well as the High Court have decreed the specific
performance, ordering the defendants to enforce the agreement of sale. The Trial Court, on the
other hand, did not grant decree of specific performance, but instead passed a decree ordering
the defendants to return Rs. 3,00,000/- with interest to the plaintiffs on the ground that a
balanced approach should be taken as the plaintiffs should be protected and the defendant
nos. 1 to 3 should not be disproportionately penalized and that the administration of justice
requires that the defendant nos. 1 to 3 should be directed to return the amount of Rs.
3,00,000/- to the plaintiffs along with simple interest @ 9% per annum. (WORDS 507)
 EXERCISE NO. 20 (Part 8) Land Matter

The learned counsel for the appellant has contended that the decision to cancel the
selection of the appellant is void for breach of principles of natural justice as the appellant was
not afforded an opportunity of hearing by the so-called Review Committee and the same is
ultra vires of Article 14 of the Constitution of India. It was further contended that there is no
whisper of the Review Committee in the guidelines and therefore, it did not have the
jurisdiction to sit in appeal over the selection. It was argued that the land map issued by the
Consolidation Officer which was annexed by the appellant along with her application form,
showing the plot in question, has been divided into three parts, out of which the middle part
belongs to the appellant and that the husband’s and father-in-law’s consent was there for the
same and also, the land required was only 900 sq.m. but the appellant had proposed land of
an area of 2980 sq.m. and as such there was no occasion or requirement to submit the
consent letters of other co-owners when proposed land of appellant’s husband was in excess of
the required land. It was further argued that the order passed by the respondent no.3 is bad in
law as the High Court vide its order dated 12.10.2006 directed the competent authority of the
Corporation to decide the representation of the appellant and not respondent no. 3.

The learned counsel for the respondent on the other hand, contended that the
appellant did not submit complete documents as required and failed to submit the consent
letters of the co-owners of the proposed land, as a result of which the selection of the
appellant was cancelled by order dated 27.7.2006 and finally decided on 26.12.2006 as the
appellant overlooked the document dated 10.2.2006 which demonstrated that all the
documents were to be placed before the interview board. The condition of submission of
consent letters of all co-owners of the land was part and parcel of the conditions mentioned in
the advertisement dated 20.7.2005, a mandatory requirement under Clause 14 of the
dealership guidelines and it was apparent from paragraph 13 of the advertisement as well as in
the application form itself. It was submitted that since the consent letters of the co-owners of
the land were not submitted along with the application form, the selection was rightly cancelled
and 35 marks awarded to the appellant under the parameter of land and infrastructure facility
was wrong and the same was rectified by awarding zero marks. It was further submitted that
the order dated 27.7.2006 was passed after affording full opportunity of hearing to the
appellant. It was urged that the appellant has wrongly challenged the impugned orders as a
violation of her fundamental rights as the appellant was initially found eligible and was called
for the interview. After the interview, she was shown as selected and the visit to the land
mentioned along with the application for the dealership was accepted as sufficient and 35
marks were awarded in that regard. (WORDS 509)
 EXERCISE NO. 21 (Part 8) Service Matter

There is, in our opinion, considerable merit in the submission made by learned counsel
for the appellant Danveer Singh. Even Mr. Mangal Sharma appearing for the respondent fairly
conceded that on a true and proper construction of the order of this Court in Kailash Chand
Sharma’s case (supra), the benefit of appointment to Danveer Singh could not be denied
merely because the order passed in his favour had not been assailed by the State or because
he had not been impleaded as respondent in the Supreme Court in the appeal filed by the
State. The termination of services of Danveer Singh cannot be sustained. It was lastly
contended by learned counsel for the appellants that the appellants were appointed and have
served the schools to which they have been posted for nearly a decade. Their appointments
having been made on a bona fide error in the interpretation of the order of this Court but so
long as there was no fraud played by the appellants there was no reason why they should be
deprived of the benefit of such a long period of service. Alternatively, it was submitted that
since the appellants have crossed the upper age limit for recruitment as teachers, this Court
could consider issuing a direction for consideration of their cases in future recruitments in
relaxation of the age bar.

The appellants had been appointed and have served for nearly a decade but there are
allegations that such appointments were obtained by mis-representation of facts. We do not
consider it necessary to go into that aspect as we are informed that criminal cases have
already been registered against appellants. Any observation made by us whether or not the
appointments were obtained by mis-representation or by playing fraud upon the authorities
concerned is bound to cause serious prejudice to the appellants. All that we need to say is that
in the facts and circumstances of the case we do not consider the appellants to be entitled to
the relief of regularization of their services as prayed for by them. Having said that, we cannot
ignore the fact that the appellants will be left without any alternate avenues of employment at
this stage of their lives. Subject to any finding that may be recorded by a competent Court, as
regards the alleged fraudulent nature of the appointments secured by the appellants, we direct
that such of the appellants as were appointed as teachers and as have now been terminated
may be given a one-time concession of relaxation of the upper age limit and considered in the
next selection process in relaxation of rules regarding such age limit prescribed for
appointment as teachers. We make it clear that the above shall be a one-time relaxation for
the appellants to try their luck in the next selection process. The appellants shall file an
undertaking before the appointing authority concerned to the effect that the fresh appointment
if any given to them pursuant to the age relaxation shall stand terminated in case they are
found guilty and sentenced to imprisonment in the criminal case. (WORDS 512)
 EXERCISE NO. 22 p (Part 8) Education Matter

What the respondent had done by filing the writ petition was to highlight grave
irregularities committed by the Western Regional Committee of NCTE in granting recognition to
private institutions who did not fulfill the mandatory conditions relating to financial resources,
accommodation, library, laboratory and other physical infrastructure and qualified staff and
admitted students who had either not passed the entrance test or had not appeared for the
centralised counselling conducted under the directions issued by the State Government. The
respondent derived support from the orders passed by the High Court in various cases. The
statement made by Shri Hasib Ahmad, Member Secretary, NCTE, who appeared before this
Court on 21.7.2010 that effective steps have been taken after discovery of irregularities in the
grant of recognition to various private colleges in the State of Madhya Pradesh and other
States falling within the Western Region also gives credence to the respondents' assertion that
all was not well with the Western Regional Committee. In the pleadings filed before this Court,
the appellants have not suggested that the respondents had filed the writ petition to settle
score with any institution or with some ulterior motive. Learned counsel for the appellants also
did not make any such argument. Therefore, it cannot be said that the High Court committed
error by entertaining the writ petition and ordering an inquiry into the allegations of
irregularities committed in the matter of recognition and affiliation of self-financed private
institutions and admission of the students by such institutions. If the High Court had not
ordered re-scrutiny of the recognition/affiliation granted to the private institutions, the
irregularities committed by Western Regional Committee may never have seen the light of the
day and we do not see any reason to nullify the exercise undertaken by the High Court to
ensure that the provisions of the 1993 Act and the Regulations thereunder are strictly followed
by the authorities entrusted with the task of granting recognition and affiliation to the
institutions and colleges engaged in conducting teacher training courses.

The next question, which merits consideration is whether the impugned order is
contrary to the rules of natural justice i.e. audi alteram partem. In this context, it is apposite
to note that in the impugned order, the High Court has not discussed eligibility or entitlement
of any particular institution to get recognition or affiliation. What High Court has done is to
interpret the relevant statutory provisions in the light of the judgments of this Court and orders
passed by it in other writ petitions. After examining the provisions of the 1993 Act and the
Regulations, the High Court held that sub-section (3) of Section 14 and clauses of Regulations
7 and 8 of the Regulations are mandatory and that recognition can be granted to an institution
intending to undertake teacher training course only if the mandatory conditions are fulfilled.
The High Court also held that the examining body cannot grant affiliation to any institution
unless it is recognized by the NCTE. (WORDS 496)
 EXERCISE NO. 23 p (Part 8) Criminal Matter

From the record of the case it is evident that several letters have been written and/or
applications have been made by the petitioner making grievances about the threats
administered to him and his family by the accomplices of the accused. However, it is an
admitted position that no action is taken either by the SSP, Haridwar or by Government of
Uttarakhand either to afford protection to the petitioner and his family or to thwart such
threats made by the accused and/or their accomplices. It is relevant to notice that it was
claimed by the prosecution that the driver of the deceased was an eye-witness and it is the
case of the petitioner that due to threats, he turned hostile. The fact that the driver had turned
hostile is not in dispute. The fact that in spite of the receipt of several summons neither the
petitioner nor his wife nor his family members nor other witnesses have been able to go to
Haridwar to depose before the Court is not denied by the State Government. Therefore, this
Court is inclined to accept the case of the petitioner that he and other witnesses have not been
able to respond the summons only because of fear to their lives due to the threats
administered by the accomplices of the accused. There is no manner of doubt that because of
chasing of the petitioner and his relatives by the accomplices of the accused, they have not
been able to attend the Court and tender evidence. If this situation continues then the
prosecution would not be able to lead any evidence in such a brutal murder case and the
accused will have to be acquitted. The record indicates that four accused have been already
enlarged on bail but neither the police nor the State agency has taken any steps for the
purpose of getting their bail order cancelled.

Above judgment clearly enunciates the importance of witness in criminal trial. This is a
case of murder of a Superintending Engineer. There is no manner of doubt that brutal assault
was mounted on him which resulted into his death. The son of the deceased is seeking transfer
of proceedings on the ground of coercion and threat to the witnesses as well as doubtful
sincerity of the investigating agency and prosecuting agency. In effective cross-examination by
public prosecutor of the driver who resiled from the statement made during investigation
speaks volumes about the sincerity/ effectiveness of the prosecuting agency. The necessity of
fair trial hardly needs emphasis. The State has a definite role to play in protecting the
witnesses, to start with at least in sensitive cases. The learned Judge has failed to take
participatory role in the trial. He was not expected to act like a mere tape recorder to record
whatever has been stated by the witnesses. Section 311 of the Code and Section 165 of the
Evidence Act confers vast and wide powers on Court to elicit all necessary materials by playing
an active role in the evidence collecting process. (WORDS 505)
 EXERCISE NO. 24 (Part 8) Appointment Matter

From the two affidavits filed by the States, it is manifest that no procedure for
selecting practising advocates for appointment as law officers has been prescribed in the
States of Punjab and Haryana. No Selection or Search Committee is constituted or is even
envisaged. It is also clear that the two Governments do not consult the High Court before
finalizing the list of appointees. The affidavits do not, at the same time, indicate as to how in
the absence of any Selection or Search Committee, the State Government ensures a fair
selection in which they pick up the best available and willing to accept the assignment as State
counsel. The affidavits place the burden of making the process of fair selection upon the
wisdom of the Advocates General of the two States. The affidavits do not state whether the
Advocate General has, in turn, constituted a Committee or followed any procedure or
prescribed or formulated any norms for assessing the merit of those willing to work as State
counsel. The affidavits do not even say if any applications are invited for appointment as State
counsel. All told, the appointments are based entirely on how the Advocate General advises the
State Government on the subject without the Advocate General in turn conducting a selection
process, assessing inter se merit on an objective basis or maintaining any record of any such
process having been undertaken. The affidavits also do not rule out the possibility of the
Governments themselves appointing persons over and above those recommended by the
Advocate General on the basis of what the affidavit of the State of Punjab describes as
“discreet enquiries”. The affidavits suggest that the process has been going on for past many
years. The States also claim that the engagement of State counsel is a professional
engagement meaning thereby that the States have no obligation either to prescribe a
procedure or follow any definite method while making such appointments. The State of Punjab
has asserted that the process of selection and appointment cannot be regulated either by
policy or by any statute.

We have not been able to persuade ourselves to accept the view that even when the
appointments are made to offices heavily remunerated from the public exchequer, the same
can or ought to remain unregulated. That is particularly so when those appointed are expected
by the very nature of their appointment to discharge important public function affecting not
only State interest but the quality of justice which the courts administer. There is in the case of
Punjab and Haryana not even a semblance of any selection process in the matter of
appointment of those chosen for the job leave alone a process that is credible in terms of its
fairness and objectivity. The practice of making appointments in disregard of what is expected
of a functionary sensitive to the demands of fairness and equality of opportunity even when in
vogue for long, runs contrary to the true legal position settled by a long line of decisions to
which we shall presently refer. (Words 508)
 EXERCISE NO. 25 (Part 8) Service Matter

The argument of the learned senior counsel for the appellant was that what is not
prohibited may be taken as permitted and when the appellant satisfied the requirements of
Section 24, he was entitled for enrolment. This argument overlooks a positive requirement as
already stated above contained in para 2 of Rule 49 that unless a concerned State Bar Council
has framed rules entitling Law Officers to enroll as Advocates even though they are full-time
employees, they are not entitled to enrolment. The contention that the respondent could not
have cancelled enrolment of the appellant almost after a decade and that the respondent was
estopped from doing so on the principle of promissory estoppel, did not impress us for the
simple reason that the appellant suffered threshold bar and was not at all eligible to be
enrolled as an Advocate and his enrolment itself was clearly contrary to Rule 49 of the Rules in
the light of the facts stated above. Hence neither the principles of equity nor promissory
estoppel will come to the aid of the appellant. Similarly, there is no substance in the argument
of the learned counsel for the appellant that removal of the name of the appellant from the roll
of the State Bar Council amounted to a punishment under Section 35 (d) of the Act without
following the procedure. It is clear from the facts of the case that action was not taken against
the appellant on the ground of misconduct by initiating any disciplinary proceedings. But in this
case the very enrolment of the appellant as an advocate itself was contrary to law and he was
not at all entitled for enrolment. By cancellation or withdrawal of enrolment things were only
set right and the mistake committed on misunderstanding was corrected.

We find no merit in the ground urged that the appellant was discriminated against the
prosecutors and the Government pleaders. The duties, nature of work and service conditions of
the appellant, details of which are already given above, are substantially different from the
duties and nature of work of prosecutors and Government pleaders particularly in relation to
acting and pleading in court. Thus the appellant stood on a different footing. The High Court in
paragraphs 24 to 26 has dealt with this aspect of the case and rightly rejected the argument
based on the ground of discrimination. The last and alternative submission of the learned
counsel for the appellant was that in case the appellant gives up his full-time employment or
ceases to be employee of the Board, he may be allowed to practise maintaining his seniority as
an advocate from the date of his enrolment on the rolls of the respondent; if the enrolment is
cancelled or withdrawn he would lose the seniority for no fault of him. There is a difficulty in
accepting this argument. When the appellant was not entitled for enrolment and his enrolment
itself was opposed to law, such enrolment was non-est. Hence the question of maintaining his
seniority on the rolls of the respondent does not arise. (WORDS 510)
 EXERCISE NO. 26 (Part 8) Tax Matter

The argument that the relief should be denied to the respondents on the ground of
delay and laches in approaching the High Court by filing writ petitions claiming refund is
equally unsustainable. The claims for refund were made by the respondents within a
reasonable time after the judgment was rendered by this Court in Saraswati Sugar Mill case
aforementioned. The respondents have paid water cess under protest. The collection of water
cess in view of law laid down by this court was clearly illegal and without authority of law. It is
also not the case that where the rights are created in third parties on account of delay, if any,
in approaching the court and that by entertaining the writ petitions, the rights of third parties
are prejudiced. In this view, there was no question of delay and laches on the part of the
respondents on the facts found and circumstances stated. The respondents had specifically
pleaded that they did not pass on the liability of the water cess on their customers; it appears
that this contention was not denied by the petitioners before the High Court. On the other
hand, the only plea taken by the petitioners was that money had been passed to the Central
Government under Section 8 of the Act. It was brought to the notice of the Court by the
respondents that 65% of the sugar was sold by the respondents through public distribution
system under the Essential Commodities Act. Hence there was no question of unjust
enrichment also in these cases. The stand of the petitioners that the respondents were not
entitled for refund on the ground that the amount of cess collected was passed on to the State
Government, which in turn gave it to the Central Government and the Central Government has
appropriated the same by passing on money back to various State Pollution Control Boards
does not help them.

Before the High Court, they only stated that they made reference to the Government in
regard to the claim made by the respondents for refund and they were waiting for response. It
was also not made out by the petitioners as to how they had difficulties in making the refund
to the respondents. It may also be kept in view that immediately after the notices were issued
demanding water cess they were challenged. Even in some cases interim orders were also
passed in the High court; the amount of water cess was paid under protest. So, in this
situation when finally this Court held that the very collection of water cess was without the
authority of law, the claim of the respondents for refund cannot be denied merely on the
ground that the petitioners passed on the money to the State Government and in turn the
money was sent to the Central Government and later the Central Govt. appropriated the same
by passing it back to State Pollution Control Boards. The High Court, in our view, was right in
allowing the claims of the respondents made for refund in the writ petitions. (WORDS 510)
 EXERCISE NO. 27 (Part 8) Tax Matter

The High Court stated in the judgment and order under challenge that admittedly the
assessee was the Oxford University Press and not the University of Oxford, but there was a
finding of the Tribunal to the effect that the assessee was a part of the University of Oxford. In
its view, what was necessary for availing the benefit of the exemption under Section 10(22)
was that the income should be the income of a University or an educational institution existing
solely for educational purposes and not for the purposes of profit. In the context and setting of
clause (22), the word existing in the expression existing solely for educational purposes and
not for the purposes of profit meant and referred to the existence of such University or
institution solely for educational purposes in India. In other words, a University or an
educational institution, whether established in India or abroad, had to retain the character of a
University or an educational institution in India, and the income in respect of which the
exemption was claimed had to be income derived by it in its capacity as a University or an
educational institution. If it did not carry on its activities as a University or educational
institution in India, it could not be regarded as a University or educational institution existing
solely for educational purposes and hence the income derived by it from any other activities
would not qualify for exemption under Section 10(22). The assessee was the Oxford University
Press and not the University of Oxford. The University of Oxford did not exist in India nor did it
carry on the activities of a University in India. What existed in India was the Oxford University
Press. The only activity carried on by the Press in India was the activity of printing and
publishing books and selling them as well as publications of other publishers to earn profit. This
activity amounted to carrying on the business of selling or supplying books for profit. The
income made therefrom could not be regarded as the income of a University existing solely for
educational purposes merely because the assessee claimed to be a part of the University of
Oxford, which did not exist in India. The High Court added that if it does not exist as a
University or an educational institution solely for such purposes and does not carry on the
primary activities of a University or educational institution but merely runs the business of
press in India for printing and publishing books and selling and supplying the same as well as
books published by other publishers for the purpose of profit, it cannot be held to be a
University within the meaning of Section 10(22) of the Act merely by reason of the fact that it
is run by a University existing outside India for educational purposes or that it is a part of such
University and has no independent existence of its own and all its income is the income of the
said University. (WORDS 502)
 EXERCISE NO. 28 (Part 8) Service Matter

This batch of appeals is directed against the judgment of the Division Bench of Punjab
and Haryana High Court. By the impugned judgment, selection to the post of constables has
been quashed and the State Government has been directed to have a fresh set of Rules for
governing the recruitment to the post of constable as the earlier rules in force has been struck
down. The recruitment to the post of Constable was being governed by Punjab Police Rules of
1934 which had been framed under Section 7 of the Punjab Police Act. Under the Rules in
force, there was no requirement of making any public advertisement inviting applications nor
there was any requirement to intimate the Employment Exchange with regard to the vacancies
likely to be filled up. The last appointment to the post of constable under the aforesaid set of
rules had been made in the year 1992. The present recruitment process started in July 1995
when 703 vacancies in the rank of constables were found available. In accordance with the
procedure prescribed under Rules 1934, selections were made on the spot after examining the
physical fitness of the candidates at different District Headquarters. Be it stated that
subsequent to 6.7.1995 more than 800 posts were created and therefore in all about 1600
posts were filled up by adopting the same procedure, as stated earlier. Some of the
unsuccessful candidates who had appeared in the process of selection as well as the Union filed
writ petitions assailing the entire process of selection. Allegations were made that the process
of selection has been vitiated on account of several infirmities including the vague assertion of
mala fide and fraud but essential allegation was that the selection could not have been made
without due publicity either in the newspaper or without notifying the vacancies to the
Employment Exchange.

By the impugned judgment, the High Court has come to the conclusion that the
process of selection has been vitiated because there was no advertisement and no due
publicity inviting applications from the candidates at large. Out of the two learned Judges,
though one of the learned Judge came to the conclusion that the allegations of mala fide and
fraud have not been established by the appellant and the selection process cannot be held to
be unfair, the other learned Judge, however, came to the conclusion that there has been an
unfair selection and the process of selection is vitiated. Both the learned Judges, however,
agreed with the conclusion that there has been several lapses in the process of selection and
ultimately the process of selection was quashed and direction has been issued, as stated
earlier. In accordance with said direction, the State of Haryana has framed a set of Rules in
exercise of powers conferred under the proviso to Article 309 of the Constitution read with
Sections 2 and 7 of the Police Act, 1861. The Rules thus framed is called the Punjab Police
(Haryana Amendment) Rules, 1998. (WORDS 496)
 EXERCISE NO. 29 (Part 8) Compassionate Appointment

While considering the rival submissions, it is necessary to bear in mind that

compassionate appointment is an exception to the general rule that appointment to any public
post in the service of the State has to be made on the basis of principles which accord with
Articles 14 and 16 of the Constitution. The dependants of a deceased employee of the State
are made eligible by virtue of the policy on compassionate appointment. The basis of the policy
is that it recognizes that a family of a deceased employee may be placed in a position of
financial hardship upon the untimely death of the employee while in service. It is the
immediacy of the need which furnishes the basis for the State to allow the benefit of
compassionate appointment. Where the authority finds that the financial and other
circumstances of the family are such that in the absence of immediate assistance, it would be
reduced to being indigent, an application from a dependent member of the family could be
considered. The terms on which such applications would be considered are subject to the policy
which is framed by the State and must fulfill the terms of the policy. In that sense, it is a well-
settled principle that there is no right to compassionate appointment, but where there is a
policy, a dependent member of the family of a deceased employee is entitled to apply for
compassionate appointment and seek consideration of the application in accordance with the
terms and conditions.

In view of the clear terms of the policy, we are of the view that the High Court was in
error in issuing a mandamus to the Government to disregard its policy. Such direction could
not have been issued by the High Court. The High Court has drawn sustenance in issuing
mandamus in the above terms on a decision of this Court in Govind Verma (supra). That was a
case of compassionate appointment where in the course of the proceedings before the High
Court, a learned Single Judge had directed the Life Insurance Corporation, which was the
employer of the deceased employee to make an enquiry and submit a report whether the
members of the family engaged in gainful employment were also supporting the family of the
deceased employee. This Court, in an appeal against the judgment of the High Court rejecting
the petition for compassionate appointment, observed that the officer who had enquired into
the matter in pursuance of the order of the learned Single Judge completely omitted to furnish
any report on the points which were required by the High Court to be investigated. The High
Court rejected the petition on the ground that the family was in receipt of family pension and
other amounts towards terminal benefits. Reversing the view of the High Court, a two-Judge
Bench of this Court held that it was wholly irrelevant for the departmental authorities and the
learned Single Judge to take into consideration the amount which was being paid as family
pension to the widow of the deceased. (WORDS 507)
 EXERCISE NO. 30(Part 8) Criminal Matter

Appearing for the State of Haryana, Mr. Kamal Mohan Gupta, learned counsel did not
seriously dispute the submissions made by Mr. Malhotra as far as the appellant No.1-Raju, was
concerned having satisfied himself regarding the juvenility of the said appellant upon due
inquiry. However, as far as the second appellant-Mangli is concerned, Mr. Gupta submitted that
he had been rightly convicted under Section 302 with the aid of Section 34 IPC. Mr. Gupta
submitted that the role attributed to the appellant No. 2 was not as innocent as had been
attempted to be made out by Mr. Malhotra. On the other hand, there was a background of the
incident involving the misbehaviour of the said appellant with the women folk at the marriage
ceremony of the son of Parwati which triggered the incident. It was submitted that the
subsequent incident culminating in Rajan's death was not an isolated incident but a fall out of
the earlier incident. He also urged that the common motive to kill the victim would also be
evident by the fact that after Rajan was initially assaulted and tried to run away, he was
chased by all the four accused including the appellant No.2, which ultimately resulted in his
death.

We have carefully considered the submissions made on behalf of the respective parties
and the evidence adduced on behalf of the prosecution and have arrived at the conclusion that
the conviction of both the appellants under Section 302 IPC with the aid of Section 34 is not
warranted. As has been pointed out, the ultimate assault on Rajan causing his death was the
culmination of an incident which had occurred earlier during the marriage ceremony of the son
of Parwati where the women folk, who were participating in the festivities, were teased by the
deceased in an inebriated state. The resultant fall-out was the immediate response to the
said incident with the intention of preserving the honour and dignity of the said women. It is on
account of the said incident that subsequently the accused persons assaulted Rajan and when
he tried to run away, they chased him and on being caught, he was fatally injured by Anil @
Balli and Sucha Singh with knives. Although, it has been urged that the appellants herein had
knowledge that both Anil and Sucha Singh were carrying knives, the same is not borne out
from the evidence and their role in the incident in chasing the victim and, thereafter, holding
him, was more likely to teach him a lesson as was sought to be projected as his defence. In
the absence of any common intention, the conviction of the appellants under Section 302 with
the aid of Section 34 cannot be sustained. It is no doubt true that the evidence of PW.5 the
complainant and PW.7 another eye-witness was corroborated by the injuries on the body of the
victim, but that by itself would not establish common intention as far as the appellants in the
present appeal are concerned. (WORDS 500)
 EXERCISE NO. 31 (Part 8) Criminal Matter

At the outset, it is necessary to mention that the principal witnesses are PW-1 to PW-3
and the trial court as well as the appellate court has given credence to their evidence. PW-1,
Charan Singh, the author of the FIR, has testified that he got the FIR of the incident prepared
on the spot itself and then lodged it at Police Station in the same night by handing over it to
the Head Constable Devi Ram, PW-4, who thereafter made entry in the general diary. He has
deposed that the accused Dharam Pal, Mahendra and Vijendra are real brothers and they
belonged to his own village; that about nine years ago prior to the date of occurrence, Gaje
Singh, real brother of the accused, Dharam Pal, was murdered for which he and Hukam Singh,
real brother of the deceased Badan Pal, and others were put on trial and eventually they were
acquitted. He has stated in his evidence that since then the accused persons brewed enmity
against them. It has also come out in his evidence that the deceased was a student of High
School and used to stay in the kotha where the tube-well situate for availing the facility of
electric light for his studies. PW-2, Gajpal, cousin of the deceased Badan Pal, has clearly stated
that he along with his cousin Nepal Singh left the village at about 7 p.m. carrying the meals for
Badan Pal, who was staying inside the kotha of the aforesaid tube-well. He has further deposed
that Gopal, PW-3, accompanied them and after they reached the place, they heard a sound of
gun firing from inside the kotha of the tube-well. He has deposed that he has seen all the four
accused persons coming out of the northern side of the said kotha of the tube-well and he had
also seen the accused Dhani Ram and Dharam Pal were armed with pistols and the accused
Mahendra and Vijendra carried lathi and ballam respectively. He had identified the accused
persons because of the electric bulb burning in the kotha and further he had a torch light with
him.

Though there has been roving cross-examination with regard to him seeing the
accused persons coming out of the kotha, nothing has been really elicited to make his
testimony impeachable. PW-3 Gopal, has also identified the accused person and supported the
testimony of PW-2. That apart, the said witness has lent support to the case of the prosecution
and corroborated in each necessary particulars that has been stated by the PW-2. It was
contended before the learned trial judge that PW-2 and PW-3 are extremely interested
witnesses and further PW-3 was a chance witness. The learned trial judge did not find any
substance in the said contention inasmuch as there had been identification of the accused
persons, vivid description of the weapons they carried and the recovery. Be it noted that
though the pistol was not recovered, two cartridges were recovered from the spot of the
occurrence. (WORDS 501)
 EXERCISE NO. 32 (Part 8) Enquiry Matter

There is no quarrel with the proposition that in cases where the High Court finds the
enquiry to be deficient either procedurally or otherwise the proper course always is to remand
the matter back to the concerned authority to redo the same afresh. That course could have
been followed even in the present case. The matter could be remanded back to the Disciplinary
Authority or to the Enquiry Officer for a proper enquiry and a fresh report and order. But that
course may not have been the only course open in a given situation. There may be situations
where because of a long time lag or such other supervening circumstances the writ court
considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by
the competent authority. That is precisely what the High Court has done in the case at hand.
The High Court has taken note of the fact that the respondent had been placed under
suspension in the year 2004 and dismissed in the year 2005. The dismissal order was
challenged in the High Court in the year 2006 but the writ petition remained pending in the
High Court for nearly seven years till 2013. During the intervening period the respondent
superannuated on 30th November, 2011. Not only that he had suffered a heart attack and a
stroke that has rendered him physically disabled and confined to bed. The respondent may by
now have turned 65 years of age. Any remand either to the Enquiry Officer for a fresh enquiry
or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus
be very harsh and would practically deny to the respondent any relief whatsoever. Superadded
to all this is the fact that the High Court has found that there was no allegation nor any
evidence to show the extent of loss, if any, suffered by the bank on account of the alleged
misconduct of the respondent. The discretion vested in the High Court in not remanding the
matter back was, therefore, properly exercised.

The next question is whether the respondent would be entitled to claim arrears of
salary as part of service/retiral benefits in full or part. The High Court has been rather
ambivalent in that regard. We say so because while the High Court has directed release of
service/retiral benefits, it is not clear whether the same would include salary for the period
between the date of removal and the date of superannuation. Taking a liberal view of the
matter, we assume that the High Court’s direction for release of service benefits would include
the release of his salaries also for the period mentioned above. We are, however, of the
opinion that while proceedings need not be remanded for a fresh start from the beginning,
grant of full salary for the period between the date of dismissal and the date of superannuation
would not also be justified. (WORDs 491)
 EXERCISE NO. 33 (Part 8) Service Matter

The respective respondents in the remaining eight appeals claim that they were
appointed in the year 1995 as part-time cooks/chowkidars in government hostels run by Social
Welfare Department. They claim that their appointment orders were issued by the respective
Mess Committee of the hostel where they were employed; that the State Government was
paying a fixed amount of Rs.600/- per month in the form of aid to the concerned Hostel Mess
Committee which, in turn, was being paid to them as remuneration. The State Government
issued an order dated 28.12.1998, stopping the practice of appointing Class IV employees on
consolidated wages and to remove any person appointed on that basis. By subsequent circular
dated 21.1.1999, the District Social Welfare Officers were directed to remove part-time
chowkidars/cooks employed by the Department with effect from 1.2.1999 and replace them by
ex-servicemen or widows of ex-servicemen. In view of the Government directives, the
respondents apprehended their services may be dispensed with. The respondents submitted
that this Court had earlier approved a scheme under which part-time cooks and chowkidars
who were working as on 1.5.1995 were regularized; and that as they were all appointed
subsequent to 1.5.1995 and were not therefore covered under the said scheme, a fresh
scheme should be framed to benefit them. They therefore sought a declaration that the
circulars dated 28.12.1998 and 1.2.1999, were invalid and a direction for regularization by
framing an appropriate scheme similar to the scheme framed by the State Government in
pursuance of the order dated 26.5.1995 of the Rajasthan High Court.

In the first seven appeals, a learned Single Judge by a common order dated 7.5.2003
allowed the writ petitions. He held that the writ petitioners working on the posts of
Superintendent, Cooks and Chowkidars are entitled to salary on par with the salary which was
paid to their counterparts holding similar posts in the hostels run by the Social Welfare
Department of the State Government with effect from the dates of their respective writ
petitions. He also held that any attempt to terminate the services of employees working in the
hostels on consolidated salary was unjust and illegal and therefore the writ petitioners should
be permitted to continue to work on the posts which they were holding as on the date of filing
their respective writ petitions. He directed the State Government to frame a scheme on the
same lines in which the State Government had earlier framed a scheme relating to part-time
cooks and chowkidars who were serving as on 1.5.1995. He also quashed the orders dated
28.12.1998 and 21.1.1999, which directed chowkidars and cooks employed on consolidated
wages should be removed with immediate effect from 1.2.1999 and should be replaced by ex-
servicemen or widows of ex-servicemen. The scheme referred to by the learned Single Judge
was the scheme which was framed by the State Government in pursuance of the directions of
the Rajasthan High Court in Anshkalin Samaj Kalyan Sangh (supra). (WORDS 490)
 EXERCISE NO. 34 (Part 8) Marriage Matter

We have considered the submissions made by the learned counsel. The High Court,
upon close scrutiny of the evidence, concluded that there was evidence of a quarrel between
the husband and wife about six months prior to the occurrence, which had been settled with
the intervention of the eldest. There were complaints that the deceased did not know how to
do any household work. The in-laws had also complained that she was not well mannered.
Their ill-treatment of the wife escalated after the murder of her father by extremists. It was at
that stage the husband had started demanding that the deceased should claim one of the two
houses left behind by her father in Village Nabipur. About ten months prior to her death, she
was actually sent by the appellants to demand possession of the house. The appellant and his
parents were suspecting that the sister of the deceased, Gurjit Kaur had taken everything after
the death of the father of the deceased. The appellant and his parents were insisting that the
house be legally conveyed in the name of the deceased. However, mother of the deceased left
for England after the first death anniversary of her husband in May, 1988. The High Court, on
examination of the entire evidence, concluded that the deceased had not committed suicide on
account of demands for dowry but due to harassment caused by her husband in particular. The
deceased had committed suicide by drinking phosphorus poison. In view of the findings
recorded, the High Court converted the conviction of the appellant from one under Section
304-B IPC to one under Section 306 IPC.

We do not find much substance in the submission of Mr. Mahajan that the High Court
could not have convicted the appellant under Section 306 IPC as the charge had been framed
under Section 304-B IPC. On scrutiny of the entire evidence, the High Court has come to the
conclusion that the deceased had not committed suicide on account of demands for dowry but
due to harassment caused by her husband in particular. The harassment by the appellant had
compounded the acute depression from which the deceased was suffering after the murder of
her father. There was no evidence of any demand for dowry soon before the death, and there
was no demand whatsoever that the house in question should be transferred to either of the
accused. Under Section 304-B IPC, the cruelty or harassment by her husband or any relative of
her husband or in connection with any demand for dowry is a prelude to the suicidal death of
the wife. Such suicidal death is defined as `dowry death'. The High Court has recorded a firm
finding that the harassment was not for or in connection with any demands for dowry. But, at
the same time, the High Court has concluded that the wife committed suicide due to the
harassment of the appellant in particular. In such circumstances, the High Court was,
therefore, fully justified in convicting the appellant under Section 306 IPC. (WORDS 505)
 EXERCISE NO. 35 (Part 8) Misc. Matter

We are unable to accept the submissions raised by learned Senior counsel. Though
there was one general charge of conspiracy, which was allied in nature, the charge was
qualified with the substantive charge of defalcation of a particular sum from a particular
treasury in particular time period. The charge has to be taken in substance for the purpose of
defalcation from a particular treasury in a particular financial year exceeding the allocation
made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders
etc. The sanctions made in Budget were separate for each and every year. This Court has
already dealt with this matter when the prayers for amalgamation and joint trial had been
made and in view of the position of law and various provisions discussed above, we are of the
opinion that separate trials which are being made are in accordance with provisions of law,
otherwise it would have prejudiced the accused persons considering the different defalcations
from different treasuries at different times with different documents. Whatever could be
combined has already been done. Each defalcation would constitute an independent offence.
Thus, by no stretch, it can be held to be in violation of Article 20 (2) of the Constitution or
Section 300 Cr.P.C. Separate trials in such cases is the very intendment of law. There is no
room to raise such a grievance. Though evidence of general conspiracy has been adduced in
cases which have been concluded, it may be common to all the cases but at the same time
offences are different at different places, by different accused persons. As and when a separate
offence is committed, it becomes punishable and the substantive charge which has to be taken
is that of the offence under the P.C. Act etc. There was conspiracy hatched which was
continuing one and has resulted into various offences. It was joined from time to time by
different accused persons, so whenever an offence is committed in continuation of the
conspiracy, it would be punishable separately for different periods as envisaged in Section 212
(2), obviously there have to be separate trials. Thus it cannot be said to be a case of double
jeopardy at all. It cannot be said that for the same offence the accused persons are being tried
again.

Learned senior counsel has relied upon the decision of this Court in Neha Parihar
(supra) in which the charge disclosed one single conspiracy, although spread over several
years. There was only one object of the conspiracy and that was cheating members of the
public. The fact that in the course of years others joined the conspiracy or that several
incidents of cheating took place in pursuance of the conspiracy, does not change the
conspiracy and does not split up a single conspiracy into several conspiracies. The accused
persons raised the submission as to misjoinder of the charges. This Court has dealt with the
matter thus : (WORDS 490)
 EXERCISE NO. 36 (Part 8) Misc. Matter

This Court in a large number of cases has deprecated the practice of the High Courts
entertaining writ petitions questioning legality of the show cause notices stalling enquiries as
proposed and retarding investigative process to find actual facts with the participation and in
the presence of the parties. Unless, the High Court is satisfied that the show cause notice was
totally non est in the eye of law for absolute want of jurisdiction of the authority to even
investigate into facts, writ petitions should not be entertained for the mere asking and as a
matter of routine, and the writ petitioner should invariably be directed to respond to the show
cause notice and take all stands highlighted in the writ petition. Whether the show cause notice
was founded on any legal premises is a jurisdictional issue which can even be urged by the
recipient of the notice and such issues also can be adjudicated by the authority issuing the
very notice initially, before the aggrieved could approach the Court. Further, when the Court
passes an interim order, it should be careful to see that the statutory functionaries specially
and specifically constituted for the purpose are not denuded of powers and authority to initially
decide the matter and ensure that ultimate relief which may or may not be finally granted in
the writ petition is accorded to the writ petitioner even at the threshold by the interim
protection granted. In the instant case, the High Court has not indicated any reason while
giving interim protection. Though, while passing interim orders, it is not necessary to
elaborately deal with the merits, it is certainly desirable and proper for the High Court to
indicate the reasons which has weighed with it in granting such an extra ordinary relief in the
form of an interim protection. This admittedly has not been done in the case at hand. The High
Court was justified not only in entertaining writ petition but also in granting the interim
protection.

While issuing notice on 7.7.2003, this Court had granted interim stay of the impugned
interim order. The respondent had entered appearance and we have heard the learned senior
counsel on either side. In the fitness of things, taking into account the above circumstances,
we dispose of the appeal with a direction that the proceedings emanating from the show cause
notice shall be continued, but the final order passed pursuant thereto shall not be
communicated to the respondent no. 1 without leave or further orders of the High Court. The
writ petition shall be disposed of on merits in accordance with law. Any observation made in
this appeal shall not be construed to be expression of any opinion on the merits of the matter
pending before the High Court. Since the controversy is of a very limited as well as serious
nature, the High Court may explore the possibility of early disposal of the writ petition. The
appeal is allowed to the extent indicated with no order as to costs. (WORDS 500)
 EXERCISE NO. 37 (Part 8) p CBI Matter

In view of the averments made in the applications, we are satisfied that delay has been
sufficiently explained and considering the facts and circumstances of the case, gravamen of the
matter and also the divergent views taken by the same Judge of the High Court in the same
case vis a vis different accused persons on same question, we consider it our duty not to throw
away petition on the ground of delay. The explanation offered by the CBI of movement of file
so as to condone the delay so as to subserve the ends of justice, deserves to be accepted. No
doubt about it that the CBI ought to have acted with more circumspection and ought to have
followed the CBI Manual. It is regrettable that we are receiving majority of the special leave
petitions filed in this Court barred by limitation not only on behalf of the Government but also
by the other private litigants. Not only that the special leave petitions are preferred with the
delay but in refiling also enormous time is consumed and this Court in order to advance
substantial justice is not throwing away cases only on limitation. Sufficiency of cause has to be
judged in a pragmatic manner so as to advance cause of justice. No doubt about it that
litigants are supposed to act with circumspection within limitation and that there should not be
delay and laches and State machinery should not be differentiated vis a vis with the private
individual in the matter of filing the appeals, petitions etc., however, in the facts and
circumstances of the case and considering the averments in the applications, we deem it
appropriate to condone the delay in filing the appeals in this court.

In this case, we are surprised at the conduct of the CBI in such important matters how
such delay could take place. The CBI ought to have been careful in filing the Special Leave
Petitions within limitation considering the factual matrix of the case. The criticism made by the
senior counsel for respondent is not wholly unjustified. CBI ought to be guided by its Manual.
If CBI fails to act timely, peoples’ faith will be shaken in its effectiveness. Let the Director of
CBI look into the matter and saddle the responsibility on a concerned person. In important
cases Director, CBI should devise methodology which should not be cumbersome as reflected
in these cases, otherwise in future, Director, CBI cannot escape the responsibility for delay in
such cases to be termed as deliberate one, which is intolerable. Being the head of the
institution, it was the responsibility of the Director, CBI to ensure that appeals were filed within
limitation. There should not have been delay in filing special leave petitions at all. Resultantly,
we set aside the impugned judgments and orders passed by the High Court, allow the appeals
and direct the trial court concerned to expedite the trial and to conclude the same as far as
possible within a period of nine months from today. (WORDS 505)
 EXERCISE NO. 38 (Part 8) SC/ST Matter

By reason of the impugned judgment, a Division Bench of the High Court held that the
cut off date fixed by the respondent Bank was valid. It further held that the Bank did not have
any questionable motive in fixing the said cut off date and the explanation given by it being a
plausible one could not be rejected. The contention raised by the Association to the effect that
the said circular dated 8.11.1988 was issued for the purpose of frustrating the reservation
policy did not find favour with the High Court, as upon a perusal of the select panel, it became
explicit that the candidates from the SC categories had been appointed. The High Court further
observed that even if in place and stead of 31.12.1989 being the cut off date the same was to
be taken as 31.3.1990, nothing had been brought on records to show that any Scheduled Tribe
candidate would have become eligible. The High Court further opined that the Scheduled Tribe
candidates having been appointed sometimes in the year 1994 onwards, the requirements of
six years service as set out in the rules could not have been waived by the Bank by its
impugned resolution. It, however, came to the conclusion that reservation policy being in issue
in the said writ petition, the challenges raised therein should not limit the scope thereof.
Keeping in view the subsequent action taken by the Bank including the issue of dereservation
and appointment of open category candidates to the respective posts pursuant to the decision
of dereservation, the High Court proceeded to analyse the requirements for notifying
dereservation as contained in the Brochure and held that the Bank did not follow the requisite
procedure to undertake a fresh survey regarding the availability of the eligible candidates from
the respective categories even though such candidates were not available on the cut off date.
It was observed :

"We, therefore, direct the bank to examine the availability of candidates belonging to
ST category for promotion to the post of Field Supervisor and Officer who became eligible from
18.4.1990 to 17.4. 1991 as well as during the next two years i.e. upto 17.4.1993 thereby
making a period of 3 years for filling in the backlog of such reserved category candidates, by
examining the caste claims of all such candidates including their service record so as to fulfil
the principle of seniority-cum-merit. This shall be done within a period of two months from
today and those scheduled tribe category candidates who are found to be eligible, shall be
given promotion to the post of Field Supervisor and/or officer, as the case may be, and the
open category candidates who have been appointed against such posts shall vacate these
posts forthwith. We clarify that while withdrawing the appointments made in favour of the
open category candidates against reserved posts, the candidates who joined last would go first
and the bank shall not be entitled to recover any amount from them as they have already
worked in the higher posts. (WORDS 505)
 EXERCISE NO. 39 (Part 8) Criminal Matter

The Magistrate, in exercise of its power under Section 190 CrPC, can refuse to take
cognizance if the material on record warrants so. The Magistrate must, in such a case, be
satisfied that the complaint, case diary, statements of the witnesses recorded under Section
161 and 164 CrPC, if any, do not make out any offence. At this stage, the Magistrate performs
a judicial function. However, he cannot appreciate the evidence on record and reach a
conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage
appreciation of evidence is impermissible. The Magistrate is not competent to weigh the
evidence and the balance of probability in the case. Keeping in view the aforesaid legal
position, we may now discuss the circumstances under which the cognizance was taken by the
Session Judge. Here is a case where the Police report which was submitted to the Magistrate,
the IO had not included the appellants as accused persons. The complainant had filed
application before the learned Magistrate with prayer to take cognizance against the appellants
as well. This application was duly considered and rejected by the learned Magistrate. The
situation in this case is thus not where the investigation report/charge-sheet filed under
Section 173 (8) of the Code implicated the appellants and appellants contended that they are
wrongly implicated. On the contrary, the Police itself had mentioned in its final report that case
against the appellants had not been made out. This was objected to by the complainant who
wanted the Magistrate to summon these appellants as well and for this purpose the application
was filed by the complainant under Section 190 of the Code. The appellants had replied to the
said application and after hearing the arguments, the application was rejected by the
Magistrate.

This shows that order of the Magistrate was passed with due application of mind
whereby he refused to take cognizance of the alleged offence against the appellants and
confined it only to the son of the appellants. This order was not challenged. Normally, in such a
case, it cannot be said that the Magistrate had played 'passive role' while committing the case
to the Court of Sessions. He had thus taken cognizance after due application of mind and
playing an “active role” in the process. The position would have been different if the Magistrate
had simply forwarded the application of the complainant to the Court of Sessions while
committing the case. In this scenario, we are of the opinion that it would be a case where
Magistrate had taken the cognizance of the offence. Notwithstanding the same, the Sessions
Court on the similar application made by the complainant before it, took cognizance thereupon.
Normally, such a course of action would not be permissible. The next question is as to whether
this Court exercise its powers under Article 136 of the Constitution to interdict such an order.
We find that the order of the Magistrate refusing to take cognizance against the appellants is
revisable. (WORDS 500)
 EXERCISE NO. 40 (Part 8) Criminal Matter

We must note that this is the third case which this Court has noticed in a short span of
two months where, in a case of suspected poisoning, viscera report is not brought on record.
We express our extreme displeasure about the way in which such serious cases are dealt with.
We wonder whether these lapses are the result of inadvertence or they are a calculated move
to frustrate the prosecution. Though the FSL report is not mandatory in all cases, in cases
where poisoning is suspected, it would be advisable and in the interest of justice to ensure that
the viscera is sent to the FSL and the FSL report is obtained. This is because not in all cases
there is adequate strong other evidence on record to prove that the deceased was
administered poison by the accused. In a criminal trial, the Investigating Officer, the
Prosecutor and the Court play a very important role. The court’s prime duty is to find out the
truth. The Investigating Officer, the Prosecutor and the Courts must work in sync and ensure
that the guilty are punished by bringing on record adequate credible legal evidence. If the
Investigating Officer stumbles, the Prosecutor must pull him up and take necessary steps to
rectify the lacunae. The Criminal Court must be alert, it must oversee their actions and, in
case, it suspects foul play, it must use its vast powers and frustrate any attempt to set at
naught a genuine prosecution. Perhaps, the instant case would have been further strengthened
had the viscera been sent to the FSL and the FSL report was on record. These scientific tests
are of vital importance to a criminal case, particularly when the witnesses are increasingly
showing a tendency to turn hostile. In the instant case all those witnesses who spoke about
poisoning turned hostile. Had the viscera report been on record and the case of poisoning was
true, the prosecution would have been on still firmer grounds.

Having noticed that, in several cases where poisoning is suspected, the prosecuting
agencies are not taking steps to obtain viscera report, we feel it necessary to issue certain
directions in that behalf. We direct that in cases where poisoning is suspected, immediately
after the post-mortem, the viscera should be sent to the FSL. The prosecuting agencies should
ensure that the viscera is, in fact, sent to the FSL for examination and the FSL should ensure
that the viscera is examined immediately and report is sent to the investigating
agencies/courts posthaste. If the viscera report is not received, the concerned court must ask
for explanation and must summon the concerned officer of the FSL to give an explanation as to
why the viscera report is not forwarded to the investigating agency/court. The criminal court
must ensure that it is brought on record. We have examined the merits of the case and held
that the appeal deserves to be dismissed. In the circumstances, the appeal is dismissed. (497)
 EXERCISE NO. 41 (Part 8) Auction Matter

A perusal of the impugned order especially paragraphs 8, 12 and 13 extracted

hereinabove reveal that the impugned order came to be passed in order to work out the
equities between the parties. The entire deliberation at the hands of the High Court were based
on offers and counter offers, inter se between the Allahabad Bank on the one hand and the
objector Harender Singh on the other, whereas the rights of Sadashiv Prasad Sinha-the auction
purchaser, were not at all taken into consideration. As a matter of fact, it is Sadashiv Prasad
Sinha who was to be deprived of the property which came to be vested in him as back as on
28.8.2008. It is nobody’s case that at the time of the auction purchase, the value of the
property purchased by Sadashiv Prasad Sinha was in excess of his bid. In fact, the factual
position depicted under paragraph 8 of the impugned judgment reveals that the escalation of
prices had taken place thereafter, and the value of the property purchased by Sadashiv Prasad
Sinha was presently much higher than the bid amount. Since it was nobody’s case that
Sadashiv Prasad Sinha, the highest bidder at the auction conducted on 28.8.2008, had
purchased the property in question at a price lesser than the then prevailing market price,
there was no justification whatsoever to set aside the auction purchase made by him on
account of escalation of prices thereafter. The High Court in ignoring the vested right of the
appellant in the property in question after his auction bid was accepted and confirmed,
subjected him to grave injustice by depriving him to property which he had genuinely and
legitimately purchased at a public auction. In our considered view, not only did the Division
Bench of the High Court in the matter by ignoring the sound, legal and clear principles laid
down by this Court in respect of a third party auction purchaser, the High Court also clearly
overlooked the equitable rights vested in the auction purchaser during the pendency of a lis.
The High Court also clearly overlooked the equitable rights vested in the auction purchaser
while disposing of the matter.

At the time of hearing, we were thinking of remanding the matter to the Recovery
Officer to investigate into the objection of Harender Singh under Rule 11 of the Second
Schedule to the Income Tax Act, 1961. But considering the delay, we have ourselves examined
the objections of Harender Singh and reject the objections for a variety of reasons. Firstly, the
contention raised at the hands of the respondents before the High Court that the facts narrated
by Harender Singh were a total sham, as he was actually the brother of one of the judgment-
debtors, namely, Jagmohan Singh and that Harender Singh had created an unbelievable story
with the connivance and help of his brother so as to save the property in question. The claim of
Harender Singh in his objection petition was based on an unregistered agreement to sell dated
10.1.1991. (WORDS 503)
 EXERCISE NO. 42 (Part 8) Licensee Matter

We have heard learned counsel for the parties at length. The case of the plaintiff
appellant herein primarily was that the original defendant and even his legal representatives
were occupying the suit premises as gratuitous licensees upon termination whereof the plaintiff
was entitled to a decree for possession. While the Trial Court found that the defendants were
tenants and not licensees as alleged by the plaintiff, the First Appellate Court had recorded a
clear finding to the contrary holding that the defendants were indeed occupying the premises
as licensees whose license was validly terminated by the plaintiff. Whether or not the
defendants were licensees as alleged by the plaintiff was essentially a question of fact and had
to be answered on the basis of the evidence on record, which the First Appellate Court had
reappraised to hold that the defendants were let into the suit property by the plaintiff on
humanitarian grounds as gratuitous licensees. Absence of any rent note evidencing payment of
rent or any other material or circumstance to suggest that the relationship between the parties
was that of landlord and tenant, abundantly supported the conclusion of the First Appellate
Court. That finding also negatived the defence of the defendants-respondents that they were
occupying the premises as tenants which assertion of the defendant-respondent was held not
proved by the First Appellate Court. There is no gainsaid that while considering the question
whether the relationship between the parties was that of licensor and licensee as alleged by
the plaintiff or landlord and tenant as asserted by the defendants, the First Appellate Court
took into consideration the totality of the evidence on record with a view to finding out as to
which of the two versions was factually correct. That doubtless was the correct approach to
adopt in a suit based on an alleged license where the defendant’s logical defence was bound to
be that he is in occupation not as a licensee but as a tenant.

In that view, there was nothing special or novel about the plea raised in defence by the
defendants-respondents. What is important is that the First Appellate Court on facts found that
the defendants and even their predecessor were licensees in the premises which stood validly
terminated. The High Court could not have interfered with that finding of fact on the ground
that since the alternative case set up by the plaintiff in the plaint was contradictory to the
primary case pleaded by him, he was entitled to relief even on proof of the primary case. That
apart, the alternative plea of the plaintiff and the defence set up by the defendants was not
different from each other. The only question that would fall for determination based on such a
plea was whether the plaintiff had made out a case on the grounds permissible under the Rent
Control Act. An adjudication on that aspect would become necessary only if the plaintiff did not
succeed on the primary case set up by him. (WORDS 499)
 EXERCISE NO. 43 (Part 8) Criminal Matter

Learned counsel for the appellants in support of the appeal contended that the order of
acquittal by the Trial Court was based on appreciation of evidence on record which order of
acquittal required no interference by the High Court. It is contended that even if two views are
possible, the order of Trial Court acquitting the accused need no interference by Appellate
Court. The medical evidence which was led by the prosecution did not support the ocular
evidence led by so-called eye-witnesses. Hence, the Trial Court rightly disbelieved the
prosecution case. The High Court wrongly put the burden on the accused to prove that
deceased and eye-witnesses were not required to attend the Court whereas burden lies on the
prosecution to prove that the deceased and all the eye-witnesses were required to attend the
Court from where they claimed to be returning. There being long-standing enmity between the
accused and complainant party, the accused have been roped in. When Doctors came before
the Court for recording their evidence, the weapons, which were seized, were not shown to
them so as to form an opinion whether injuries on the deceased and injured witness could
have been caused by such weapons, which prejudicially affect the prosecution case. Learned
counsel for the appellants has placed reliance on several judgments of this Court, which shall
be referred to while considering the submissions of the parties.

Learned counsel for the State refuting the submissions of learned counsel for the
appellants contends that the High Court has rightly reversed the order of acquittal. It is
contended that account of eye-witnesses given by them was worthy of reliance and trial Court
on account of insufficient reasons discarded such evidence. The injured PW.5, Viveka Nand,
eye-witness had fully proved the incident and specifically proved the roles of accused which
evidence ought not to have been discarded by the Trial Court. It is submitted that the High
Court has correctly re-appreciated the evidence and has given cogent reasons for finding the
evidence trustworthy and believable. The account of injuries as proved by eye-witnesses was
fully corroborated with the medical evidence. The evidence of eye-witnesses, who were
accompanying the deceased Nos. 1 and 2, could not have been discarded as interested
witnesses whereas they were family members who were accompanying the deceased on the
motor-cycle and others on two-wheeler which eye-witnesses could prove the incident. The Trial
Court has observed that prosecution did not try to establish the fact that on 10.10.2003 i.e. on
the date of incident these witnesses and the deceased were required to be present before the
trial Court. The Trial Court further stated that presence of some witnesses was not necessary
particularly Kalyani, PW.6 daughter of the first deceased. It has come in the evidence that all
the persons who were returning from the Court, presence of few of them was not necessary at
the Court, and the others who were returning on 10.10.2003 were under the conditional bail
and were to appear before the Court once in a week. (WORDs 505)
 EXERCISE NO. 44 (Part 8) Criminal Matter

Tested on the touchstone of the aforesaid principles, we are inclined to concur with the
opinion expressed by the High Court that the learned trial Judge has really given undue
emphasis on the discrepancies which are minor in nature. To elaborate, emphasis has been laid
on the fact that the arrest memo indicates Vinod Kumar, son of Suraj Bhan. The learned trial
Judge has failed to appreciate that Vinod Kumar has been describing himself as son of Suraj
Bhan. There is no dispute with regard to the fact that he was found along with boy Anand.
There is no dispute with regard to his identity or the fact that he was working in the house of
the husband of Santosh. It has also been brought in evidence that Harpal, PW-3 had seen him
taking Anand and on a query being made, he answered that he was taking the child to the
market to buy shoes for the boy and medicine for himself. That apart, Vinod Kumar has not
taken the plea that he was not employed by Jagbir. Thus, the hypertechnical approach of the
learned trial Judge has correctly not been accepted by the High Court.

The next aspect which is required to be scrutinised is whether the letters vide Exhibit
P1 to P3 are to be ignored on the basis of the plea advanced by the accused. The learned trial
Judge has delved into this facet in a slightly peculiar manner. His reasoning is to the effect that
a perusal of the letters goes to show that the accused was to receive the amount of ransom at
Rohtak near the post office and the bus stand on 26.9.96 early in the morning and hence, had
there been any truth in these letters the police must have waited till the time mentioned in the
letters and must have made arrangement for the arrest of the accused at the place mentioned
in the letters; that in those circumstances there was no necessity to run immediately for the
arrest of the accused particularly in the circumstances when the correct address of the accused
were not there with the complainant or the police. Exception has been taken to the action of
the investigating agency not taking any steps to effect the arrest of the accused at the place
given in the letters, a conclusion has been arrived at that the letters were not in existence on
24.9.96. That apart, it has weighed in his mind that there was no necessity to write three
letters at the same time and, therefore, reliance on the letters was an afterthought. He has
also observed that the bringing of such type of letters into existence is not impossible for the
police and hence, as the accused had taken the stand that the said letters were got written
from him by the police under pressure, no much reliance could be placed on the letters. To
appreciate the aforesaid reasoning, it is first necessary to understand the plea of the accused.

(WORDS 502)
 EXERCISE NO. 45 (Part 8) (Auction Matter)

We cannot brush aside the fact that respondent Nos. 4, 6 & 7 filed a claim petition
before the Recovery Officer on 4th January, 2007 claiming their share of balance of sale
proceedings after adjustment of the dues of the Central Bank which shows that the parties to
the dispute have accepted the award passed by the Lok Adalat. It appears to us that the High
Court did not consider the said facts and further it has escaped from the mind of the High
Court that the auction purchaser has purchased the auctioned property for sale consideration
of Rs.3.27 crores and 25% of the sale consideration was duly paid on 5th October, 2006 and
furthermore on 19th October, 2006, the balance amount of sale consideration was duly paid by
the auction purchaser. We have further noted that the sale was confirmed on 15th November,
2006. The sale certificate was also issued in favour of the auction purchaser after paying the
requisite stamp duty and registration fees which, as pointed out to us on behalf of the auction
purchaser to the tune of Rs.30,73,800/-. It is also not in dispute that auction purchaser was
put in possession of the property and is still in possession of the property since the sale
certificate was issued and registration was made in his favour. It is submitted on behalf of the
auction purchaser that he has purchased the property by availing private borrowing for the
said property and he is paying nearly Rs.5 lakhs per month as interest. Therefore, in our
opinion, the equity and good conscience also has to play a role in the matter in question on the
given facts and after considering the conduct of the respondents in the matter.

In these circumstances, we feel that it would not be proper for us at this stage to set
aside the sale, as has been done by the High Court without taking into consideration all these
facts. Further, the High Court has failed to appreciate these facts and wrongly held that the
auction purchaser is a party to the negligence of the Recovery Officer and accordingly, the sale
was set aside. In our opinion, the auction purchaser had nothing to do in holding the auction.
Rather he deposited the money after bonafidely participating in the auction and, in fact,
suffered for long time to pay a price by participating in auction proceedings. In these
circumstances, we further noticed that the principal debtors were not prepared to pay back the
amount to the Bank and did not choose to defend themselves properly. The conduct of the
principal debtors also cannot be overlooked by us. Accordingly, we set aside the order passed
by the High Court and hold that since the auction purchaser has already paid the full amount of
sale consideration and is in possession of the property in question for more than about 8 years,
for equity and good conscience, we do not intend to interfere with his possession and we,
therefore, set aside the order and allow these appeals. (WORDS 508)
 EXERCISE NO. 46 (Part 8) NDPS Matter

The proceedings of seizure of contraband were carried out at the airport itself and all
documents were prepared in the custom area of IGI Airport. The observation of learned Special
Judge that PW-1 went to collect seal from SDO-I and then put seal so collected from SDO-I on
the documents created doubt on the preparation of these documents on the spot is contrary to
the evidence and the inference drawn by learned Special Judge is also uncalled for. PW-1
categorically stated that the accused/respondent was intercepted few yards away from the
Custom Counter which is known as transit area. During cross examination, the witness
affirmed that under Section 50 notice, punchnama and other seizure proceedings were
conducted in English and punchnama contents were explained to the accused and witnesses.
The notice under Section 50 of NDPS Act was prepared by one of his colleagues and he signed
the notice after reading the same. To a question put by defence counsel, this witness also
confirmed that three persons were detained at IGI Airport on that day including the
accused/respondent and the witnesses arrived at Custom Preventive Room and remained there
for conducting proceedings from 3.15 am to 10.30 am. From this testimony, it stands rather
admitted by the accused/respondent that the accused was intercepted along with two more
persons at IGI Airport on suspicion and the proceedings were carried out in Custom Prevention
Room and there were about 7-8 persons in the room including the accused. Thus, there could
have been no doubt about the recovery of 1985 gms of heroin from the accused/respondent.

The only suggestion given by the accused to the witness was that the recovery made
from some other person was planted on him but no suggestion was given if PW-1 was having
an enmity with the accused/respondent so as to implicate him falsely in the case or he was
having some affinity with other persons so as to spare them if recovery had been made. The
conduct of PW-1 of not involving other two persons in a case of NDPS Act, since no recovery
was made from them and only proceeding against the accused from whom recovery was made
is a creditworthy conduct and not a condemnable conduct. If PW-1 had to falsely implicate the
innocent persons, then he would have implicated other two persons also from whom no
recovery was made. But the fact that he did not implicate the other two persons from whom no
recovery was made does not mean that the case made against the respondent/accused was a
false case. Putting seal of SDO-I on the test memo and punchnama cannot be a ground to
doubt the veracity of the testimony or preparation of documents. It is not required nor
necessary that every custom officer would carry his seal with him all the time nor it is
necessary that a officer should affix his personal seal. A sample is to be sealed with a seal and
the same seal is to be put on test form. (WORDS 503)
 EXERCISE NO. 47 (Part 8) Criminal Matter

In this Court, the Counsel for the appellant contended that after the incident took
place, the local Sarpanch informed the matter to the Police Station and after investigation,
charges were framed under Sections 307 and 302 read with Section 34 of I.P.C. There was,
however, no specific finding against the present appellant. It was further contended that the
Additional Sessions Judge acquitted the appellant along with his mother and held that the
female accused had been implicated on an exaggerated version of P.W.1 not supported by
independent corroboration. The Additional Sessions Judge also noted that the evidence of
P.W.12 had not been challenged by the prosecution to the extent of her finding accused
Upendra absent from the place of occurrence. The Court has given benefit of doubt to the
appellant as the statements of P.W.1 to P.W.6 about the part played by Upendra in catching
the deceased Pravashini, are not in conformity with each other. The learned counsel further
contended that the Additional Sessions Judge has held that P.W.1 has stated that P.W.2,
P.W.6, P.W.8 and P.W.12 had only seen the dead bodies of the children. It was further pointed
out by the appellant before us that P.W.6 is the aunt of P.W.1 and P.W. 12 had fled out of fear
and, therefore, the High Court was wrong in reversing the acquittal order of the appellant on
certain wrong presumption and interpretation. The appellant has further taken the plea of
being a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000, and
accordingly under Section 7(a) raised the claim of juvenility before the Court and stated that
the High Court had recorded this aspect but did not act upon it. It was brought to our notice
that the appellant has already undergone the sentence for a period of about 8 years in jail.

Learned counsel for the respondent, on the other hand, contended before us that while
modifying the sentence and maintaining conviction, the Trial Court and the High Court have
believed the testimony of all the prosecution witnesses and have opined that the prosecution
has fully proved the case by leading credible evidences of credible witnesses. Thus, there is no
occasion for the Trial Court to disbelieve the same set of witnesses. The witnesses have
deposed that the present appellant was not only present but was armed with stick. The eye-
witness in the present case is P.W.1, who is the mother of the deceased, has stated the facts
in her testimonies, which have been corroborated by the testimonies of other witnesses. P.Ws.
1, 6, 7 & 12 have narrated the incident unequivocally and the defence could not derive much in
the cross-examination. The learned counsel thus submitted that the prosecution had proved
the case beyond reasonable doubt. The learned counsel finally submitted that the Trial Court
had formed the conclusion that the prosecution had proved its case beyond reasonable doubt,
but abruptly mentioned that the testimonies of P.W.6 and P.W.12 created a doubt regarding
the part played by Upendra. (WORDS 503)
 EXERCISE NO. 48 (Part 8) Service Matter

On receipt of the reference, both the parties filed their respective claim statements in
justification of their respective cases. It is the case of the workman before the Labour Court
that he has been appointed as a permanent workman in the permanent post of the
respondent-Department and that he has worked from 1.1.1987 till his termination from
1.4.1992 and he has been paid his salary on daily wage basis every month mentioning his
name as a daily wage earner in the muster roll. The service of the workman was retrenched by
the respondent-Department allegedly because he did not agree to join the new Union as per
the recommendation of the respondent-Department. It is contended on behalf of the workman
that his removal from service by the respondent-Department is otherwise misconduct on the
part of the respondent-Department and therefore, it amounts to retrenchment as defined
under Section 2 of the Act. Before removing the workman from his services, the respondent-
Department neither published any seniority list nor followed the rule of first come last go and
thereby there is a blatant violation of Rules 77-78 of Rajasthan Industrial Disputes Rules,
1958. It is also further stated that before removing him from the services, the respondent
neither issued one month's notice nor paid one month's wages nor obtained permission from
the State Government to retrench him from the services and also did not pay retrenchment
compensation as per Section 25 of the Act to the workman.

The respondent-Department filed its reply statement denying the claim made by the
workman and stated that during the period of last one year before the alleged retrenchment he
has not worked even for a day. Further, it is contended that the respondent-Department has
not constituted any Union and that the workman was neither retrenched nor any provision of
the Act and Rules have been contravened as stated by him in his claim petition. Further, it is
stated by the respondent-Department that from the perusal of the Government record, it has
been found that the workman has not worked even for a day during the year 1991, and that he
worked on casual basis in November, 1988 for 26 days, in October, 1989 for 26 days, in
September, 1989 for 26 days, in June, 1989 for 26 days and in March, 1989 for 24 days and
that in between these periods the workman was absent from work on his own volition. It is
further contended by the respondent-Department that after November, 1989 up to the date of
retrenchment he has never been engaged for work and did not attend for work without giving
any prior notice/information that he has left the job on his own. It is therefore contended by
the respondent-Department that it is neither an industrial dispute nor is the appellant a
workman and moreover, the respondent-Department is not an industry and therefore, the
dispute raised by the workman is not an industrial dispute and the Labour Court has no
jurisdiction to entertain the same. (WORDS 499)
 EXERCISE NO. 49 (Part 8) Suspension Matter

The High Court while dealing with this writ petition took the view that in case order
revoking the suspension did not deal with the suspension period or payment of the salary for
suspension period, order revoking suspension cannot be treated as void or non est. The only
effect thereof would be that the competent authority is precluded from exercising its power
and the legal position was that if while revoking the suspension or within a reasonable time
thereof no order is passed pertaining to pay and allowances for the period of suspension, the
authority is denuded from passing such an order. The necessary consequences thereof would
be that the Government servant, in such a situation, is entitled to full salary for the period he
remained under suspension. Therefore, High Court held that the petitioner was entitled to full
pay and allowances for the period he remained under suspension and in the present case, the
Supreme Court had already passed the order for grant of full salary for the period May 01,
1988 to May 13, 1996 and this amount had also been received by the petitioner though initially
he had refused to accept the same when it was tendered to him in the Court. Moreover, the
State of Maharashtra had not revoked the suspension on its own but to facilitate petitioner's
inter-cadre transfer from Maharashtra cadre to Punjab cadre and, therefore, the order of
revocation of suspension was not in exercise of power to revoke the suspension on the ground
that the petitioner was no longer required to kept under suspension and these peculiar
circumstances were not kept in mind by the Tribunal. According to us, the aforesaid approach
of the High Court, under the given circumstances, is without blemish. The High Court has relied
upon certain judgments of this Court including the decision in the case of Basant Ram Jaiswal
v. Area Manager, MTNL Bombay, (2011) 9 SCC 490, which held that in such a situation, the
competent authority cannot exercise the power.

When the order of suspension is revoked and the suspended employee is asked to join
the duty, he is required to do so. How the period of suspension is to be treated is another
aspect. At the most, such an employee would be entitled to full salary during the suspension
period if no order is passed as to how the suspension period would be governed. That would
not mean that order revoking suspension itself becomes bad in law. It is pertinent to mention
that even the Tribunal did not say that order revoking suspension was bad in law. In fact that
part of the order was favourable to the petitioner. What it held was that in terms of Rule 5(b),
the Government should have also decided how the period of suspension is to be treated and,
therefore, directed the Government to pass necessary order to that effect. An employee who is
suspended generally feels aggrieved by such suspension order and would like his suspension to
be revoked. (WORDS 500)
 EXERCISE NO. 50 (Part 8) Education Matter

An educational institution is established only for the purpose of imparting education to

the students. In such an institution, it is necessary for all to maintain discipline and abide by
the rules and regulations that have been lawfully framed. The teachers are like foster parents
who are required to look after, cultivate and guide the students in their pursuit of education.
The teachers and the institution exist for the students and not vice versa. Once this principle is
kept in mind, it must follow that it becomes imperative for the teaching and other staff of an
educational institution to perform their duties properly, and for the benefit of the students.
Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is
conducted, and that a decision is taken. In the case of a private institution, the relationship
between the management and the employees is contractual in nature. A teacher, if the
contract so provides, can be proceeded against, and appropriate disciplinary action can be
taken if the misconduct of the teacher is proved. Considering the nature of the duties and
keeping the principle of natural justice in mind for the purposes of establishing misconduct and
taking action thereon, it is imperative that a fair domestic inquiry is conducted. It is only on
the basis of the result of the disciplinary inquiry that the management will be entitled to take
appropriate action.

We see no reason why the management of a private unaided educational institution

should seek the consent or approval of any governmental authority before taking any such
action. In the ordinary relationship of master and servant, governed by the terms of a contract
of employment, anyone who is guilty of breach of the terms can be proceeded against and
appropriate relief can be sought. Normally, the aggrieved party would approach a Court of law
and seek redress. In the case of educational institutions, however, we are of the opinion that
requiring a teacher or a member of the staff to go to a civil Court for the purpose of seeking
redress is not in the interest of general education. Disputes between the management and the
staff of educational institutions must be decided speedily, and without the excessive incurring
of costs. It would, therefore, be appropriate that an educational tribunal be set up in each
district in a state; the object being that the teacher should not suffer through the substantial
costs that arise because of the location of the tribunal; if the tribunals are limited in number,
they can hold circuit/camp sittings indifferent districts to achieve this objective. Till a
specialized tribunal is set up, the right of filing the appeal would lie before the District judge or
Additional District Judge as notified by the Government. It will not be necessary for the
institution to get prior permission or ex post facto approval of a governmental authority while
taking disciplinary action against a teacher or any other employee. (WORDS 492)
 EXERCISE NO. 51 (Part 8) Criminal Matter

Learned counsel for the State has contended that the crime has been committed
brutally. Accused-Ranjeet, being the brother-in-law of the deceased owed a duty to protect
rather than expose her to such sexual assault and death along with his friends. The manner in
which the crime has been committed and the attendant circumstances fully justify imposition
of death sentence upon the accused. The crime is heinous and has been committed brutally
without caring for the future of the two infants of the deceased, who were sleeping by her side
at the time of the crime. There cannot be two opinions that the offence committed by the
appellants is very heinous and all of them have taken advantage of the helplessness of a
mother of two infants in the absence of her husband. There are certain circumstances, which if
taken collectively, would indicate that it is not a case where the Court would inevitably arrive
at only one conclusion and no other that imposition of death penalty is the only punishment
that would serve the ends of justice.

Firstly, the age of all the appellants is one of the relevant considerations before the
Court. Secondly, according to PW-1, the deceased Rajkumari was his mistress and he had not
married her, though he had two children with her. According to him, she was earlier married to
one Bhupendra and he was not maintaining good relations with Bhupendra on account of his
living with the deceased. This may have been a matter of some concern for the family,
including Ranjeet, the brother of PW-1. Thirdly, it has come in evidence that during
investigation, the Investigating Officer recovered a piece of saree from the place of occurrence,
which was blood-stained. According to the statement of the PW-7 Dr. Sheela Singh, there were
external injuries on the body of the deceased. Hemorrhage was present in the left and right
lungs and blood was flowing out from the mouth of the deceased, which was indicative of the
possibility of the accused persons having gagged her mouth with the piece of the saree while
committing rape upon her. Thus, the possibility of death of the deceased occurring co-
accidentally as a result of this act committed on her by the accused cannot be ruled out. In
similar circumstances, in the case of Bantu @ Naresh Giri (supra), this Court took the view that
it was not a death caused intentionally, despite the fact that it was a case of rape being
committed on a minor girl. Lastly, there is no attempt made by the prosecution to prove on
record that these accused are criminals or are incapable of being reformed even if given a
chance to improve themselves. While relying upon the judgment of this Court in the case of
Ram Swaropp Mishra (supra), the contention raised on behalf of the accused is that it is not a
case where no other alternative is available with the Court except to award death sentence to
the accused and that they are likely to prove a menace to the society. (WORDS 510)
 EXERCISE NO. 52 (Part 8) Enquiry Matter

After accepting his explanation, the High Court was still of the view that disciplinary
proceedings requires to be initiated against the appellant for his alleged omission and
commission of granting bail indiscriminately even in heinous crimes. The Charge Memo was
replied by the appellant and in that he had specifically contended that the Standing Committee
of the High Court, after accepting the explanation, had informed him that his explanation is
accepted and all the allegations made against him are closed. This aspect of the matter,
though noticed by the Inquiry Officer, he does not give any finding. He, however, has observed
that the charges alleged against the appellant are proved. Based on this, the High Court has
passed the order of reversion whereby the appellant was reverted from the post of Chief
Judicial Magistrate to that of Munsif and the same was notified by the State Government also.
In our opinion, having accepted the explanations and having communicated the same to the
appellant, the High Court could not have proceeded to pass the order of initiating departmental
proceedings and reverting the appellant from the post of Chief Judicial Magistrate to the post
of Munsif. On General Principles, there can be only one enquiry in respect of a charge for a
particular misconduct and that is also what the rules usually provide. If, for some technical or
other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is
found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore,
when a completed enquiry proceedings is set aside by a competent forum on a technical or on
the ground of procedural infirmity, fresh proceedings on the same charges is permissible.

In the present case, a charge memo was issued and served on the appellant. A
reading of the charge memo does not contain any reference to the proceedings of the Standing
Committee at all. It is also not found as to whether the earlier proceedings has been revived in
accordance with the procedure prescribed. In fact, after receipt of the charge memo, the
appellant, in his reply statement, had brought to the notice of the enquiry officer that on the
same set of charges, a notice had been issued earlier and after receipt of his explanation dated
21.12.1994, the Standing Committee, after accepting his explanation had dropped the entire
proceedings and the same had been communicated to him by the Registrar General of the High
Court by his letter dated 02.02.1995. In spite of his explanation in the reply statement filed,
the enquiry officer has proceeded with the enquiry proceedings and after completion of the
same, has submitted his report which has been accepted by the disciplinary authority.
Therefore, in these circumstances, there is no justification for conducting a second enquiry on
the very charges, which have been dropped earlier. Even through the principles of double
jeopardy is not applicable, the law permits only disciplinary proceedings and not harassment.
Allowing such practice is not in the interest of public service. (WORDS 506)
 EXERCISE NO. 53 (Part 8) Will Matter

However, there is one important feature which distinguishes wills from other
documents. Unlike other documents the will speaks from the death of the testator and so,
when it is propounded or produced before a court, the testator who has already departed the
world cannot say whether it is his will or not; and this aspect naturally introduces an element
of solemnity in the decision of the question as to whether the document propounded is proved
to be the last will and testament of the departed testator. Even so, in dealing with the proof of
wills the court will start on the same enquiry as in the case of the proof of documents. The
propounder would be called upon to show by satisfactory evidence that the will was signed by
the testator, that the testator at the relevant time was in a sound and disposing state of mind,
that he understood the nature and effect of the dispositions and put his signature to the
document of his own free will. Ordinarily 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 the propounder.

In other words, the onus on the propounder can be taken to be discharged on proof of
the essential facts just indicated. There may, however, be cases in which the execution of the
will may be surrounded by suspicious circumstances. The alleged signature of the testator may
be very shaky and doubtful and evidence in support of the propounder's case that the
signature in question is the signature of the testator may not remove the doubt created by the
appearance of the signature; the condition of the testator's mind may appear to be very feeble
and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to
the mental capacity of the testator; the dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant circumstances; or the will may
otherwise indicate that the said dispositions may not be the result of the testator's free will and
mind. In such cases the court would naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the last will of the testator. The
presence of such suspicious circumstances naturally tends to make the initial onus very heavy;
and unless it is satisfactorily discharged, courts would be reluctant to treat the document as
the last will of the testator. It is true that if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the execution of the will propounded, such pleas may
have to be proved by the caveators; but even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in executing the will or not.

(WORDS 502)
 EXERCISE NO. 54 (Part 8) Detention Matter

So far as the argument of the learned counsel for the petitioner that the order has
been passed for extraneous considerations and that it is a case of malafides, it may
straightway be observed that as have been narrated in the earlier part of the order, the
allegations of malafides as have been levelled against the respondent no.3 Mr. Yogesh Patel,
sitting MLA of the ruling party and that of respondent no.4, who is said to be a rich donor to
the organisation of RSS and pampered, supported and protected by respondent no.3 and that
the petitioner has been detained only to pressurise him to drop the litigation going on between
the two rival groups and respondent no. 4 in particular being protected by respondent no.3, it
may be pointed out that respondents nos. 3 and 4 have chosen not to file any reply to these
allegations and whatever allegations have been levelled against them have remained
uncontroverted so far as respondents nos. 3 and 4 are concerned. It is of course true that the
detaining authority itself has denied these allegations and it has been denied that the order of
detention was passed because of the pressure of the respondents.

In this view of the matter, I do not find sufficient material on record to hold that the
detaining authority has acted malafidely at the instance of respondents nos. 3 and 4 so as to
pass the detention order. Nevertheless, the circumstances attendant and precedent to the
passing of the detention order dated 30th August 1999, and the grounds which have been
taken for the purpose of detention do indicate that the two criminal cases of 1977 and 1998
failed to clinch the issue with regard to detention. The question of detention has assumed
importance only in the month of August 1999 when the two rival groups were at the climax of
their contest in the civil litigation and only in the month of August 1999 the statements of the
witnesses have been recorded with regard to the incidents of June, 1999 and July 1999 and
the only criminal case registered against the petitioner in the year 1999 is Criminal Case
No.175/99 in which the petitioner was arrested by the police which relates to some dispute
about the land. In fact, all these three criminal cases which are registered against the
petitioner in 1977, 1998 and 1999 are in relation to some land disputes as would appear from
page nos. 86, 158 and 206 of the paper book forming part of the documents which were
supplied to the petitioner and the reading of the contentions and the allegations therein would
show that the basic dispute is about some land in all these cases. From such allegations as
have been levelled in these three cases and the allegations as have been made against the
petitioner with regard to the three incidents narrated by the three witnesses in unregistered
cases, it cannot be said that these allegations constitute germane and relevant material to the
consideration of public order. (WORDS 507)
 EXERCISE NO. 55 (Part 8) Detention Matter

In this case also, the manner in which the verification has been recorded of the
statements made by these three witnesses for the purpose of Sec.9 (2) shows that the same
has been done only as an empty formality inasmuch as the same witnesses had been called
before the detaining authority and the detaining authority had recorded that whatever the
statements made by the witnesses were correct. Thus, the whole exercise appears to have
been done as a mechanical exercise and it is not borne out that there is an active application of
mind on this aspect of the matter by the detaining authority for the purpose of verification of
the facts as had been disclosed by the witnesses so as to express the fear and to invoke the
privilege under Sec.9 (2) against the disclosure of the names and addresses of the witnesses
and it thus appears on the basis of the ratio of the decision of the Division Bench that it is a
case of wrong exercise of power under Sec.9 (2) and it is established that in such cases, the
wrong exercise of power under Sec.9 (2) adversely affects the detenu's right of making an
effective representation guaranteed under Article 22 (5) of the Constitution of India. This Court
quite appreciates in such cases the predicament or the dilemma of the detaining authority
inasmuch as, when the action is taken promptly, it is argued that the action has been taken in
a hot haste and if the same is taken after lapse of some time, it is said that the action is
delayed and therefore, the same stands vitiated.

In order to combat this argument, the Division Bench has rightly observed that a
balance has to be struck in such cases between the public interest and the right of the detenu
to make an effective representation. The detaining authority is, therefore, required to act in
such a manner that this balance is maintained. Once the materials are placed before the
detaining authority with the proposal by the sponsoring authority, it must have reasonably
sufficient time for the purpose of verification of the facts and the consideration of the entire
material with an active application of mind and the order has to be passed at the earliest
opportunity, but in this process to strike the balance between the public interest and the right
of the detenu either of the two should not be defeated in any manner and the whole process
must indicate that the detaining authority had applied its mind with the requisite approach and
it had also devoted sufficient time before arriving at the decision to claim the privilege under
Sec.9 (2) of the Act and also to come to the conclusion that the detenu was required to be
detained immediately. In the facts of the present case, I find that this requirement of
maintaining the balance has been defeated and the detention order has been passed on 30th
August 1999. (WORDS 497)
 EXERCISE NO. 56 (Part 8) Criminal Matter

We are of the view that it is the duty of the Courts, on taking cognizance of a criminal
offence, to ascertain whether there is tangible material to show commission of crime, whether
the victim is identifiable and whether the victim of crime needs immediate financial relief. On
being satisfied on an application or on its own motion, the Court ought to direct grant of
interim compensation, subject to final compensation being determined later. Such duty
continues at every stage of a criminal case where compensation ought to be given and has not
been given, irrespective of the application by the victim. At the stage of final hearing, it is
obligatory on the part of the Court to advert to the provision and record a finding whether a
case for grant of compensation has been made out and, if so, who is entitled to compensation
and how much. The gravity of offence and need of victim are some of the guiding factors to be
kept in mind, apart from such other factors as may be found relevant in the facts and
circumstances of an individual case. We are also of the view that there is need to consider
upward revision in the scale for compensation and pending such consideration to adopt the
scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State
or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and
Telangana are directed to notify their schemes within one month from receipt of a copy of this
order. We also direct that a copy of this judgment be forwarded to National Judicial Academy
so that all judicial officers in the country can be imparted requisite training to make the
provision operative and meaningful.

From the above line of cases, it becomes very clear that a sentence of imprisonment
can be granted for default in payment of compensation awarded under Section 357 (3) CrPC.
The whole purpose of the provision is to accommodate the interests of the victims in the
criminal justice system. Sometimes the situation becomes such that there is no purpose served
by keeping a person behind bars. Instead directing the accused to pay an amount of
compensation to the victim or affected party can ensure delivery of total justice. Therefore,
this grant of compensation is sometimes in lieu of sending a person behind bars or in addition
to a very light sentence of imprisonment. Hence on default of payment of this compensation,
there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing
the accused to get away without paying the compensation and imposing another fine would be
impractical as it would mean imposing a fine upon another fine and therefore would not ensure
proper enforcement of the order of compensation. While passing an order under Section 357
(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay
the same amount as has been laid down by the cases noted above. (WORDS 511)
 EXERCISE NO. 57 (Part 8) Disability Matter

A Single Bench of the High Court of Allahabad vide judgment and order dated
31.8.2010 dismissed the writ application holding that under the Rule framed in exercise of the
powers under sub-sections (1) and (2) of Section 73 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995, the general eligibility to
apply for facilities, concessions and benefits admissible under the scheme of the Act is subject
to such conditions as the State Government may impose and the State Government has
imposed a condition in the order dated 3.11.2009 of constitution of the Medical Board for
verification of the disability. Even otherwise under the rules there can be a review of the
decision upon representation by the applicant and fresh order can be passed. Thus the
certificate issued is not final. On appeal being preferred a Division Bench of the High Court of
Allahabad by the impugned order has allowed the appeal and has held that while the certificate
has been issued in accordance with the Rules of 1996, roving enquiry cannot be made until
and unless fraud has been detected, it is not permissible to reopen medical certification carried
out under the Rules of 1996. However the High Court has directed that a physical verification
may be made and if the candidate has not been issued certificate of disability or otherwise or
that he does not suffer from any disability so certified which entitles him to such a certificate,
in that event the candidate can be subjected to fresh medical test not otherwise. Accordingly
the directions by the Government on 15.7.2010 for physical verification be construed in the
aforesaid manner.

It is apparent from Rules of 1996 that disability certificate is required to be issued by

Medical Board. It can issue permanent disability certificate or the Medical Board shall indicate
the period of validity in the certificate in case where there is any chance of variation in the
degree of disability. In case of refusal of disability certificate an opportunity is required to be
given to the applicant of being heard, and there can be a review by the Medical Board on
representation by the applicant and Rules contains a provision to the effect that the certificate
issued by the Medical Board shall make a person eligible to apply. In the facts of the instant
case there was a serious complaint lodged by Viklang Sangh of illegal usurpation of the quota
reserved for specially abled by large number of persons who were not in fact specially abled
and have procured certificates fraudulently from their districts under the Rules of 1996. On the
basis of the said complaint Government has issued an order for the purpose of verification of
such certificates issued by the Medical Board and certificates of 21% of selected candidates of
handicapped category were found to be fraudulent. It is settled proposition of law that fraud
vitiates in such a case when large number of candidates have illegally usurped the reserved
seats of the persons suffering from disability. (WORDS 506)
 EXERCISE NO. 58 (Part 8) Election Matter

Being aggrieved by the aforestated judgment delivered in the writ petition, the present
appellant preferred Writ Appeal No.806 of 2011 assailing the validity and correctness of the
said judgment rendered by the Learned Single Judge of the High Court. The Division Bench of
the High Court dismissed the Writ Appeal by its judgment dated 18th July, 2011 and therefore,
the appellant has approached this Court by way of this appeal. The learned counsel appearing
for the appellant submitted that on 3rd May, 2010, the Returning Officer had published
preliminary electoral roll as specified in Regulation 3(1) of the Regulations and the last date for
preferring claims and objections relating to the entries or omissions in the preliminary electoral
rolls was 30th July, 2010. However, the said last date was extended upto 31st August 2010.
Ultimately, the final electoral roll was published in the Extra-ordinary Gazette no.35 on 10th
January, 2011. The election programme was notified in the Gazette on 27th January, 2011,
whereby it was notified that the last date for receiving nomination papers was 7th February,
2011 and the scrutiny of the nomination papers was to take place on 9th February, 2011. The
schedule prescribed the last date for withdrawal of the nomination as 16th February, 2011 and
the election was to take place on 18th March, 2011. Counting was to take place on 19th March,
2011. The aforestated facts are not in dispute.

The learned counsel further submitted that after the process of election had started by
publication of the election programme on 27th January, 2011, the High Court should not have
entertained the petition filed by respondent no.1, especially when he was not even an
elector/voter and that nomination of respondent no. 1 was rightly rejected by the Returning
Officer because his name was not in the electoral roll. On the other hand, the learned counsel
for respondent no.1 submitted that respondent no.1 was competent to contest the election
though his name was not registered in Part A of the State register. Respondent no.1 was to be
elected by the Dentists whose names were registered as Dentists in Part A of the State register
and for the purpose of contesting the election, it was not necessary that his name should be in
Part A of the State register. To contest the election one must be a registered Dentist
possessing a recognised dental qualification and in fact respondent no.1 was having
qualification of a Dentist and he was registered as a Dentist. In these circumstances, according
to the learned counsel appearing for respondent no.1, non-inclusion of name of respondent
no.1 in Part A of the State register was not relevant. Thus, in view of the aforestated settled
legal position, the High Court should not have interfered with the process of election. We,
therefore, set aside the impugned judgment and direct that the result of the election should be
published. We are sure that due to interim relief granted by this Court, respondent no.1 must
not have been permitted to contest the election. (WORDS 504)
 EXERCISE NO. 59 (Part 8) Tax Matter (Vol. 42 Ex. 1)

Keeping in view the aforesaid principle, the language employed in the notification has
to be appreciated. Benefit of deferment of tax is granted under certain terms and conditions.
One of the terms and conditions pertains to repayment of deferment of tax amount by the
industrial unit. The first part of sub-para (1) of para 5 stipulates that the repayment of
deferred tax amount shall have to be done after the completion of eligibility period of
deferment or the prescribed percentage limit of fixed capital investment, whichever reaches
earlier. In the case at hand, the period of exemption has been converted to period of
deferment of tax. There is no dispute that the assessee had availed the exemption for a period
of 6 years and he is entitled to deferment of tax for the rest of the period which commenced in
2006. It is the next part of the said sub-para which requires to be understood. The notification
lays a clear postulate that repayment of total deferred amount shall have to be done in ten
equal six monthly instalments in such a manner so as to be completed within 13 years from
the date of start of deferment. The words “from the date of start of deferment” have to have
nexus with the policy stated in the beginning. The policy would apply if the unit has
commenced between 01.09.1995 and 31.08.2000; that it has a registration certification from
the prescribed authority and that, most importantly, it has been given an eligibility certificate
for the said purpose. The policy would come into play only if these conditions are satisfied and
then the assessee will be allowed to have the benefit of deferment of sales tax on the sale of
manufactured finished goods for a prescribed period.

Therefore, the authority has been given the power to lay down the prescribed period
for grant of deferment. In the beginning, the 1st respondent was granted exemption. The
concept of exemption is distinct from the concept of deferment of tax. After the JVAT Act came
into force, under the statutory provisions there was no exemption and beneficiaries were
entitled to convert to the scheme of deferment. The period remains intact, that is, 8 years. The
repayment has to be done in equal six monthly instalments and that period is 5 years. The
repayment commences after completion of eligibility period of deferment or the prescribed
percentage limit of fixed capital investment, whichever is earlier. The prescribed authority can
grant an eligibility certificate but he has to keep in view the terms and conditions stipulated in
the notification. The said authority cannot travel beyond the stipulations of the notification. The
language employed in the notification conveys that the grant of certificate has to be such that
after expiration of the eligibility period, the amount has to be paid back within a span of 5
years but the gap cannot exceed 13 years from the date of start of deferment. The postulate
enshrined therein has to be appositely appreciated. (WORDS 500)
 EXERCISE NO. 60 (Part 8) Criminal Matter

I had the opportunity of reading the judgment of my learned brother Justice P.

Sathasivam who has dealt with the issue in extenso while modifying the death sentence to one
of imprisonment for life i.e. till the end of his life. I only wish to supplement my views while
fully endorsing and concurring with the judgment of His Lordship Justice P. Sathasivam. Since,
the facts have been elaborately stated in the judgment of His Lordship Justice P. Sathasivam, I
do not refer the same in detail. For the purpose of my reasoning, in toeing with the conclusion
of His Lordship Justice P. Sathasivam, I only wish to refer to certain factors to support our
conclusions. These appeals were entertained on 20.07.2009, however, while issuing notice, the
appeals were confined to sentence only. The appellant was found guilty of the offence under
Section 302 IPC and was sentenced to death for committing the murder of his wife Veena
Verma and his daughter Geetu Verma on 08.01.2006 in the area of Pratap Singh Wala,
Ludhiana. The above appeals arose out of the confirmation of death sentence in Murder
Reference No.8/2007 as well as the connected Criminal Appeal.

It is necessary to state that the appellant indulged in grotesque crime of murdering his
wife and daughter one after another on 08.01.2006. The motive for such a heinous crime was
that there was a dispute between him and his wife Veena Verma as regards the house which
he owned and that he was deprived of having access to his own house. In fact it was a matter
of record that in the year 1999 there was an FIR against the appellant in FIR No. 27 wherein
the appellant was charged for offences under Sections 376 and 506 IPC for having committed
rape on his deceased daughter Geetu Verma which ended in a conviction of 12 years rigorous
imprisonment by judgment dated 15.05.2001. There was yet another FIR No. 58 dated
06.04.2005 against the appellant for offences under Sections 323 and 506 IPC for having
assaulted and for having given threat to his wife Veena Verma which was also proved as per
Ex.P1. There was yet another record of criminal case No.2531 dated 01.08.2005 (FIR No.58 of
2005) again for offences under Sections 323 and 324 IPC which was pending in the Court of
JMIC, Ludhiana. In fact, the present offence of murder of his wife and daughter was committed
by the appellant when he was on parole while undergoing rigorous imprisonment of 12 years
for the conviction of the offence of rape of his daughter committed in the year 1999. It was
also relevant to keep in mind that for holding the appellant guilty of the charge of murder of
his wife and daughter apart from the other evidence, the evidence of his own minor daughter
Shalu PW.2 who was an eye-witness to the occurrence weighed to very great extent along with
the evidence of his own son Malkiat Singh PW.7. (WORDS 497)
 EXERCISE NO. 61 (Part 8) Criminal Matter

Both the learned Trial Judge as well as the Appellate Court considered the very same
documents brought on record by the contesting parties to arrive at their respective conclusions
with regard to the entitlement of the plaintiffs. Specifically, the learned Trial Judge had
discussed the narration of the events of dispossession pleaded by the plaintiffs and held the
same to be somewhat unreliable and inconsistent in view of the fact that the defendant No. 1
(son of the deceased Ibrahim Khan) who is alleged to have been instrumental in dispossessing
the plaintiffs was at the relevant point of time in Bhagalpur in connection with the cremation of
the deceased Ibrahim Khan. In this regard, the claim of defendants 2 to 4 that they were also
in Bhagalpur at the relevant time was considered by the learned Trial Judge. The versions of
the occurrence allegedly narrated to the plaintiff no. 1 by her neighbours and her domestic aid
were also found to be somewhat contradictory. The learned Trial Judge took into account the
fact that the plaintiffs’ version with regard to prosecution of studies by the second plaintiff in
the school at Mira Road and his residing with the parents of the plaintiff No. 1 at Mira Road was
brought on record in the rejoinder and did not constitute the part of the plaint case.

In coming to his conclusions in the matter the learned Trial Judge also took into
account the fact that the visiting card of the plaintiff No. 1 showed an address other than of
the suit office and also the fact that the communication conveying the temporary membership
of the plaintiff No. 1 in the Bombay Bar Association sent to the suit flat address was returned
with the remarks “shifted”. The fact that the visiting card of the plaintiff showing the office
address at Ashoka Centre contained the same telephone numbers of the plaintiff that were
mentioned in certain communications of the bank were duly taken note of by the learned Trial
Judge. In the above context the claim of the plaintiff No.1 that the said visiting card is a forged
and fabricated document was held to be an issue fit for decision in the trial of the suit. The
learned Trial Judge took into account the passports of both the plaintiffs issued in the year
2009 showing the address of the suit premises as well as the vouchers/memos showing
payment by the plaintiff No.1 for the household and electronic goods which were found in the
suit flat. On an overall consideration of the aforesaid facts and the documents laid in support
thereof, the learned Trial Judge was of the view that there were inconsistencies and
improbabilities in the case of the plaintiffs which needed to be established in the trial of the
suit. Accordingly, the interim relief of direction to be put back in possession, as claimed by the
plaintiffs, was declined. The Appellate Court understood the very same documents considered
by the learned Trial Judge in a wholly different manner. (WORDS 505)
 EXERCISE NO. 62 (Part 8) Criminal Matter (Vol. 42 Ex.2)

The High Court has further failed to appreciate some other important facts which
create reasonable suspicion and shadow of doubt in the truthfulness of the prosecution story,
namely, instead of confronting with the forest officers, who were on patrolling duty in jeep, the
accused-appellants would have tried to conceal their presence either by hiding themselves or
by running away. Further, the forest officers, including the driver of the jeep, were 10 in
number and on the other hand, accused-appellants were 4. It is difficult to believe that the
forest officers made no frantic efforts to nab the culprits when they allegedly assaulted them.
The forest officers could have easily apprehended the culprits had they tried, as they
outnumbered them. Further, it is clear from the record that all the forest officers were
deployed on patrolling duty to keep a check on the then increasing forest offences. It means
incident, like in the instant case, could reasonably be anticipated. It has been rightly
appreciated by the Trial Court that under such circumstances, they should have been armed
with weapons at least for their own safety. As per record, when the incident occurred, all the
forest officers were found to be without weapons. It cannot be believed that the forest officers
on patrolling duty were without any weapon. In this regard, the High Court has erred in
observing that the Forest Department being poorly equipped failed to provide weapons to meet
the situations, like in the instant case. The prosecution version is that after the assault, all the
accused-appellants ran away in their bullock cart leaving behind the weapons. It has rightly
been observed by the Trial Court that if the accused-appellants had any intention to carry
away the said weapons, they would have easily done so as after the alleged assault, they had
no hurdle whatsoever in that regard. Thus, the aforesaid story certainly casts a shadow of
doubt on the truthfulness of the prosecution case and renders the same to be unreliable.

The reasoning given by the High Court in its judgment and order in itself is contrary.
On the one hand, it has observed that when the accused-appellants started assaulting the
forest officers, none of the officers, who were unarmed, dared to go near the culprits with a
view to catch them, thus, placing the accused-appellants in a dominating position. On the
other hand, it has further observed that the accused-appellants had dropped the said weapons
to make their bullock cart light in weight with a view to move swiftly. This Court finds the
aforesaid reasons assigned by the High Court to be incorrect. Once the accused-appellants
were in a dominating position, none of the forest officers could go near them for the purpose of
nabbing them. Thus, there can be no justification for leaving behind the said weapons. They
could have easily carried it away with them, if they had the intention of doing so. The
prosecution has failed to explain the reason behind the accused-appellants not taking away the
said weapons with them. (WORDS 506)
 EXERCISE NO. 63 (Part 8) MV Act

On the question of quantification of compensation, the Tribunal took note of the

evidence led by the claimants as regards emoluments of the deceased as on 01.12.1995; the
fact that his colleagues were promoted as Associate Vice President in the year 1995; that he
too had the prospects of such promotion; and that emoluments of the Associate Vice President
were revised with effect from the month of December 1996. Therefore, the Tribunal considered
it just and reasonable to assess the income of the deceased at Rs. 3,51,000/- p.a., as per the
revised emoluments for the post of Associate Vice President in the employer company. Then,
the Tribunal proceeded to deduct one-third towards personal expenses of the deceased and in
this manner, took the annual loss of dependency at Rs. 2,34,000/- and after applying the
multiplier of 16, assessed the pecuniary loss of the claimants at Rs. 37,44,000/-. The Tribunal
further awarded Rs. 25,000/- towards transportation of dead body and Rs. 2,000/- towards
other expenses and thus, finally awarded a sum of Rs. 37,71,000/- to the claimants. The
Tribunal also allowed interest at the rate of 12% p.a. from the date of filing of claim application
No. 80 of 1996. The Tribunal allowed a sum of Rs. 1,00,000/- each to the mother and father of
the deceased while observing that they were in the age group of 78 years and were only
marginally dependent on the deceased; and apportioned the remaining amount amongst the
wife and children of the deceased. Against the award so made by the Tribunal, the claimants in
MACT Case No. 84 of 1996 preferred an appeal before the High Court of Punjab and Haryana,
seeking enhancement of the amount of compensation, while the insurance company preferred
two separate appeals questioning the findings in the award and seeking reduction of the
amount of compensation.

The High Court, in its impugned judgment dated 06.07.2018, in the first place rejected
the contentions urged on behalf of the insurer as regards the factum and cause of accident and
affirmed the findings of the Tribunal. As regards quantum of compensation, the High Court
proceeded to make enhancement over the amount awarded by the Tribunal with reference to
the decisions in Pranay Sethi and Sarla Verma (supra). The High Court did not accept the basis
of assessment of loss of income with reference to the likely enhanced emoluments of deceased
on his expected promotion and subsequent revision of pay-scale in the year 1996. The High
Court, therefore, took the base annual emoluments at Rs. 3,21,801.60 and, while deducting
Rs. 20,000/- towards income-tax, rounded off the figure to Rs. 3,00,000/-. The High Court,
thereafter, provided for enhancement of 40% towards future prospects and then, looking to
five number of dependents, deducted one-fourth towards personal expenses of the deceased.
In this manner, the High Court arrived at the multiplicand of Rs. 3,15,000/- and, while
applying the multiplier of 15 in view of the age of the deceased at 38 years, worked out the
pecuniary loss at Rs. 47,25,000/-. (WORDS 503)
 EXERCISE NO. 64 (Part 8) Criminal Matter

Per contra, learned counsel appearing for the accused respondents submitted that the
prosecution case is unreliable for the reasons that the place of occurrence and lodging of FIR is
very much disputed, there is difference between the medical and oral evidence of the
witnesses, the so-called injured witness Ganga Singh despite being a relative of the informant,
has not been examined before the Court and the presence of semi-digested food in the
stomach of the deceased suggests that the incident could have occurred between 2.00 to 4.00
a.m. totally controverting the stand taken by the prosecution. The High Court has prudently
appreciated these facts and rightly held that the investigation department was hand in glove
with the complainant who wanted to implicate the accused in the alleged crime. The alleged
FIRs purporting to establish kidnapping story of Ganga Singh cannot be of any consequence as
the same were concocted and was rightly disregarded by the High Court. Moreover, from the
statements of PW-1 Bhola Singh and PW-2 Baijnath Singh, it cannot be inferred that they were
actually present at the scene of offence at the time of occurrence of the incident since their
evidence does not support the same. Disputing the scene of occurrence, learned counsel
contended that as per prosecution version, PW-4 Riyatullah Khan, who has prepared the
panchnama had not found any clay on the dead body of the deceased nor in the post-mortem
no clay was found by PW-7 Dr. Jitendra Kumar. Another clinching factor in this regard is that
the place of firing as shown in the sketch map prepared by the I.O. is contradictory to the
place referred by PW-1 and P.W.2. in their statements. The motive factor also stood not proved
beyond reasonable doubt, considering the statement of PW1 who had categorically stated in
his evidence that there was no dispute with regard the land in dispute.

Learned counsel further contended that General Diary of the case has been prepared
on the plain paper, contrary to the provisions of the Police Regulation Act. Apart from this,
entry of sending the case diary to the Superintendent of Police has not been made in the G.D.,
whereas under para 295(16) of the Police Regulation Act, it was necessary that the documents
which are received in the G.D. in the police station, are sent to the police station after making
entries; thus the IO has not complied with the provisions of para 107 of the Police Regulation
Act and due to this reason, the investigation is vitiated. Learned counsel for the accused
therefore strenuously urged that there is no error in the acquittal order passed by the High
Court which does not call for any interference by this Court. Generally, an appeal against
acquittal has always been altogether on a different pedestal from that of an appeal against
conviction. In an appeal against acquittal where the presumption of innocence in favour of the
accused is reinforced, the appellate Court would interfere with the order of acquittal only when
there is perversity of fact and law. (WORDS 508)
 EXERCISE NO. 65 (Part 8) Hawala Matter

Mr. Brijesh Kapur, learned counsel for the appellant-State submitted that time and
again it has been laid down that while issuing summons, the Magistrate is to be satisfied that
“there is sufficient ground for proceeding” and on the basis of the materials filed along with the
second supplementary charge-sheet, the Magistrate took cognizance of the offences and
directed issuance of summons to the respondent and the same ought not to have been
inferred. The learned counsel further submitted that issuance of summons, being an
interlocutory order, the High Court in exercise of its revisional jurisdiction ought not to have
set aside the order of issuance of summons. The learned counsel further submitted that the
learned Single Judge erred in proceeding under the footing as if it is a simple case of forgery of
the Bills of Entry and did not keep in view that the present case is a complex economic offence
of sending foreign exchange abroad to foreign companies in Dubai and Hongkong through
“hawala” by setting up a web of companies. Placing reliance upon number of decisions, the
learned counsel for the appellant-State submitted that at the stage of issuance of the
summons, the Court is not to examine the merits and demerits of the case and the possible
defence are not to be examined.

Per contra, Mr. Mukul Rohatgi, learned senior counsel for the respondent submitted
that summoning an accused is a very serious step and there should be strict examination of
the materials on record and the summoning order must reflect the application of mind by the
Magistrate. It was further submitted that the alleged statement of Praful Patel dated
01.08.2014 relied upon by the prosecution was rightly held to be in the nature of hearsay and
inadmissible qua the respondent. The learned senior counsel further submitted that Praful Patel
who is alleged to have transferred the cash by RTGS to the companies in ICICI Bank would
form a vital link in the alleged flow of money and they have not been shown as accused and
the contention of the State with regard to the statement of Praful Patel is bereft of any merits.
The learned senior counsel further submitted that absolutely there is no evidence to connect
the respondent with the companies in ICICI Bank and other foreign companies based in Hong
Kong and Dubai to whom the foreign exchange is alleged to have been sent and in the absence
of any material, learned Single Judge rightly held that there was no sufficient ground in
proceeding against the respondent and the impugned order of the High Court warrants no
interference. He has placed reliance upon on a judgement rendered in Pepsi Foods Ltd. and
another vs. Special Judge Magistrate and others, (1998) 5 SCC 749,wherein it has been held
that summoning of an accused in a criminal case is a serious offence and the order of the
Magistrate is bereft of reasons indicating the application of mind and the impugned order was
rightly quashed by the High Court. (WORDS 503)
 EXERCISE NO. 66 (Part 8) Revaluation of Answer Sheet

In this case we have already noted that the writ petition was filed challenging the
results and seeking revaluation. The writ petition came to be dismissed in the year 2012 by the
High Court. The Special Leave Petition was dismissed in the year 2013. The review petition is
filed after nearly 5 years. In the interregnum, there were supervening developments in the
form of fresh selection. While it may be true that the delay in filing the review petition may
have been condoned, it does not mean that the Court where it exercises its discretionary
jurisdiction under Article 226 is to become oblivious to the subsequent development and the
impact of passage of time. Even in the judgment of this Court in U.P.P.S.C. through its
Chairman & Anr. Vs. Rahul Singh & Anr. reported in 2018 (2) SCC 357 which according to the
first respondent forms the basis of the High Court’s interference though does not expressly
stated so, what the Court has laid down is that the Court may permit revaluation inter alia only
if it is demonstrated very clearly without any inferential process of reasoning or by a process of
rationalization and only in rare or exceptional cases on the commission of material error.

It may not be correct to characterize the case as a rare or exceptional case when the
first respondent approaches the Court with a delay of nearly 5 years allowing subsequent
events to overtake him and the Court. We feel that this aspect was not fully appreciated by the
High Court. The review, it must be noted, is not a re-hearing of the main matter. A review
would lie only on detection without much debate of an error apparent. It is here that we must
notice the argument of the appellant relating to question in Part III of the examination alone,
engaging the attention of the Court for the reason that the first respondent pressed this aspect
alone before the High court. The judgment of the High Court in the writ petition appears to
bear out this submission of the appellant. The issue relating to the anomaly in the evaluation
of the Paper III has been discussed thread bare in the judgment. The view of the High Court
has not been disturbed by this Court. Despite this the High Court in the impugned judgment
has proceeded to take up the plea relating to questions in Part-I and Part-II and proceeded to
consider the review petition and granted relief that too after the passage of nearly 5 years.
This suffices to allow the present appeal. Despite all this we would also make a few
observations on the merits of the matter. However, we would like to rest our conclusion on the
basis that not being armed with a right given by a provision providing revaluation and in the
facts which we have already set out and the reasons we have alluded we would think that the
High Court ought not to have allowed the review petition. (WORDS 501)
 EXERCISE NO. 67 (Part 8) Market Value

Not being satisfied, the claimant filed a Civil Appeal No. 999 of 2005 (Mohammad
Hussain Athar Khan vs. State of UP and another) before the Hon'ble Apex Court challenging
the judgement of Hon'ble Division Bench of this Court. After discussion it was found by the
Hon'ble Apex Court that the High Court was not justified in setting aside the order of the
reference court in its entirety only on the ground that the circle rate could not be made basis
for fixing market value of the acquired land. The judgement of Hon'ble Division Bench of this
Court was set aside by Hon'ble Apex Court and the matter was remanded to the reference
court for re-determination of market value of the acquired land. Pursuant to the aforesaid
judgement of Hon'ble Apex Court, the reference court decided the reference afresh and this
time compensation was awarded at the rate of Rs. 400/- per sq. yard along with consequential
benefits vide judgement and order dated 2.1.2013. This judgment and decree of the reference
court is under challenge by the State of UP.

Submission of learned Standing Counsel is that the reference court has illegally and
arbitrarily enhanced the market value of the acquired land against the settled principle of law
and that the SLAO has awarded just and adequate compensation as per provisions of the Act.
It was submitted that at the time of publication of a notification under Section 4 of the Act the
disputed land was undeveloped land and has no fertility and there was no facility of irrigation
and no bus station, police station, industrial centre and no market facility was near the
acquired land and the land in question was at a great distance from the residential place and
there was no facility of any transport/traffic still the court below calculated the enhanced
market value of the acquired land. It is next submitted that the land in question was not plain
land but heavy amount was spent in the development of the acquired land, as such the
government is liable to get the deduction of at least 40% in respect of the development of the
acquired land, which was not considered by the reference court at the time of passing of the
impugned judgement and decree. It is also submitted that the land in question was acquired
for the purpose of permanent construction of 'Chachar Nala' Dariyabad, Allahabad and the land
at the time of acquisition was in a very bad shape and has no potentiality, fertility etc. and the
SLAO, Allahabad has awarded the just and adequate compensation after considering the
market value of the acquired land. It is submitted that the reference court has awarded the
compensation on the basis of per sq. yard, which is contrary to law as laid down by the Hon'ble
Apex Court as it has been held that in case of agricultural land, the compensation is not to be
awarded on the basis of per sq. meter or per sq. yard. (WORDS 500)
 EXERCISE NO. 68 (Part 8) Company Matter

Learned counsel for the respondents-plaintiffs Sri Shyam Divan, relying on the
judgment of this Court in the case of Uttam Singh Duggal & Co. Ltd. vs. United Bank of India
(supra) has submitted that in view of the balance sheets and resolutions of the company, they
are to be considered as admissions, otherwise it will amount to narrowing down the scope of
the Rule itself. In the aforesaid judgment itself, this Court has held that when a statement of
admission is brought before the Court, as long as the party making the statement is given
sufficient opportunity to explain such admissions, judgment on admission can be delivered. In
the case on hand, it is to be noted that the relief claimed under Order XII Rule 6 of CPC by
filing a written application claiming admission only based on the statement made by the
advocate in the bail application and there is no other pleaded admissions in the application
filed by the respondents-plaintiffs. It is a trite principle that any amount of evidence is of no
help in absence of pleading and foundation in the application. It is true that when categorical
and unconditional admissions are there, judgment on admission can be ordered without
narrowing down the Rule but at the same time the judicious discretion conferred on the court
is to be exercised within the framework of the Rule but not beyond. Even on balance sheets of
the company and the note of one of the Directors, it is the specific case of the appellants that
the third respondent in connivance with the respondents-plaintiffs is also working against the
appellants. In that view of the matter the claim of the respondents-plaintiffs relying on the
documents relating to company is to be considered with reference to the defence of the
appellants during trial in the suit.

In a judgment rendered in the case of Karan Singh & Ors. vs. Lal Chand Public
Charitable Trust & Another (supra), this Court has interpreted the expression “otherwise” as
used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order
XII Rule 6 is wider in comparison to provision of Order XII Rule 1 of CPC. It is true that after
amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the
expression “otherwise” inserted in Order XII Rule 6 is also to be considered within the
framework of the Rule but not beyond. In any event, the admissions are categorical and
unconditional, whether any inference can be drawn on admissions having regard to documents
placed on record, is a matter to be considered having regard to facts of each case. There
cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC. In view
of the serious factual disputes and the defence of the appellants in the suit, it is not
permissible for making roving inquiry for disposal of the application filed under Order XII Rule
6 of CPC. (WORDS 512)
 EXERCISE NO. 69 (Part 8) Criminal Matter (Vol. 42 Ex. 3)

It is vehemently submitted by the learned advocates appearing on behalf of the State

as well as the prosecutrix that the present case is not a case of mere breach of promise to
marry, as contended by the learned Senior Advocate appearing on behalf of the accused. It is
submitted that in the present case, from the very beginning and from the inception, the
intention of the accused was not to marry with the prosecutrix and he was to marry one
another lady Radhika Soni. It is submitted that despite the above he called the prosecutrix at
his residence and by giving promise that he would marry, he had a sexual intercourse with the
prosecutrix. It is submitted that in fact the prosecutrix initially objected to have any sexual
intercourse, however, as the accused gave assurance and promise that he would marry, the
prosecutrix gave consent. It is submitted that as the consent was obtained by the accused on
misconception of fact and therefore, the same cannot be said to be a consent even considering
Section 90 of the IPC and the consent was on misconception of fact, both the courts below
have rightly held the accused guilty for the offence under Section 376 of the IPC. It is further
submitted by the learned advocates appearing on behalf of the State as well as the prosecutrix
that even the conduct on the part of the accused which is born out from the record that when
the parents of the accused and the prosecutrix subsequently met to fix the marriage, instead
of remaining present the accused ran away. It is submitted that it has come in evidence that
the accused was already to marry one another lady Radhika Soni and therefore, there was no
intention on the part of the accused from the very inception not to marry the prosecutrix and
despite the same by giving false promise to marry, he obtained the consent of the prosecutrix
and had a sexual intercourse. It is submitted that therefore in the facts and circumstances of
the case, it has been established and proved beyond doubt that the consent given by the
prosecutrix was on misconception of fact and therefore the same cannot be said to be a
consent and therefore the appellant-accused is rightly convicted under Section 376 of the IPC.

Learned advocates appearing on behalf of the respondent-State as well as the original

complainant-prosecutrix have relied upon certain decisions of this Court on Section 375 of the
IPC, Section 90 of the IPC and on consent on misconception of fact and on consensual sex,
which will be referred to and considered hereinafter. Now so far as the reliance placed on the
decisions of this Court, relied upon by the learned counsel appearing on behalf of the accused,
referred to hereinabove, learned advocates appearing on behalf of the State as well as the
original complainant-prosecutrix have submitted that none of the aforesaid decisions shall be
applicable to the facts of the case on hand. (WORDS 501)
 EXERCISE NO. 70 (Part 8) Criminal Matter

Applying the law laid down by this Court in the aforesaid decisions to the facts of the
case on hand, we are of the opinion that in the facts and circumstances of the case, neither the
learned Trial Court nor the High Court have committed any error in summoning the appellants
herein to face the trial along with other co-accused. As observed hereinabove, the appellants
herein were also named in the FIR. However, they were not shown as accused in the
challan/charge-sheet. As observed hereinabove, nothing is on record whether at any point of
time the complainant was given an opportunity to submit the protest application against non-
filing of the charge-sheet against the appellants. In the deposition before the Court, P.W.1 and
P.W.2 have specifically stated against the appellants herein and the specific role is attributed to
the accused-appellants herein. Thus, the statement of P.W.1 and P.W.2 before the Court can
be said to be “evidence” during the trial and, therefore, on the basis of the same and as held
by this Court in the case of Hardeep Singh (supra), the persons against whom no charge-sheet
is filed can be summoned to face the trial. Therefore, we are of the opinion that no error has
been committed by the Courts below to summon the appellants herein to face the trial in
exercise of power under Section 319 of the CrPC.

Now, so far as the submissions made on behalf of the appellants herein relying upon
the orders passed by the learned Magistrate dated 01.09.2016 and 28.10.2016 that once the
appellants herein were discharged by the learned Magistrate on an application submitted by
the Investigating Officer/SHO and, therefore, thereafter it was not open to the learned
Magistrate to summon the accused to face the trial in exercise of power under Section 319 of
the CrPC is concerned, it appears that there is some mis-conception on the part of the
appellants. At the outset, it is required to be noted that the orders dated 01.09.2016 and
28.10.2016 cannot be said to be the orders discharging the accused. If the applications
submitted by the Investigating Officer/SHO and the orders passed thereon are considered,
those were the applications to discharge/release the appellants herein from custody as at that
stage the appellants were in judicial custody. Therefore, those are the orders discharging the
appellants from custody. Under the circumstances, the submission on behalf of the accused
that as they were discharged by the learned Magistrate and therefore it was not open to the
learned Magistrate to exercise the power under Section 319 of the CrPC and to summon the
appellants to face the trial, cannot be accepted. In view of the above and for the reasons
stated above, we see no reason to interfere with the impugned judgment and order passed by
the High Court confirming the order passed by the learned Magistrate summoning the accused-
appellants herein to face the trial in exercise of the power under Section 319 of the CrPC.

(WORDS 497)
 EXERCISE NO. 71 (Part 8) Criminal Matter

Relying on the above said order, learned counsel for the appellant submits that
respondent State ought to get first the order dated 10.03.2016 granting bail to appellant
cancelled before seeking custody of the appellant. It may be true that by mere addition of an
offence in a criminal case, in which accused is bailed out, investigating authorities itself may
not proceed to arrest the accused and need to obtain an order from the Court, which has
released the accused on the bail. It is also open for the accused, who is already on bail and
with regard to whom serious offences have been added to apply for bail in respect of new
offences added and the Court after applying the mind may either refuse the bail or grant the
bail with regard to new offences. In a case, bail application of the accused for newly added
offences is rejected, the accused can very well be arrested. In all cases, where accused is
bailed out under orders of the Court and new offences are added including offences of serious
nature, it is not necessary that in all cases, earlier bail should be cancelled by the Court before
granting permission to arrest an accused on the basis of new offences. The power under
Sections 437 (5) and 439 (2) are wide powers granted to the court by the Legislature under
which Court can permit an accused to be arrested and commit him to custody without even
cancelling the bail with regard to earlier offences. Sections 437(5) and 439 (2) cannot be read
into restricted manner that order for arresting the accused and commit him to custody can only
be passed by the Court after cancelling the earlier bail.

Coming back to the present case, the appellant was already into jail custody with
regard to another case and the investigating agency applied before Special Judge, NIA Court to
grant production warrant to produce the accused before the Court. The Special Judge having
accepted the prayer of grant of production warrant, the accused was produced before the
Court on 26.06.2018 and remanded to custody. Thus, in the present case, production of the
accused was with the permission of the Court. Thus, the present is not a case where
investigating agency itself has taken into custody the appellant after addition of new offences
rather accused was produced in the Court in pursuance of production warrant obtained from
the Court by the investigating agency. We thus do not find any error in the procedure, which
was adopted by the Special Judge, NIA Court with regard to production of appellant before the
Court. In the facts of the present case, it was not necessary for the Special Judge to pass an
order cancelling the bail dated 10.03.2016 granted to the appellant before permitting the
accused appellant to be produced before it or remanding him to the judicial custody. In view of
the foregoing discussions, we arrive at the conclusions in respect of a circumstance where after
grant of bail to an accused, further cognizable and non-bailable offences are added. (512)
 EXERCISE NO. 72 (Part 8) Date of Birth (Vol. 42 Ex 4)

Mr. Ravindra Singh, learned senior counsel appearing on behalf of the second
respondent has urged that the discrepancies, which have been brought out in the course of the
cross-examination of the former Manager of the school, would indicate that there is a doubt in
regard to the authenticity of that certificate. However, in our view, what must weigh against
the second respondent’s submission is that the date of birth, which has been recorded in the
certificate of the Saket Vidya Sthali, completely matches the date of birth which was
voluntarily disclosed by the second respondent both while obtaining his driving licence as well
as the Aadhaar card. In both those documents, the originals of which were seized during the
course of the investigation and have been produced before this Court, the date of birth is
reflected as 17 December 1995. The driving license and the Aadhaar card are not stand-alone
documents. The submission of the learned senior counsel that the date of birth in those
documents may have been furnished by the accused to obtain an undue advantage cannot
simply be accepted since it tallies with the date of birth indicated in the school records of Saket
Vidya Sthali school.

It is evident from the above analysis that the date of birth which was forwarded in the
roll of students of Maa Anjani Senior Secondary School, Shikohabad was the sole basis of the
date of birth which was recorded in the matriculation certificate. The date of birth in the
records of Maa Anjani Senior Secondary School where the second respondent was a student
from Class V to Class X is without any underlying document, as stated by the Principal in the
course of the enquiry before the JJB. On the other hand, there is a clear and unimpeachable
evidence in the form of the date of birth which has been recorded in the records of Saket Vidya
Sthali school which is supported by the voluntary disclosure made by the second respondent
while obtaining both the Aadhaar card and the driving licence. The High Court reversed the
findings of the Sessions Judge purely on the basis of the matriculation certificate. For the
reasons which we have indicated, the date of birth as reflected therein cannot be accepted as
authentic or credible. Once we come to the conclusion that the date of birth of the second
respondent is 17 December 1995, he was not entitled to the claim of juvenility as of the date
of the alleged incident which took place on 18 August 2015. For the above reasons, we allow
the appeal and set aside the impugned judgment and order of the High Court dated 14
November 2018. Criminal Revision 2952 of 2017 shall in consequence stand dismissed. The
order passed by the Sessions Judge, confirming the decision of the JJB rejecting the claim of
juvenility is accordingly maintained. The second respondent shall accordingly be dealt with in
accordance with law on the basis of the finding recorded in the present judgment, rejecting the
claim of juvenility. (WORDS 506)
 EXERCISE NO. 73 (Part 8) Probationer Matter

In the view that we have taken, the High Court has erred in concluding that the case of
the first respondent falls within the second category of cases enumerated in Satya Narayan
(supra). Rule 105 (2) stipulates the satisfaction of the appointing authority as a condition
precedent to the issuance of an order of confirmation. Admittedly, no order of confirmation was
issued by the appointing authority. The case of the first respondent falls squarely within the
third category of cases enumerated in Satya Narayan (supra) wherein though the rules
prescribe a maximum period of probation and the probationer is continued beyond the expiry
of the probationary period, the substantive appointment of the probationer is subject to a
specific act on the part of the appointing authority of issuing an order of confirmation. In the
absence of an order of confirmation, the first respondent did not acquire the status of a
confirmed employee. In the present case, the first respondent served as a probationer for
nearly five years. Rule 105(1) permits the appointing authority to extend the period of
probation with the prior permission of the Director. The proviso stipulates that no prior
approval of the Director is required for the extension of the probationary period by the
appointing authority of a minority institution. The amending history of the provision shows that
prior to the amendment in 1990, no prior approval of the Director was required. By virtue of
the Amending Rules 1990 the prior approval of the Director was made mandatory, save and
except for extensions in the case of minority institutions, for the grant of any extension in the
probationary period. The absolute discretion vested with the appointing authority of an
institution was made subject to the prior approval of the Director. The power vested in the
Director serves as a check on the absolute discretion of the appointing authority to extend the
probationary period. Rule 105(1) stipulates that the services of a probationer may be
terminated without notice during the period of probation where the services of the probationer
are not, in the opinion of the appointing authority, satisfactory. Rule 105(2) stipulates that an
order of confirmation may be issued if, in the opinion of the appointing authority, the
performance of the probationer is satisfactory. The discretion of the Director must be exercised
objectively on the basis of the material produced by the appointing authority bearing on the
performance of a probationer. The prior approval of the Director, save and except for minority
institutions, is mandatory and must be complied with as a condition precedent for the valid
exercise of the power to extend the period of probation. The Director is required to assess the
determination of the appointment authority and based on that assessment, to decide whether
to approve an extension of the probationary period. The provision which mandates that the
prior approval of the Director shall be sought before extending the period of probation ensures
that the appointing authority may not extend the probationary period without legitimate
reason. (WORDS 502)
 EXERCISE NO. 74 (Part 8) Landlord-Tenant Matter

Reliance placed by learned counsel for the respondent in Swaraj Singh (supra) is
misplaced. In that case, the landlord had filed an eviction suit described as Title Suit No. 36 of
1973 to evict the tenant. The trial court held that the relationship of landlord and tenant had
not been proved and since the tenant had raised the question of title, the proper course would
be to dismiss the suit and not to convert it into a declaratory suit because the suit was neither
for declaration of title nor had the plaintiff paid ad valorem court fee. The trial court dismissed
the suit as there was no landlord and tenant relationship but upheld the plaintiff’s claim of title.
In the appeal, the first appellate court observed that by filing a suit for eviction and paying
court fee on twelve months alleged rent, the plaintiff had adopted a tricky way of getting the
title decided. The plaintiff then filed a suit on title and the trial court decreed the suit. The first
appellate court allowed the appeal and dismissed the suit. In the second appeal before the
High Court, the question was whether the judgment and decree regarding title passed in the
earlier suit shall operate as res judicata between the parties on the question of title. The High
Court observed that pleas taken by both parties regarding title in both the title suits are the
same and answered the question in affirmative. This Court endorsed the High Court’s view and
held that the issue of title was directly and substantially an issue between the parties in the
earlier eviction suit, hence the High Court was right in holding that the finding of title recorded
in the earlier suit would operate as res judicata in the subsequent suit. This view was expressly
restricted by this Court to the facts before it. This Court clarified that ordinarily it is true that in
a suit for eviction even if the court goes into the question of title, it examines the issue in an
ancillary manner and in such cases any observation or finding on the question of title would
certainly not be binding in any subsequent suit on the dispute of title. This Court further
clarified that the case with which it was dealing fell in an exceptional category of very limited
number of cases. Thus, in our opinion, no parallel can be drawn from Swaraj Singh.

In view of the above, we are of the opinion that the High Court was wrong in setting
aside the concurrent finding of fact recorded by the courts below that the respondent had
denied the title of the appellant. We are of the view that the present case is covered by Section
12(1)(c) of the M.P. Act. It is, therefore, necessary to restore the decree of eviction. In the
circumstances, we allow the appeal. The impugned judgment of the High Court is set aside and
eviction decree passed by the trial court and confirmed by the first appellate court under
Section 12(1)(c) of the M.P. Act is restored. (WORDS 511)
 EXERCISE NO. 75 (Part 8) Criminal Matter

Learned counsel submits that the finding of the High Court that an incident took place
without pre-meditation so as to bring the case within the Exception 4 of Section 300 of the
Penal Code, is based on no evidence whatsoever. On the contrary, the evidence clearly
establishes that the respondent was armed with a lethal weapon which was used to inflict a
serious injury on a vital part of the body of the deceased. Learned counsel submits that the
mere fact that there was a single blow, is not a circumstance which would warrant the
conviction under Section 302 being altered to one under Section 304. On the contrary, learned
counsel submitted that the case would fall under Section 300 since the act of the respondent
was so imminently dangerous that it must in all probability cause death or such bodily injury as
is likely to cause death.

On the other hand, learned counsel appearing on behalf of the respondent submitted
that the case of the prosecution has been disbelieved by the Trial Court in regard to the two
co-accused-Rajesh and Jagdish. According to this submission, the prosecution had sought to
adduce evidence to the effect that a lathi had been used in the course of the incident by the
two co-accused. This was not accepted by the Trial Court. Hence, emphasis was placed on the
evidence of PW-5 that the injury could have been caused due to a blunt object. The judgment
of the High Court convicting the respondent under 304 ought not to be disturbed. In assessing
the rival submissions, it would be necessary to advert to the evidence of the four eye-
witnesses who have been believed, both by the Trial Court and by the High Court, insofar as
the complicity of the respondent is concerned. PW-2, who is the complainant, has deposed to
the genesis of the incident. The evidence of PW-2 on the involvement of the respondent finds
abundant corroboration in the deposition of PW-1 Basanti Devi, PW-2 Satya Narayan Swami,
PW-3 Nathu Ram and PW-4 Gyarsi Lal. His presence is hence established in any event beyond
all reasonable doubt. From the evidence of these witnesses coupled with the medical evidence,
it has emerged that the respondent inflicted an axe blow in the centre of the skull of the
deceased. The evidence of PW-5 was clear in indicating that the injury was caused with the
help of a sharp edged weapon. The injury on the skull lead to coma and was the cause of
death. Coupled with these circumstances is the recovery of the weapon of offence which was
found to be blood stained. On the basis of this unimpeachable evidence, it is clear that : (i)
death was caused as a result of the injury inflicted upon the skull of the deceased by the use of
the axe; and (ii) the respondent was the author of the injury and wielded the axe, as a result
of which death was the immediate and natural cause. (WORDS 499)
 EXERCISE NO. 76 (Part 8) MBBS Course Matter

Learned Advocate appearing on behalf of the respective petitioners has vehemently

submitted that the case of the petitioners for admission in the MBBS Course under the
reserved category of PWD for the academic year 2019-20 shall not be governed by notification
dated 04.02.2019 and that they shall be governed by the MCI Regulations, 2017. It is
submitted that the relevant date to ascertain eligibility of the petitioners for medical course is
to be determined on the date when the process of selection commenced. It is submitted that
on the relevant date MCI Regulations, 2017 dated 22.01.2018 were applicable and therefore,
eligibility for medical course is to be determined in terms of the provisions of the said
Regulations. It is submitted that Appendix ‘H” to the notification amending the Regulations,
2017, which came into force with effect from 04.02.2019, therefore, shall not be applicable. It
is further submitted by the learned counsel appearing on behalf of the petitioners that rules of
game cannot be changed midway, as per the settled proposition of law.

In support of his above submission, learned counsel for the petitioners has heavily
relied upon the recent decision of this Court dated 30.05.2019 in Writ Petition (Civil) No. 55 of
2019, titled Janhit Abhiyan vs. Union of India. It is submitted that in the said decision, this
Court has held that the EWS reservations could not be made applicable midway after the
selection process for medical PG of 2019, which commenced in the month of November, 2018,
whereas notification reserving EWS quota came in February/March, 2019. It is further
submitted by the learned counsel appearing on behalf of the petitioners that even otherwise
the petitioners are eligible under Regulations, 2019 also, as they fulfil the required percentage
disability between 40.80%. It is submitted that the minimum percentage disability to be
eligible for availing reservation under PWD is 40%. It is submitted that while rejecting the
petitioners to be not eligible for medical course, the State Government has not at all
considered the fact that PWD is bound to have certain problems including the parameters
mentioned in Appendix ‘H’ with clause (f) of Clause 4(1) of the Regulations, 2019. Now so far
as the submission on behalf of the petitioners that notification dated 04.02.2019 shall not be
applicable and the erstwhile Regulations shall be applicable and the relevant date should be the
date on which the process for admission has started, i.e., in the month of November, 2018, it
is vehemently submitted that the relevant date for eligibility criteria would be the date on
which the petitioners were to get admission. It is submitted therefore that the date on which
the petitioners applied for admission in medical course under PWD quota and appeared before
the Medical Board, that should be the relevant date and the notification came into force on
04.02.2019, the same shall be applicable. Making the above submissions, it is prayed to
dismiss the present writ petitions. (WORDS 490)
 EXERCISE NO. 77 (Part 8) Suit matter

The Trial Court decreed the suit on 01.06.1994 and granted time to the plaintiff for
deposit of the balance consideration within two months from 01.06.1994 i.e. by 31.07.1994.
The plaintiff offered no explanation whatsoever for the failure to comply with the direction.
After expiry of the time granted for deposit, on 02.08.1994 the plaintiff filed an application
before the Trial Court that in view of the pendency of the First Appeal preferred by defendants,
the time for deposit may be extended as otherwise the amount would lie in the bank without
interest. On 02.08.1994 itself, the time for deposit was extended till disposal of the First
Appeal. The defendants’ challenge to the exparte order was unsuccessful on technical grounds.
There can be no straight jacket formula with regard to readiness and willingness. It will have to
be construed in the facts and circumstances of each case in the light of all attending facts and
circumstances. We are of the considered opinion that in the facts and circumstances of the
present case, the failure of the plaintiff to offer any explanation why the balance consideration
was not deposited within the time granted, the filing of the application for extension of time
after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the
application for extension that the money would lie in the bank without earning interest, are all
but evidence of incapacity on part of the plaintiff to perform his obligations under the
agreement and reflective of lack of readiness and willingness. He preferred to wait and abide
by the gamble of a favourable decision in the first appeal.

The grant of relief for specific performance under Section 16 (1)(c) of the Act is a
discretionary and equitable relief. Under Section 16 (1)(c), the plaintiff has to demonstrate
readiness and willingness throughout to perform his obligations under the contract. The plea
that the amount would lie in the bank without interest is unfounded and contrary to normal
banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness
and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for
deposit could be extended under Section 28 of the Act. But the mere extension of time for
deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness
coupled with special circumstances beyond his control to seek such extension. The plaintiff did
not aver in the application that he was ready and willing to perform his obligations and was
prevented from any special circumstances from doing so. The pendency of an appeal by the
defendants did not preclude the plaintiff from depositing the amount in proof of his readiness
and willingness. The High Court has rightly observed that there was no stay by the Appellate
Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The
grant of extension of time cannot ipso facto be construed as otherwise demonstrating
readiness and willingness on part of the plaintiff. (WORDS 507)
 EXERCISE NO. 78 (Part 8) Arbitration matter (Vol. 42 Ex 4)

In view of the finding arrived at by the learned Arbitral Tribunal that the termination of
the contract was illegal and without following due procedure as required under the contract
and in view of allowing the claims of the claimants partly, the Arbitral Tribunal dismissed the
counter claims submitted by the petitioners. The award declared by the learned Arbitral
Tribunal has been confirmed by the First Appellate Court in a proceeding under Section 34 of
the Arbitration Act. The same has been further confirmed by the High Court by the impugned
judgment and order in an appeal under Section 37 of the Arbitration Act. Feeling aggrieved and
dissatisfied with the impugned judgment and order passed by the High Court dismissing the
appeal under Section 37 of the Arbitration Act and consequently confirming the award passed
by the learned Arbitral Tribunal, the original respondents-State and others have preferred the
present special leave petition.

Learned counsel appearing on behalf of the petitioners has vehemently submitted that
the High Court has materially erred in dismissing the appeal under Section 37 of the Arbitration
Act and has materially erred in not properly appreciating the fact that the arbitral award was
passed contrary to the materials on record. It is vehemently submitted by the learned counsel
appearing on behalf of the petitioners that the High Court has materially erred in not properly
considering that the suspension under the agreement was not the suspension of work per se,
rather was suspension of all payments to the consultants and therefore, there was no question
of dilution/go-bye of the suspension letter. It is further submitted that the High Court has not
properly appreciated/considered the scheme of the contract. It is submitted that in case of
non-performance of the contract satisfactorily, the first step was suspension of payment and if
the failure in performance is not remedied, then the consequence which follows is the next step
that being notice of termination by issuing 30 days’ notice. It is submitted that therefore the
High Court has materially erred in confirming the findings recorded by the learned Arbitral
Tribunal that the termination of the contract was illegal and without following due procedure as
required under the contract. While opposing the present special leave petition, learned counsel
appearing on behalf of the respondents-original claimants has vehemently submitted that there
are concurrent findings of fact recorded by all the Courts below on the illegal termination of the
contract. It is submitted that on appreciation of evidence, the learned Arbitral Tribunal gave
the specific findings by giving cogent reasons that the termination of the contract was illegal
and without following due procedure as required under the contract. It is submitted that once
the findings recorded by the learned Arbitral Tribunal are on appreciation of evidence and
considering the materials on record, the same is rightly not interfered with by the Courts below
in the proceedings under Sections 34 and 37 of the Arbitration Act. (WORDS 490)
 EXERCISE NO. 79 (Part 8) Mortgage Matter (Vol. 42, Ex. 6)

We thus hold that when the Corporation takes steps for recovery of the amount by
resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the
balance amount would start only after adjusting the proceeds from the sale of assets of the
industrial concern. As the Corporation would be in a position to know as to whether there is a
shortfall or there is excess amount realised, only after the sale of the mortgage/hypothecated
assets. This is clear from the language of sub-Section (1) of Section 29 which makes the
position clear that where any industrial concern, which is under a liability to the Financial
Corporation under an agreement, makes any default in repayment of any loan or advance or
any installment thereof or in meeting its obligations in relation to any guarantee given by the
Corporation or otherwise fails to comply with the terms of its agreement with the Financial
Corporation, the Financial Corporation shall have the right to take over the management or
possession or both of the industrial concern as well as the right to transfer by way of lease or
sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial
Corporation. Even otherwise, it must be mentioned that the Division Bench was in error in
stating that the right to personally recover the balance terminates after the expiry of three
years. It must be remembered that the question of recovery of balance will only arise after the
remedy in respect of the mortgage deed has first been exhaustive. If a mortgage suit was to
be filed, the period of limitation would be 12 years. In such a suit, a prayer can also be made
for a personal decree on the sale proceeds being insufficient.

It is thus clear that merely because the Corporation acted under Section 29 of the
State Financial Corporation Act did not mean that the contract of indemnity came to an end.
Section 29 merely enabled the Corporation to take possession and sell the assets for recovery
of the dues under the main contract. It may be that only the Corporation taking action under
Section 29 and on their taking possession they became deemed owners. The right to claim for
the balance arose under the contract of indemnity, only when the sale proceeds were found to
be insufficient. The right to sue on the contract of indemnity arose after the assets were sold.
The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to
old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of
indemnity/guarantee would arise when the contract is broken. Therefore, the period of
limitation is to be counted from the date when the assets of the Company were sold and not
when the recall notice was given. The up-shot of the aforesaid discussion is to hold that the
present appeal is bereft of any merits. Upholding the judgment of the High Court, we dismiss
the instant appeal. (WORDS 510)
 EXERCISE NO. 80 (Part 8) Landlord-Tenant

There is a specific reference to the registered document under which the appellant
purchased the suit building from the earlier landlord in the plaint. Yet, in the written statement
the respondent denied the title of the appellant. We notice that there are several documents on
record relating to the ownership of the appellant, apart from the registered sale deed, such as
municipal tax receipts, ration card etc. Yet, the respondent refused to acknowledge the
appellant’s title. He denied it in his evidence. This is not a simple case of denial of derivative
title by a person who did not know about the purchase of the building by the landlord. Even
after going through the relevant documents relating to the appellant’s title the respondent
feigned ignorance about it. The High Court has accepted that in his cross-examination the
respondent has stated that he was not accepting the appellant as his landlady. The High Court
has, however, gone on to say that by this piece of evidence no decree of eviction can be
passed against the respondent under Section 12 (1)(c) of the M.P. Act because the respondent
will have no occasion to establish in what circumstances he denied the title of the appellant.
The High Court has further held that the respondent was within permissible limit in asking the
appellant to produce documentary evidence about his title as a landlord. The High Court, in our
opinion, fell into a grave error in drawing such a conclusion. Even denial of a landlord’s title in
the written statement can provide a ground for eviction of a tenant. It is also settled position in
law that it is not necessary that the denial of title by the landlord should be anterior to the
institution of eviction proceedings.

The High Court has expressed that the respondent was justified in asking the appellant
to produce the documents. Implicit in this observation is the High Court’s view that the
respondent could have in an eviction suit got the title of the appellant finally adjudicated upon.
There is a fallacy in this reasoning. In eviction proceedings the question of title to the
properties in question may be incidentally gone into, but cannot be decided finally. Similar
question fell for consideration of this Court in Devaki Nandan. In that case it was argued that
the landlady was not entitled to inherit the properties in question and hence could not maintain
the application for eviction on the ground of default and sub-letting under the A.P. Tenancy
Act. This Court referred to its decision in Tej Bhan Madan vs. 2 nd Additional District Judge and
others, (2011) 9 SCC 444 in which it was held that a tenant was precluded from denying the
title of the landlady on the general principle of estoppel between landlord and tenant and that
this principle, in its basic foundations, means no more than that under certain circumstances
law considers it unjust to allow a person to approbate and reprobate. (WORDS 493)
 EXERCISE NO. 1 p

Learned counsel for the District Cooperative Banks, however, submitted that the Reserve Bank of
India must assure that the entire amount offered by the District Cooperative Banks for exchange after due
verification in the form of demonetized notes, will be duly replaced by commensurate amount of legal
tender notes contemporaneously. The learned Attorney General on instructions submitted that the policy of
replacement of legal tender notes as applicable to Public Sector Banks and other Banks will be applied
even in the case of District Cooperative Banks for exchange of demonetized currency with the legal tender
currency. We accept the assurance given by the learned Attorney General in this behalf.

The other broad point was about extending the time limit for exemption for use of demonetized
currency notes of Rs.500/- and Rs.1000/- at specified counters as per the relevant Notifications issued in
that behalf by the Reserve Bank of India. It was contended that the exemption period provided in the
concerned notification is expiring. Hence, it will not be possible to deposit the demonetized notes at
specified counters thereafter, even in case of emergency situation like hospitalization, travel by Railway or
Air etc. In our opinion, whether the exemption period should be extended or not must be best left to the
judgment of the Government of the day with a hope that the Government will be responsive and sensitive
to the problems encountered by the common man. Accordingly, we decline to issue any interim direction to
the Government in the matter of extending the period of exemption and leave it open to the Government
to take appropriate decision in that behalf, as may be advised.

The other serious grievance made by the petitioners is about the denial of right to withdraw the
prescribed amount of Rs.24,000/- per week per account holder, in spite of Notification issued by the
Reserve Bank of India permitting such withdrawal. It was submitted that if the Government has issued
such Notification after due consideration, it is obliged to ensure that its commitment made under the said
Notification is implemented without any exception. The ground reality, however, contends learned counsel,
is that the Banks are refusing to pay full amount of Rs.24,000/- per account holder per week on the
ground of non-availability of enough volume of legal tender currency. According to the learned Attorney
General, the Government has already made it amply clear that it would take around 50 days time to
streamline the cash flow. That period is still not exhausted. He submits that as of now the Reserve Bank of
India has been able to infuse around Rs.5,00,000/- of the new legal tender notes in the form of Rs.500/-
and Rs.2,000/-. That is almost over 40% of the amount of demonetized notes already deposited with the
Banks. Further, the Authorities are working to the best of their ability to defuse the crisis of cash flow
situation by printing new notes. (WORDS 485)

It is further submitted that for the nature of decision taken by the Government to unearth the
black money or unaccounted money and to dry up the terror fund and defeat the attempt of circulation of
large scale counterfeit currency, maintaining complete secrecy of such a decision was imperative. For that
reason, new currency notes could not be printed well in advance. He submits that the old demonetized
notes will be replaced by new legal tender notes in the form of Rs.500/- and Rs.2000/- progressively in
right earnest. Considering the stand taken by the learned Attorney General, we may commend to the
Authorities to fulfill their commitment made in terms of the stated Notification permitting withdrawal of
Rs.24,000/- per account holder of the Bank per week to the extent possible and review that decision
periodically and take necessary corrective measures in that behalf. (WORDS 143)
 EXERCISE NO. 2

The trial court, after analysing the evidence, found that there were few contradictions in the
statement of PW-1 and her daughter PW-2 with regard to the period of stomach ache and the duration for
which she was on medication by the local doctor/private chemist. However, in the opinion of the Sessions
Court, these were very minor discrepancies. The Sessions Court noted that the prosecutrix was only nine
years old child when the incident happened and she was only twelve years of age when she deposed in the
Court and, therefore, it could not be expected of her to report each and every fact by giving minute
details. The trial court further observed that both the witnesses withstood the test of credibility as even
after undergoing detailed cross-examination their depositions on vital aspects remained firm and could not
be shaken.

The main argument advanced by the defence before the trial court was that it was a case of
inordinate delay where reporting to the Police was three years after the incident. The trial court, however,
was not convinced by this argument. In the judgment given by the trial court, detailed reasons are given,
which will be discussed at the appropriate stage by us, as to how, in the given circumstances, the
prosecution was able to explain the delay. Taking aid of various pronouncements of this Court on this
aspect, the trial court concluded that the said delay had not dented the case of the prosecution. Other
argument of the defence that PW-1, mother of the prosecutrix, had filed false complaint to implicate the
respondent on account of family feud was also not found to be convincing.

In the ultimate analysis, the trial court believed the statement of the prosecutrix as true since it
was supported by medical evidence on record. It was found to be trustworthy and not shrouded with any
doubt. The trial court pointed out that the statement of PW-8 clearly suggested that the prosecutrix was
forcefully raped by the respondent and as a result of that her hymen was ruptured and her external anal
sphincter was also torn. Even internal sphincter was not continence. She found that anal sphincter of the
prosecutrix was not functioning properly. In the opinion of PW-8, on account of injury to the prosecutrix's
anal sphincter, she might be a sufferer throughout her life.

Another argument of the defence before the trial court was that it was impossible that such an
incident would have occurred in the house where so many family members lived. In such circumstances, it
could not be believed that the respondent would have taken the prosecutrix to the room on the first floor
and committed sexual intercourse. This argument was also brushed aside by the trial court pointing out
that, in her cross- examination, the prosecutrix has stated that the incident had taken place in the morning
hours, around 8:00 a.m. to 9:00 a.m. Female members of the family returned back to the house after one
hour of the incident. (WORDS 500)

The prosecutrix had stated that she had not disclosed about the incident to anyone since the
respondent had threatened to kill her and also did not disclose to her mother on phone, out of fear. She
was not conversant how to make a call on phone. The Sessions Court found that the testimony of the
prosecutrix appeared to be true. It could not have been expected of a child of tender age to narrate the
incident or share the happening with her to anyone when she had been put under fear by the accused.
Even she could not disclose this incident to her mother. Her testimony that she did not disclose to her
mother out of fear on phone appeared probable to the Session Court, keeping in view her tender age.
(131)
 EXERCISE NO. 3 p

By no means, it is suggested that whenever such charge of rape is made, where the victim is a
child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already
discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order
to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time,
after taking all due precautions which are necessary, when it is found that the prosecution version is worth
believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one
has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such
abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within
than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even
reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting
social stigma. Another deterring factor which many times prevent such victims or their families to lodge a
complaint is that they find whole process of criminal justice system extremely intimidating coupled with
absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the
criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach
towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting
effects on such victims.

After thorough analysis of all relevant and attendant factors, we are of the opinion that none of
the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled
that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons
which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the
testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to
inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such
cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be
taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can
be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the
court finds it difficult to accept her version, it may seek corroboration from some evidence which lends
assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one
who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. (496)

It would be adding insult to injury to tell a woman that her claim of rape will not be believed
unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the
evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration
has no substance. From the evaluation of the prosecution material discussed above, it is abundantly clear
that the evidence brought on record contains positive proof, credible sequence of events and factual truth
linking the respondent with rape of the prosecutrix and had criminally intimidated her. Hence, respondent
is found to be guilty for offence under Sections 376 (2)(f) and 506 of IPC since he committed rape with a
minor girl aged nine years. It is pertinent to point out at this stage that at the time of deposition of the
prosecutrix in the Court, the trial court had an opportunity to see her demeanor.
 EXERCISE NO. 4

It appears that after hearing the arguments of learned counsel for the parties, the learned
Tribunal came to the conclusion that the accident took place due to rash and negligent driving of DCM
truck, bearing registration No. UP-78/N-3907 and in the said accident the deceased Dr. Rajeev Kumar had
received serious injuries and due to that he died. The Tribunal further came to the conclusion that at the
time of accident the offending vehicle was insured with the United India Insurance Company Ltd., and the
policy was valid on the date of accident. The Tribunal also found that at the relevant time all the papers
relating to offending vehicle i.e. driving licence of the driver, registration certificate, permit and fitness
certificate etc. are valid and effective. Thus the insurance company is liable to indemnify the owner. The
learned Tribunal after discussing the materials available on the record further came to the conclusion that
the claimants are entitled to receive compensation to the tune of Rs. 16,39,320/- with 6% interest.
Against the aforesaid finding, by which learned Tribunal assessed the compensation, this appeal filed by
the claimants and appellant further prayed for enhancement of the compensation.

It is submitted by Sri Vidya Kant Shukla, the learned counsel for the appellants that the learned
Tribunal while assessing the compensation had deducted 1/3 amount towards the personal expenses of the
deceased. It is submitted that in the instant case, on the date of filing of claim application as well as on the
date of passing of judgment, altogether 5 persons were dependent upon the deceased. Thus as per the
judgment of the Hon'ble Supreme Court in Sarla Verma and others Vs. Delhi Transport Corporation and
another reported in (2009) 6 SCC 121, only ¼ amount is liable to be deducted from the total income of the
deceased towards personal expenses. It is then submitted that the learned Tribunal while assessing the
compensation had arbitrarily refused to add any amount in the income of the deceased towards future
prospect. It is submitted that admittedly at the time of accident the deceased was working as Animal
Medical Officer under the State Government. The Tribunal assessed the age of the deceased as 48 years.
Thus in view of the judgment of the Hon'ble Supreme Court in Sarla Verma (supra) it is imperative for the
Tribunal to make addition of 30% in the income of the deceased, because the deceased was in the age
group of 40 to 50 years. It is further submitted that the learned Tribunal had wrongly deducted Rs. 16,
420/- from the income of the deceased which the claimant No. 1 is getting from the State Government
towards family pension. It is submitted that in view of the various judgment of Hon'ble Supreme Court and
of this Court family pension, received by the widow of the deceased, is not liable to be deducted from the
income of the deceased. Therefore, it is submitted that the entire assessment of compensation made by
the Tribunal is illegal and against the law laid down by the Hon'ble Supreme Court. (WORDS 513)

On the other hand, Sri G.K. Srivastava, learned counsel appearing for the insurance company
submitted that the Tribunal had assessed the compensation in accordance with law. It is submitted that
1/3 amount of the income was deducted by the Tribunal in view of the II Schedule of the Motor Vehicles
Act. It is further submitted that the learned Tribunal refused to give benefit of future prospect, because the
claimants had not adduced any evidence to show that in future income of the deceased will be enhanced.
The Tribunal had further stated that their may be chance that the claimant No. 1 will get compassionate
amount due to death of deceased. Accordingly, it is submitted that the aforesaid finding of learned Tribunal
does not require any interference.
 EXERCISE NO. 5

It is settled principle of law that the evidence of interested or related witnesses should be
considered with caution and until and unless it is found to be trustworthy the conviction of accused on the
basis of evidence of related or interested witness is not justified. In view of the discussions made above
and considering the unnatural conduct of PW-1 and PW-2, I am of the considered view that they are not
proved to be eye witnesses of the incident of enticing away victim by accused/ appellant in presence of co-
accused persons or otherwise and their testimony is neither reliable nor trustworthy.
In the present case the only eye witnesses of the incident, PW-1 and PW-2, are admittedly closely
related witnesses and their conduct has been found unnatural in not disclosing and not helping the first
informant. The conduct of father of the victim in not lodging the FIR and not appearing before the trial
court for stating on oath that his daughter is missing and has been enticed away by the accused/ appellant
with the help of other co-accused or otherwise and the conduct of PW-3/ first informant, who himself is a
law graduate and is also alleged to be an Advocate in not mentioning the names of alleged eye witnesses
in the FIR and lodging of FIR with inordinate delay of 4 days at midnight without any whisper about the
love affair if any, between the victim and the accused/ appellant and further the undisputed disability of
accused/ appellant makes the entire prosecution story highly improbable and doubtful and gives strength
to the arguments that the father of victim and his family members including first informant, on account of
property dispute have falsely implicated the accused/ appellant and his family members, due to suspicion.
In view of the facts and circumstances of the case, there is sufficient reason for drawing adverse
inference against the prosecution for not producing the parents of victim to the witness box before the trial
court. The evidence on record shows that PW-1 and PW-2 were not the eye witnesses of alleged incident of
fetching the victim by accused/ appellant in broad day light at 10.00 a.m. instead of choosing sometime of
loneliness in the late evening or early morning, and they have been set up subsequently in order to
improve the case against the accused persons. The above witnesses are interested witnesses and their
unnatural conduct and contradictory testimony is not reliable for holding the accused/ appellant guilty and
the learned trial court has misread the evidence on record. I am of the considered view that the
prosecution has failed to prove its case to the hilt beyond any shadow of reasonable doubt and has failed
to bring home the charges against any of the accused by any cogent, reliable, independent and
trustworthy evidence. Considering the totality of facts and circumstances, it is a fit case where the
accused/ appellant is entitled to be given the benefit of doubt and the prosecution case is liable to be
rejected. The accused/ appellant is also entitled for an order of acquittal. (WORDS 516)

PW-1 and PW-2 are only chance witnesses and have also stated to have enquired into with co-
accused as to where the victim and accused/appellant have gone, but even when no reply was given by
them, they did not inform the first informant or father of the victim, which is also quite unnatural and their
conduct in not doing so despite being related, makes their contention of being eye witnesses doubtful and
untrustworthy. Similarly on alleged asking by PW-1 and PW-2 from Rajendra and others, not giving any
threat by them is quite unnatural, while on mere enquiry by the first informant, they allegedly threatened
him. The first informant has not assigned any reason when neither he was eye witness of the occurrence
nor got any information from alleged eye witnesses then why and on what ground he approached the
family members of accused/ appellant i.e. co-accused persons for enquiring about the victim.
 EXERCISE NO. 6

Sri Raghvendra Kumar Singh, learned Senior Counsel for the respondent-University has invited
the attention of the Court to the entire material relating to parliamentary debates, the deliberations of the
Standing Committee of the Parliament and the objects and reasons to contend that firstly, the University
was established under a special Act, namely, the 1994 Act. The said Act clearly provided for special
reservation for Scheduled Castes/Scheduled Tribes and accordingly, the First Academic Ordinances provide
for 50% reservation to such classes. He therefore submits that this stood protected and could not be
abrogated by the general provisions of the 2006 Act. His contention is that the 1994 special Act continues
to hold the field and any exercise of framing of Ordinances under the said Act that provides for 50%
reservation could not have been taken away for which the amendment in the 2012 Act came to be
introduced. He submits that the respondent-University being a special university meant to uplift the cause
of Scheduled Castes/ Scheduled Tribes in particular is fully justified in providing 50% reservation which
stands protected under Article 15 (5) of the Constitution of India. He submits that even if the validity of
the 2006 Act has been upheld the same does not abrogate the provisions of the 1994 Act that can still
exist independently and which now stands even otherwise protected with the 2012 amending Act.

He contends that the petitioners having not challenged the competence of the Parliament or
prayed for declaring the said provisos as ultra vires to Part-III of the Constitution of India, the wisdom of
the legislature in introducing the statutory limitations cannot be said to be violative of Article 14 of the
Constitution of India. He submits that the provisos simply preserve and contain what was provided under
the 1994 parent Act of the University and hence all the arguments advanced on behalf of the petitioners
deserve to be rejected. He has also questioned the locus standi of the petitioners on the ground that
reservation is not a fundamental right and no such rights can be enforced by the petitioners. He then
submits that the University Ordinances were also laid before the Parliament and there is a presumption of
the validity of the 50% reservation provided for in the Ordinances. On the issue of interpretation, he
submits that the provisos, if literally as they stand, carve out an exception which does not in any way
violate either the main clause of Section 3 being an exception to the same and once having been included,
the wisdom of the Parliament or the reasonableness thereof cannot be questioned by the petitioners. He
submits that the purpose of a proviso is to make a provision which but for the proviso would not be in the
main Section and the same can also simultaneously stand with the main Section. There is a presumption
against implied repeal as such the 2006 Act does not override the 1994 Act, which is a special Act.

(WORDS 496)

Sri S. K. Kalia, learned Senior Counsel for the intervenors contends that the amending Act of 2012
does not in any way affect the status of the respondent-University or the reservation to the extent of 50%
provided by it under the 1994 Act which is a special Act. He submits that this special Act would exist and
any action taken thereunder cannot be questioned on the ground of any provision being made later on
through another act of Parliament. There is neither any repeal nor a presumption of implied repeal. The
First Ordinances of the University have the status of law and have come to form part of the Statute itself.
The 1994 Act being a special law would override the general provisions of the 2006 Act as amended in
2012. The statement of objects and reasons as well as the legislative debates leave no room for doubt that
the 2012 amending Act clearly intends to preserve the status of the University and also the extent of
reservation in favour of Scheduled Castes/Scheduled Tribes as was existing prior to the 2006 Act.
 EXERCISE NO. 7

Having noticed the factual basis for the preferment of the petition and the disclosures made by
the respondents, we now proceed to note the primary legal submissions which have been advanced in
these proceedings. Learned counsel for the petitioner while reiterating the averments made in the writ
petition has contended that large scale scams occurred in the authorities and more particularly NOIDA
clearly being indicative of the fact that all was not well. He asserted that the State Government even in the
matter of posting of officers must act in a manner which inspires confidence in the public at large and that
its action must not reflect of favouritism in favour of a select few. It was contended that the continuance of
the twelfth respondent was clearly detrimental to the public interest, without justification in law and that
the State Government was continuing to accord him protection despite various scams and allegations
having been leveled against the twelfth respondent and NOIDA. It was, therefore, submitted that larger
public interest clearly warranted removal of the twelfth respondent from the post of CEO NOIDA.

The learned counsels for the respondents have apart from addressing submissions on the merits
of the allegations leveled in the petition, in unison, taken serious objection to the entertainment of the PIL
itself and have submitted that the instant petition was neither bona fide nor did it espouse any issue of
public interest. In this respect, we note that not only the learned Advocate General but also Sri Ravi Kant
learned senior counsel and Sri Ravindra Singh learned counsel who appeared for the twelfth respondent
have taken serious objection to this Court having entertained the instant PIL itself. It was submitted that
the instant proceedings are a clear abuse of the process of Court and it is apparent that quite far from
espousing any issue of public interest, the same has come to be instituted at the behest and instance of
unknown and interested quarters. Learned counsel drew the attention of the Court to the fact that the
petitioner was stated to be a society registered and resident at Allahabad and that in the entire petition,
there was no material which may have even remotely indicated its activities or area of operations. It was
alleged that there was a complete non disclosure in the writ petition of particulars required under Chapter
XXII Rule 3A of the Allahabad High Court Rules, 19525. Learned counsel submitted that the writ petition
carried not one averment of any public or social service which the petitioner society may be stated to have
performed. Additionally, it was contended that the writ petition itself did not bring on record either the
Memorandum or Articles of the society so as to indicate its aims and objectives. In fact learned counsel
submitted that the petition had been instituted and entertained even in the absence of a resolution of the
society deciding to institute the present proceedings and authorizing the petitioner in that regard. (496)

The attention of the Court was further drawn to the fact that none of the office bearers of the
society had come forward to even affirm the affidavit in support of the petition and that the writ petition
itself had been preferred on the strength of an affidavit of a 24 year old resident of District Kaushambi,
who was stated to be engaged in farming. Viewed in this light, learned counsels submitted that the petition
clearly lacked bona fides and should have been dismissed at the threshold itself. It was contended that it is
petitions like the present which have sullied the field of public interest litigation and have consequently
invited adverse comment from the Supreme Court as well as this Court. He submits that this Court would
clearly be transgressing the limits of its jurisdiction under Article 226 to the Constitution in interfering with
such actions of the Government. It is his submission that issues of the nature which stand raised in this
petition would clearly invite the Court to step into an arena which is within the exclusive domain and
discretion of the State Government.
 EXERCISE NO. 8

On the issue of the power of the Deputy Registrar to decide membership, Dr. L. P. Mishra, learned
counsel for the appellants could not dispute the legal position that such a power is available to the Deputy
Registrar under Section 4-B of the Societies Registration Act, 1860 as applicable in the State of U.P. In our
opinion also, the Deputy Registrar has failed to exercise his authority in this regard on the most important
issue which ought to have been gone into for holding of any fresh elections. Further, the fact that the
previous elections setup by Hriday Narayan Mishra would not be recognized and fresh elections deserve to
be held was accepted by the faction of Hriday Narayan Mishra including the appellant who was shown to be
a member of the General Body as depicted by Hriday Narayan Mishra. The appellant also did not question
the authority of the Deputy Registrar to hold fresh elections.

In such a situation, if the Deputy Registrar was to hold fresh elections, and if objections had been
filed against the membership again before him before holding of the elections on 1.9.2013, then the
Deputy Registrar was under an obligation to have decided the issue of membership. It is apparent from the
objections raised by the respondent No.2 at every stage that he had been contesting the very electoral
college of 24 members of the Deputy Registrar indicating it to be the fake list which was not adjudicated
upon considering the objections of the respondent No.2 in the order dated 6.8.2013. In our opinion, this
was a blatant flaw in the order of the Deputy Registrar who under a wrong impression or otherwise a
deliberate wrong procedure adopted by him, did not choose to decide the issue of the dispute of
membership and the electoral college entitled to participate in the elections. The decision making process
was therefore clearly vitiated and the Deputy Registrar failed to decide an issue that went to the root of
the matter. Accordingly, the learned Single Judge did not commit any error in exercising a writ of certiorari
and issuing a direction to decide the matter again. We therefore fully endorse the view taken by the
learned Single Judge on this count as well.

We for all the reasons recorded here-in-above decline to interfere with the impugned judgment
with a direction to the Deputy Registrar to decide the issue of the membership of the General Body
keeping in view the objections raised by the respondent No.2 from time to time and after giving an
opportunity of hearing to both the parties. Since the Principal, Government Inter College, Ambedkar Nagar
had continued to manage the affairs of the Society after 13.3.2013 under the directions of the learned
Single Judge and which was not challenged, we do not find any reason to interfere with the aforesaid
direction as well under the impugned judgment. (WORDS 482)

We however clarify that the Deputy Registrar shall decide the issue of membership in the light of
the observations made by the learned Single Judge and what has been stated above, but since the parties
are not at variance on the issue of membership of Hriday Narayan Mishra being rightly annulled, quashing
of the order dated 6.8.2013 would not amount to reviving the issue of the decision of the membership of
Hriday Narayan Mishra which would be treated to have become final between the parties to this appeal.
The Special Appeal stands disposed off accordingly.
 EXERCISE NO. 9

The aforesaid judgment dated 04.09.2015 rendered by Hon'ble Single Judge in the case of
Mahaveer Singh (supra) was challenged by the State of U.P. by filing Special Appeal Defective No. 884 of
2015 and the Division Bench of this Court by means of its Judgment and order dated 12.01.2016 while
setting aside the judgment and order dated 04.09.2015, passed by the Hon'ble Single Judge has observed
that mere recommendation made in the said case by the Superintendent of Police for giving out of turn
promotion, did not confer any indefeasible or vested right of promotion. The Division Bench further
observed that once the Government Order dated 07.06.2014 had taken effect, which has the effect of
rescinding the office memorandum dated 03.02.1994, any promotion which is required to be made would
necessarily have to be governed by the statutory rules which hold the field. The Division Bench, thus, held
that a conscious policy decision has been taken by the State Government based on the exigencies of the
service and in terms of the Government Order dated 07.06.2014, the office memorandum dated
03.02.1994 would stand rescinded and that the scheme of out of turn appointments would stand
substituted by monetary compensation. It is, thus, in the background of the aforesaid facts that the
Special appeal was allowed and the judgment rendered by Hon'ble Single Judge in the case of Mahaveer
Singh (supra) was set aside.

So far as the law laid down by the Division Bench in the aforesaid Special Appeal is concerned,
there cannot be any quarrel. However, what is noticeable here is that the facts of the present case and the
facts of the cases which were subject matter of the decision by the Division Bench in the Special Appeal
Defective No. 884 of 2015 are distinguishable. The distinction between the facts of the present case and
the facts which were under consideration before the Division Bench in the Special Appeal lie in relation to
the date on which right of consideration for grant of out of turn promotion crystallized in favour of the
petitioner in this writ petition and the persons who were seeking out of turn promotion in the case of
Mahaveer Singh (supra). There is no dispute that all the matters which were decided by Hon'ble Single
Judge by means of judgment and order dated 04.09.2015, though recommendations had been made for
grant of out of turn promotion prior to issuance of the Government Order dated 07.06.2014 and the
incidents on the basis of which such recommendations were made, had occurred prior to the said date i.e.
prior to issuance of Government Order dated 07.06.2014, however, in none of the said cases the matter
was finally decided by the authorities in terms of the Government Order dated 03.02.1994. To the contrary
in the instant case, the decision was also taken for not granting out of turn promotion to the petitioner on
05.03.2013 which became subject matter of challenge before the U.P. Public Service Tribunal in the claim
petition filed by the petitioner. (WORDS 505)

Thus, this Court while examining the matter is called upon to see the legality or otherwise of the
decision taken by the respondents for not granting out of turn promotion to the petitioner and such
decision in this case was taken prior to issuance of the Government Order dated 07.06.2014. Mere
recommendation may not confer any indefeasible right or vested right to seek out of turn promotion,
however, the fact remains that the case of the petitioner was already rejected on 05.03.2013 prior to
promulgation of the new policy by the State Government by notifying Government Order on 07.06.2014.
The Tribunal while examining the validity of the rejection order dated 05.03.2013 has come to the
conclusion that the case of the petitioner for grant of out of turn promotion was rejected unlawfully and it
is in this background that the Tribunal had directed the authorities concerned to reconsider the case of the
petitioner for grant of out of turn promotion.
 EXERCISE NO. 10

Having noticed the salient fact on which there is not much dispute, this Court is firstly constrained
to observe that there is no material or evidence to indicate what steps the Corporation took between 30
April 1996 to 3 February 1998. There is not one shred of evidence to indicate as to whether any notice was
issued to the petitioner during this period to participate in the disciplinary proceedings. As noticed above,
although the order dated 24 April 1998 asserts that various dates had been fixed by the Enquiry Officer
appointed on 17 February 1997, no such notice has been placed on the record nor have details of any such
notice been alluded to or disclosed in the affidavit filed in these proceedings on behalf of the Corporation.
Even the order sheet which stands appended along with the counter affidavit of the Corporation refers to
dates which were fixed in 1996. On the above state of the record, the submission of the learned counsel
for the petitioner that the disciplinary proceedings were revived only in 1998 after a long spell of
unexplained silence and inaction appears to have force. On 17 February 1998, the Corporation although
being fully aware of the pendency of the disciplinary proceedings, proceeded to pass an order holding that
the petitioner would be treated to have retired from service with effect from 31 January 1998. If the
petitioner was permitted to retire with effect from 31 January 1998, this Court fails to comprehend what
authority inhered in the Corporation to proceed with or continue the disciplinary proceedings or to inflict
any punishment upon the petitioner.

As noted above, no statutory provision, rule or regulation prevalent in the Corporation was
referred to or relied upon to sustain the continuance of the disciplinary proceedings after the retirement of
the petitioner on 31 January 1998. Once the petitioner had retired from service no authority vested in the
Corporation to continue with the disciplinary proceedings which had been initiated against the petitioner.
Retirement of an employee cuts the cord which connects the two entities and severs all relationship of
master and servant or employer and employee. The retirement of an employee brings the curtain down
upon the relationship of employer and employee. Once this event occurs, no further jurisdiction or
authority vests in the employer to inflict any punishment upon the employee thereafter. Even otherwise
the following facts also need to be highlighted. Admittedly the enquiry report was submitted on 19
February 1998. A reading of the said report which stands appended as Annexure-14 clearly shows that the
Enquiry Officer has not recorded his satisfaction in respect of the guilt of the petitioner on the basis of any
material or evidence on record. The only conclusion recorded by the Enquiry Officer is that since the
petitioner did not cooperate with the disciplinary proceedings and that from his conduct, it is clear that he
does not want the proceedings to be concluded, he had no option but to record a finding that the charges
stand proved. (WORDS 505)

It is trite law that even if disciplinary proceedings are continued and culminate ultimately ex
parte, the Enquiry Officer is under a positive obligation to record his satisfaction with respect to the
charges levelled against the delinquent employee with reference to the evidence based upon which the
employer seeks to take action against the employee. Even this rudimentary and settled principle was not
borne in mind by the Enquiry Officer. The mistake committed by the Enquiry Officer, as noted above, was
reiterated by the Disciplinary Authority inasmuch as neither in the order dated 24 April 1998 nor in the
order dated 13 August 1999, has the Disciplinary Authority recorded any independent satisfaction with
respect to the guilt of the petitioner based upon the evidence or material on record. This, of course,
subject to the caveat that the failure of the Enquiry Officer to record his conclusions on each charge is not
a flaw which could perhaps have been cured by the Disciplinary Authority for the first time.
 EXERCISE NO. 11

Now, the question that begs consideration in the light of the submissions advanced across the bar
is whether the principles of natural Justice were observed in compliance or not. As stated hereinabove,
Rule 81 of Rule 1976 does prescribe observance of the principles of natural justice. From a close scrutiny
of the inquiry report dated 29.10.1993, it transpires that the inquiry officer has found the petitioner guilty
on the basis of the reply to the charge-sheet submitted by the petitioner and other documents but not a
single witness was examined by the Inquiry Officer in the presence of the petitioner and also no date, time
and place was fixed by the Inquiry Officer. It is not discernible from the enquiry report that the petitioner
was never granted any opportunity of personal hearing or cross-examine the witnesses and in the
circumstances, there appears to be non-compliance of Regulation 81 (a) of the 1976 Rules which enjoins
due observance of the principles of natural justice. In this connection, Article 14 of the Constitution of
India may also be referred, which clearly postulates that authority competent to pass orders is required to
record reasons, which is one of the principles of natural justice governing exercise of power by the
Administrative Authority. It is well enunciated in various decisions of the High Court and the Apex Court
that the disciplinary authority has to apply his mind to the record apart from the finding recorded by the
Inquiry Officer before coming to the conclusion whether the charge of misconduct has been proved against
the delinquent.

Merely asking the petitioner to submit an explanation, in my opinion, is not sufficient where it is
proposed to impose a major punishment. There are two kinds of hearings; a personal hearing and second
non-personal hearing. When it is proposed to impose a minor punishment such as with-holding of
increments or a fine or warning, a non-personal hearing would suffice. In a non-personal hearing all that
has been done is that the delinquent employee is issued a show cause notice to which he gives a written
reply, and on that reply, the punishment is straightway imposed giving reasons. In such a case, it is not
necessary to hold a full fledged oral inquiry giving the concerned employee an opportunity of producing his
witnesses and cross-examining the witnesses against him. However, when it is proposed to impose a
major punishment like dismissal, ordinarily a full fledged enquiry must be held. This is because a major
punishment not only has very serious consequences upon the employee but would adversely affect the
family. Hence, the law imposes a stricter and elaborate procedure requiring a full fledged oral enquiry in
cases of major punishment. In such cases, it is ordinarily necessary for the employer to issue a notice to
the employee indicating the date, time and place of the enquiry after appointing an Inquiry Officer. On the
date and time fixed, the witnesses against the concerned employee is required to be examined ordinarily in
his presence and he must be given an opportunity to cross-examine them. (WORDS 512)

Coming to the aspect of observance of principles of natural justice in the instant case, it is explicit
from a perusal of the enquiry report that no date, time and place was fixed by the enquiry officer. As
stated hereinabove, it would crystalize from a perusal of the enquiry report that the disciplinary authority
did not reckon that the Enquiry Officer did not fix any date, time and place and no witness was examined
by the inquiry officer. The Apex Court has repeatedly emphasized for observance of the principles of
natural justice. In Meenglas Tea Estate v. Their Workmen AIR 1963 SC 1719 the Supreme Court
propounded in clear words that it is an elementary principle that a person who is required to answer the
charge must know not only the accusation but also the testimony by which the accusation is supported. He
must be given a fair chance to hear the evidence in support of the charge and to put such relevant
questions by way of cross-examination as he desires.
 EXERCISE NO. 12

It is to be noticeable that Hon'ble Supreme Court while laying down the law that in contempt
jurisdiction no positive mandatory direction can be issued outside the scope of the order which is being
alleged to have been violated by the authorities, has elaborately observed therein that the purpose of
contempt jurisdiction is to uphold majesty and dignity of the courts of law. It has further been observed
that the Contempt of Courts Act has been introduced for the purposes of securing the feeling of confidence
of the people in general for true and proper administration of justice in the country. Hon'ble Supreme
Court has further held that it is to be kept in mind that the Court while exercising the jurisdiction to punish
for contempt does not function as an original or appellate court for determination of the disputes between
the parties and thus, Contempt Court is not entitled to enter into questions which have not been dealt with
and decided in the judgment or order, violation of which is alleged. The ratio of the said judgment of
Hon'ble Supreme Court in the case of Rakesh Prasad (supra) is not being disputed by the learned counsel
appearing for the respondents and in my opinion as well, it can not be disputed. It is not in dispute that
the Contempt Court cannot grant any substantive relief or issue any direction in respect of the same
without proper adjudication of the dispute. If any such mandatory direction is issued, which is outside the
scope of the order or judgment which is said to have been violated, such a direction would be without
jurisdiction and would not be binding.

Having observed as above, what needs to be considered in the facts and circumstances of the
case is as to whether the direction issued by the Hon'ble Contempt Judge in the order dated 09.04.2012
directing the Basic Education Officer, Ambedkar Nagar to continue with single hand operation of the salary
account can be termed to be a direction without jurisdiction adjudicating upon an issue or it would be
construed only to be a direction issued in the aid of the High Court for ensuring compliance of its order
dated 14.12.2011. The circumstances in which the order dated 09.04.2012 was passed by the Hon'ble
Contempt Judge have been noticed in the said order itself. At the cost of repetition, it may be observed
that even after passing of the order on 26.03.2012 directing therein single hand operation of the salary
account, payment of salary to the teaching and non-teaching staff could not be ensured and in fact a
dispute arose during the Court proceedings before Hon'ble Contempt Judge on 09.04.2012 when the
cheque as presented by the Basic Education Officer was returned back to him noticing the dispute between
two Managers. In such a situation, I am of the considered opinion that the direction issued by Hon'ble
Contempt Judge for continuance of the single hand operation of the salary account in the order dated
09.04.2012 was not a direction issued by the Court on its own. (WORDS 512)

It may also be noticed that on 09.04.2012 when the order was passed by Hon'ble Contempt Judge
at least two writ petitions, namely, writ petition nos.1081 (M/S) of 2011 and 1244 (M/S) of 2011 were
pending which in fact are still pending, where substantively the issue raised is in respect of the dispute
concerning management of the institution. Keeping in view pendency of the aforesaid writ petitions, it was
only observed by the Contempt Judge in his order dated 09.04.2012 that single hand operation already
made by the District Education Officer, Ambedkar Nagar would continue till disposal of the writ petitions
pertaining to the dispute of genuine Manager of the college. Such a direction, in my opinion, cannot be
construed or constituted as a fresh direction and hence, would not fall in the category of any mandatory
direction outside the scope of the jurisdiction available before Hon'ble Contempt Judge for ensuring
compliance of the order dated 14.12.2011 passed by this Court in Writ Petition No.6299 (S/S) of 2011.
 EXERCISE NO. 13

In the present case, it is not in dispute that the Authorized Controller was appointed by the State
Government in exercise of the powers under Sections 57 and 58 of the Universities Act, and since then he
has been holding charge of the Committee of Management of the College. It is also not in dispute that
neither the Registrar, at any point of time during this period, nor the Authorized Controller either took any
steps or made any efforts to hold the election of office bearers of the Committee of Management. Further,
it is also not in dispute that the Registrar, insofar as the questions that fall for our consideration are
concerned, was authorized to call a meeting of the general body of such society for electing such office
bearers, if he was satisfied that election of office bearers of a society had not been held within the time
specified in the rules of that society, and that he did not exercise such powers. Furthermore, it is not in
dispute that the bye laws of the Trust provide for such an election after every three years and within the
time stipulated therein. The time to hold elections after expiry of the term of the last elected body got over
long back, i.e. before 1988 and, at no point of time, did the Registrar make any effort or exercised his
powers conferred under sub-section (2) of Section 25 of the Act, 1860 to call a meeting of the general
body for electing office bearers of the Committee of Management as contemplated therein. As is evident
from the referral order, the Division Bench was of the view that so long as Section 25(2) of the Societies
Registration Act, 1860 existed on the statute book no mandamus could have been issued by the Court
directing any authority other than the Registrar to hold elections of registered societies. It was further
observed that a mandamus so issued would be contrary to law. It is based upon the said conclusions that
the first question has been framed for our consideration.

In our considered view, the conclusion reached by the Division Bench is based upon the
assumption that Section 25(2) is firstly of a mandatory character, and secondly that the same confers
exclusive jurisdiction and authority on the Registrar alone. Here it becomes pertinent to note that the
powers exercisable by the Registrar in terms of sub-section (2) by the very nature of the power conferred
is apparently directory in nature. The power conferred on the Registrar becomes exercisable upon him
being satisfied that an election of office bearers of a society has not been held within the time specified
under its rules or bye laws. The provision then prescribes that upon such satisfaction being arrived at, the
Registrar "may" call a meeting of the general body of such society for election of its office bearers. It
becomes further relevant to note that all further actions that the Registrar takes from this point onwards
has to be in accordance with the provisions of the rules of the society relating to meetings and elections.

(WORDS 517)

The very language of the provisions indicates that the power vested in the Registrar under sub-
section (2) is directory and permissive. Sub-section (2) in our considered opinion, is neither couched in
mandatory terms nor is it liable to be interpreted in a manner where we may be compelled to hold that the
Registrar must necessarily convene a meeting of the general body of the society immediately upon the
term of the erstwhile committee having come to an end or fresh elections having not been held. This we so
hold in light of the fact that there may be varied circumstances in which elections of office bearers of a
society may not come to be held within the time specified under its rules. It cannot be said that in all
situations where elections of office bearers of the society have not been held, the same is attributable to a
deliberate default on the part of the existing office bearers. A stark example is the present case itself
where on account of the appointment of the Authorised Controller as far back as in 1988, the elected office
bearers stood removed and were unable to hold any elections whatsoever.
 EXERCISE NO. 14

The dispute in this petition narrows down to the controversy as to whether the petitioner, who has
been found entitled to receive the information as per the order passed in second appeal on 07.11.2016, is
to be provided on payment of additional fee or is to be provided free of cost. The challenge raised is to the
order dated 01.02.2017 with a prayer to quash the same. The contention of the petitioner is that the Public
Information Officer who was obliged to provide the information erroneously, rejected the application of the
petitioner and in spite of having succeeded in the second appeal on 07.11.2016, the information was not
supplied within the period of 30 days as contemplated under Section 7(1) of the Right to Information Act,
2005. Even thereafter, that is upon the decision dated 07.11.2016 the situation remains the same. The
petitioner is entitled for supply the entire information free of cost after expiry of 30 days.

Replying to the said submissions, Sri Shikhar Anand submits that keeping in view the nature of
the provisions of Section 7(1) and 7(6) of the Act, the said period of limitation in such a fact situation,
would not be available to the petitioner inasmuch as the Public Information Officer had rejected the
application on 28.12.2015 itself which was within the period of 30 days. Consequently, if the information
was not required to be tendered and the jurisdiction had been exercised by the Public Information Officer
well within the time prescribed, then in that event, the petitioner cannot claim receipt of information free
of cost in the circumstances of the present case where the second appeal was decided on 07.11.2016.
More-so where the petitioner himself had filed a recall application that came to be disposed of on
01.02.2017. He, therefore, submits that the claim of the petitioner being not tenable, there is no infirmity
in the impugned order nor the petitioner can claim the information free of cost.

A perusal of the aforesaid provisions, leaves no room for doubt that the information has to be
provided within 30 days of the application. The admitted position is that the application was rejected within
the period of 30 days. The petitioner, thereafter, filed a first appeal that was rejected on 04.02.2016 and
then filed the second appeal which was allowed on 07.11.2016 to the extent indicated therein. However,
while allowing the second appeal, the State Information Commissioner proceeded to direct that the
information shall be tendered to the petitioner on payment of additional fee to be calculated as per Rules.
It is this part of the order by which the petitioner is aggrieved after the recall was rejected on 01.02.2017
contending that the Public Information Officer was found to have not supplied the information to which the
petitioner was entitled and, therefore, after the expiry of 30 days of moving of the application, the
information has now to be supplied free of cost to the petitioner. (WORDS 491)

In the instant case, what has happened is that the order had been passed rejecting the application
within 30 days. Thus, after the rejection of the application, there was no obligation on the part of the
P.I.O. to provide the information. This situation is however different where the second appeal of the
petitioner has been allowed on 07.11.2016. The question is whether the limitation period of 30 days as
provided for under Section 7(1) will continue to be available to the petitioner after the said order or not.
We find that the Public Information Officer has to be compulsorily present according to the relevant
procedure of appeals provided under the 2012 Rules. It is not the case of the respondents that the P.I.O.
was not informed or was not aware of the order dated 07.11.2016. It is otherwise also not possible
inasmuch as if the appeal has to be heard in the presence of the Public Information Officer, then the
presumption is that the Public Information Officer had full and complete knowledge of the order dated
07.11.2016. The providing of information of the passing of the order, therefore is not an obligation on the
part of the petitioner.
 EXERCISE NO. 15

It is further submitted that the learned trial court while convicting the appellants had relied upon
the alleged recovery of stolen articles from the possession of the appellants. PW-1 to PW-4 had nowhere
stated in their deposition that any stolen articles recovered from the possession of these appellants nor the
person who identified those articles have been examined by the prosecution. It is further submitted that
even the Officer who conducted test identification parade of stolen articles, had not been examined. Thus,
the finding of the learned trial court regarding the recovery of stolen articles from the possession of the
appellants is without any evidence. In view of the aforesaid submissions, learned counsels appearing for
the appellants has submitted that the impugned judgment and order of sentence cannot be sustained.

On the other hand, Ms. Nand Prabha Shukla, learned Additional Government Advocate appearing
for the State submitted that in the instant case the appellants were identified by four witnesses, therefore,
they have been rightly convicted by the learned trial court. It is submitted that though the appellants were
arrested on 04.01.1979, but some culprits arrested on 14.02.1979, thus, there was no delay in holding
Test Identification Parade. Moreover, the said delay had been explained. Therefore, the delay in holding
the test identification parade of the appellants is not fatal for the case of the prosecution. It is further
submitted that there is sufficient light at the time of occurrence, therefore, the identification by the
witnesses cannot be disbelieved. Accordingly, it is submitted that the impugned judgment of conviction
and order of sentence passed by the learned court below require no interference in this appeal.

Having heard the submissions, we have gone through the record of the case. In the instant case
the factum of dacoity has not been denied. However, the appellants stated that they have not committed
the present crime rather they have been falsely implicated in this case at the instance of police. Thus, the
only question arose for determination in this case is, whether the appellants have any hand in the
commission of present crime. In the instant case, the prosecution had tried to prove the charges framed
against the appellants on the basis of evidence of PW-1 to PW-4. Prosecution also relied upon the
statement of PW-6 that from the possession of the appellants some stolen articles recovered.

We have considered the prosecution evidence and find that the prosecution tried to prove the
recovery of stolen articles only on the basis of deposition of PW-6, the Investigating Officer. This witness
stated that three dacoits were arrested simultaneously from one place. He further deposed that all these
articles seized because they resembled with the stolen property. From perusal of the entire evidence of the
prosecution, we find that none of the inmates of the family in whose house dacoity took place, had come
forward and stated that the above articles stolen from their house nor they identified those articles in
Court. It further appears that the said articles were not produced in Court. (WORDS 506)

However, the learned trial court had given a finding that the articles recovered from the
possession of appellants were put on test identification parade and the witnesses identified the same as
their stolen property. But surprisingly the test identification chart of stolen articles not proved by any
witness, including the Officer who conducted the test identification parade. Under the said circumstance,
the aforesaid finding of the learned trial court is absolutely without any evidence. Thus, we find that the
part of the judgment of the court below is based on conjuncture and surmises. Now coming to the
identification of these appellants by PW-1 to PW-4, it is worth mentioning that all the witnesses claimed
before PW-5 that they identified the dacoits, while they were committing dacoity. It is an admitted position
that the dacoity was committed inside the house of PW-1 and other persons of the village.
 EXERCISE NO. 16

Learned counsel for the petitioner contended that impugned order of allowing the election petition
of respondent no.-4 was based on three grounds. The first main ground was that Proforma-4 relating to
said election was not available. His contention is that said document relating to Form-4 was not available
because it was present with sealed ballot papers and was not called for perusal. His submission was that
second ground of passing impugned order was the alleged arithmetical error in counting of voters in this
regard. He has submitted that although there appears arithmetical error of one count in counting of votes,
but this will not affect the result because in Form-4 and Form-6 relating to said elections, the total number
of valid and invalid votes were specifically mentioned. Since Form-4 is prepared on the basis of Form-6 and
Form-7, therefore this arithmetical error can be rectified by calculation; and in fact no error was committed
when result of said election was declared. His further submission is that in spite of filing of written-
statement, the Prescribed Authority had found it technically erroneous and had not accepted its pleadings,
although there was no error in said written-statement, which is in accordance with law and procedure and
such pleading should not be discarded at the time of judgment. On the basis of these contentions, learned
counsel for the petitioner prayed for quashing of the impugned order of recounting of ballot papers.

These submission were refuted by Sri H.N. Singh, Senior Counsel for respondent no.-4 who
submitted that written statement of the petitioner was not discarded by the Prescribed Authority, on the
other hand it was considered. He further submitted that impugned order is passed after appreciating the
facts and evidences and after application of judicial mind in which all relevant points including arithmetical
error was also considered. His submission was that in this particular matter admittedly there was
arithmetically error of one vote and the difference of votes of petitioner and of respondent no.-4 was also
only "1" vote, therefore, in interest of justice recounting should be done and accordingly correct order was
passed by Prescribed Authority. His further submission is that there has been specific report of returning
officer that Form-4 relating to ballot counting was not filed in office, and in absence of such important
document, declaration of result of election was erroneous.

So far as point relating to alleged discarding of written-statement is concerned, it is unacceptable

from perusal of the impugned order. In this case issues are framed in any case on the basis of written
statement. In the impugned order, the details of contents of written-statement were mentioned by
Prescribed Authority and it is also mentioned that on the basis of petition and written-statement of
respondent no.-4 seven issues were framed. Thereafter, learned Prescribed Authority had discussed the
evidences available before it and decided all the issues framed before passing the impugned order. Thus, it
is found that written-statement of petitioner was not discarded by Prescribed Authority who had admitted
it, considered its pleadings framed issues and accordingly passed its judgment. (WORDS 511)

So far as the point of arithmetical error in counting is concerned, it is admitted fact that in
calculating total ballot papers difference of one vote was noted. The correct number of votes in all the
polling booths is noted, after compilation of ballot papers in Form Schedule-4. Although, there has been
submission of the petitioner that said Scheduled Form-4 was sealed with original ballot papers but at the
time of hearing this point was not brought before the Prescribed Authority and there was specific evidence
in form of question-answer from District Supply Officer was placed, in which it was mentioned that
returning officer had not deposited the Schedule Form-4 relating to counting of ballots.
 EXERCISE NO. 17

Learned Standing Counsel on the other hand submits that the petitioner cannot claim this
continuance as a matter of right, inasmuch as the State Government has taken a policy decision and by
virtue of the said decision, the collection of toll in relation to certain bridges and ferries has been
withdrawn by the State Government under the impugned Government Order dated 2.12.2016. This being
in public interest cannot therefore be questioned nor any claim can be made by the petitioner to continue
the said lease in his favour. Learned Standing Counsel has invited the attention of the Court to Section 15
of the 1878 Act to contend that after a lease has been let out in terms of Section 8, and if after such
declaration any impediment is caused on account of any such contingency as has happened in the present
case for collection of toll, then the party concerned shall be entitled to the adjustment of the rents that
were payable under the lease agreement. He further submits that if there is any such dispute relating to
the amount of collection of toll or deposit of the money by the petitioner the same can be dealt with by the
appropriate authority in accordance with law.

Having heard the learned counsel for the parties, the question that arises is as to whether the
petitioner who is under a contract is entitled to insist upon the performance of a contract which cannot now
be executed keeping in view the policy decision of the State Government under the notification dated
2.12.2016. Having considered the submissions, what we find is that keeping in view the provisions of
Section 15 of the 1878 Act read with the provisions of Clause 21 of the General Clauses Act, 1897, the
power is there with the State Government and it can as a matter of policy withdraw it's authority to collect
toll on any bridge or ferry. Consequently, the power of the Government is therefore available and the
action cannot be said to be without authority in law.

The question is about the impact of such an order on the petitioner's contract. The petitioner
contends that this amounts to cancellation of the lease which has not been done in accordance with 1878
Act that too even without affording opportunity of hearing or notice. Here, the petitioner will have to face
the principles of res judicata, inasmuch as after the State Government has taken a policy decision,
whereby the performance of the contract would become impossible and secondly, in this situation, a writ
for the enforcement of the balance of the period of contract would not be maintainable more so when the
withdrawal of toll is in larger public interest. This is a surmounting interest against the individual
contractual interest of the petitioner. The petitioner does not therefore have a vested right to claim the
continuance of the contract after withdrawal by the State Government through a valid policy decision.

(WORDS 492)

One of the arguments advanced by the learned Counsel for the petitioner is that if a statutory
provision is there which governs the filed of the contract entered into then any rights vested under the said
statutory exercise of power cannot be taken away by way of a notification as has been done in the present
case. We are not able to accept this proposition for the simple reason that the State Government has
issued the notification in exercise of it's powers under the Act, and we have already referred to Section 15
of the 1878 Act read with the provisions of Clause 21 of the General Clauses Act, 1897. Consequently,
none of the arguments hold any water. The petitioner therefore may consequent to such withdrawal be
entitled to get adjustment or claim with regard to the lease rent that may be permissible under terms and
conditions of the contract and provisions of the 1878 Act as well as the Rules in this regard.
 EXERCISE NO. 18

The defendant contested the claim of the plaintiff and, in paragraph 14 of the written statement, it
was specifically stated that the suit land was earlier in possession of Tanku and, thereafter, it came in
possession of the defendant. The trial court dismissed the suit by judgment and decree dated 06.10.2012.
Against the judgment and decree of the trial court, Civil Appeal No. 227 of 2012 was filed by the plaintiff-
petitioner which remains pending till date. During pendency of the appeal, an application was moved for
amendment in the plaint which came to be dismissed for non-prosecution and, thereafter, again, an
application was moved for amendment which came to be rejected by the impugned order dated
21.11.2016 passed by the appellate court before which the appeal was pending. By the amendment
application, paragraph 4 A was sought to be added in the plaint to take a plea that Tanku did not have any
issue and that he used to reside with the plaintiff and that during his life time, Tanku had transferred
possession as well as title of the suit property to the plaintiff and, therefore, the plaintiff became the owner
in possession of the suit property. The appellate court rejected the amendment on two grounds. The first
ground was that earlier also application for amendment was moved which was rejected and, therefore, the
second application was not maintainable. The second ground was that if the amendment was allowed, the
nature and basis of the claim of the plaintiff would change and, therefore, the amendment would cause
prejudice to the other side.

The submission of the learned counsel for the petitioner is that in so far as the first ground for
rejecting the amendment application is concerned, the same is not legally sustainable because the
rejection of the earlier amendment application was not on merits but was got dismissed as not pressed
inasmuch as there were few technical errors and, accordingly, a fresh application was not barred by
principle of res judicata. The second submission of the learned counsel for the petitioner is that since the
trial court itself had come to the conclusion that the land belongs to Tanku no prejudice would be caused
to the other side if the plaintiff accepts the title of Tanku and amends the plaint accordingly and, in any
case, since the land does not belong to the defendant, therefore, no prejudice would be caused on allowing
of the amendment. From the decisions noticed above, it is thus clear that pre-trial amendments which are
to address the real controversy between the parties in the suit are not to be disallowed ordinarily unless it
seriously prejudices the interest of the other side. But, in a case, where trial has commenced and parties
have led their evidence, at the time of allowing the amendment, the Court, with reference to the facts and
circumstances of each case, has to consider the question of prejudice caused to the other side in the event
of amendment being allowed. (WORDS 499)

Now coming to the submissions made by the learned counsel for the petitioner, in so far as the
first submission of the learned counsel for the petitioner is concerned that may have some substance
because if the earlier application for amendment was dismissed as not pressed, then it may not be a bar to
filing a fresh application. But in so far as the second submission is concerned, same cannot be accepted
because the plaintiff had instituted the suit by claiming right over the land as Sehan, which came to be
vested, under Section 9 of the U.P.Z.A. & L.R. Act, whereas, by amendment, the petitioner has taken a
complete change in his stand by claiming that the land was of Tanku who had transferred possession and
title of the same during his lifetime to the plaintiff. The said plea cannot be permitted, at this stage,
particularly, when the defendant had taken a stand in the written statement that earlier the land was in
the possession of Tanku and, thereafter, it came in possession of the defendant.
 EXERCISE NO. 19

Section 13(1) and (2) of the SARFAESI Act, 2002 quoted above proceeds on the basis that
security interest needs to be enforced expeditiously without intervention of the court or any tribunal. The
legislative purpose for conferring the power on the secured creditor to enforce its security interest by
taking recourse to Section 13(4) of the SARFAESI Act, 2002 without intervention of the court is to free the
secured creditor of the impediment contained in Section 69 of the Transfer of Property Act. Under the
provisions of the SARFAESI Act, 2002, a secured creditor is empowered by virtue of section 13 of the said
Act to take any of the measure including the sale of secured assets without intervention of the court and
notwithstanding the limitation of Section 69 of the Transfer of Property Act. As would be evident from
perusal of statement of object and reasons of the Act, one of them is facilitating reconstruction of financial
assets acquired by exercising powers of enforcement of securities or change of management or other
powers which are proposed to be conferred on the banks and financial institutions. The scheme of the
SARFAESI Act, 2002 makes it clear that it does not deal with the dispute between the secured creditors
and the borrower and on the contrary, it deals with the rights of the secured creditors. The Act proceeds
on the basis that the liability of the borrower has crystallized and his account stands classified as non
performing asset in the hands of bank or financial institution. Non performing account is an account which
becomes nonviable and non performing in terms of the guidelines issued by the Reserve Bank of India.
Such account is an asset available with the bank and financial institution as it represents a sum receivables
and realisation by the bank or financial institution and in that sense it is an asset in the hands of the
secured creditors. SARFAESI Act, 2002 was primarily enacted to reduce the non performing assets by
adopting such measures for recovery which was fast and uninterrupted by any intervention of the court or
tribunal but also for reconstruction.

Under the provisions of the SARFAESI Act, 2002, all the rights vested in the secured creditors in
respect of a non performing account which is a crystallized liability could be assigned to the Asset
Management Company and Asset Reconstruction Company, which, in turn, steps into the shoe of the
secured creditor namely, the bank or the financial institution. The same is clearly reflected from a bare
reading of Section 5(2) of the SARFAESI Act, 2002 as well as the definition of the asset reconstruction
contained in Section 2(b) and secularization in Section 2(z) and Section 10 of the Act which prescribes the
function of secularization company and the reconstruction company under which it can act as an agent of
any bank or financial institution for the purpose of recovering dues from the borrower on payment of such
fee and charges as may be mutually agreed upon between the parties. (WORDS 503)

Aforesaid analysis of the scheme of the SARFAESI Act, 2002 clearly goes to show that all the
rights which could be exercised by the secured creditor namely, the bank or financial institution can also be
exercised by the secularization or reconstruction company, once it acquires financial asset of any bank or
financial institution, for the purpose of recovering their dues from the borrower. In view of the aforesaid
discussions, the only irresistible conclusion is that the rights of the secured creditor to take assistance
either from the District Magistrate or the Chief Metropolitan Magistrate conferred by Section 14 of the Act
could also be exercised by any secularization or reconstruction company once it acquires the rights or
interest in the financial assets of such bank or financial institution in accordance with the provisions of the
SARFAESI Act, 2002 and there is no requirement for a secularization or reconstruction company to be
notified as a financial institution to exercise the rights.
 EXERCISE NO. 20

Learned counsel for the appellants has submitted that learned single judge did not advert the first
two points raised by the respondents in the writ petitions and he entered into merit of the case by
reappraising the evidence led before the General Court-Martial as if he was sitting as court of appeal
having power to enter into merit of the case and can reappraise the evidence. He has submitted that High
Court while exercising jurisdiction under Article 226 of the Constitution of India has no power to reappraise
the evidence and substitute its own finding saying conclusions of guilt arrived at by the General Court-
Martial being based on weak and insufficient evidence is not liable to stand and respondents are liable to
be acquitted of the charge. He has further submitted that ample evidence has been given before the
General Court-Martial indicating involvement of respondents in the crime and also that it were respondents
who done the death of deceased persons and the findings of conviction arrived at by the General Court-
Martial on the basis of that evidence, which is cogent and reliable, was liable to stand and could not be
quashed in the writ petition filed under Article 226 of the Constitution of India in the name of reappraisal of
evidence.

Learned counsel for the appellants has further submitted that High Court while exercising
jurisdiction under Article 226 of the Constitution of India has power to reverse the finding of conviction
recorded by the General Court-Martial only when it is established that finding of General Court Martial is
based on no evidence or accused were denied opportunity to defend themselves. He has submitted that it
was not the case taken in the writ petitions that respondents were denied opportunity to defend
themselves, rather it is established on record that both respondents had been provided full opportunity to
defend themselves such as they had opportunity to engage lawyer of their choice and they had full
opportunity not only to cross examine the witnesses by the prosecution but had opportunity to tender
evidence in defence also and they had to tender evidence also in their defence, and in view of these, it was
not open for them to challenge the findings of conviction recorded by the General Court-Martial saying
evidence on which finding of conviction is based is weak and insufficient and no conviction can be based on
that evidence. Learned counsel for the appellants has lastly submitted that ample evidence has been led
on record and it is established from that evidence that respondents had a strong motive to commit murder
of Havaldar Ram Phal and Sepoy Jagannath Prasad as latter had tried to molest the wife of Respondent 2
whom Respondent 1 treated as sister. It is also established that Respondent 1 collected a DBBL gun in the
morning of 26.1.1974 and thereafter both respondents, co-accused Ramesh Dubey and deceased persons
were seen together going towards the place of occurrence. (WORDS 491)

Not only this, P.W. 12 Damroo Prasad, who is the native of village Bhattagaon and has a field near
the place of occurrence which he was irrigating on the day of incident, had heard the sound of two shots
besides seeing respondents going towards the place of occurrence before hearing the sound of shots. The
learned counsel has submitted that evidence of P.W. 12 Damroo Prasad cannot be ignored saying it is not
worth reliance as he being a short statured and there being a 5 feet high wall of hedge between the field
he was irrigating and the way both respondents passed and having seen respondents only for fourteen
seconds he could not see the respondents facial features and recognize them. The learned counsel has
submitted that this witness being a native of village Bhattagoan in which Respondent 2 resided at the time
of occurrence, he could easily identify him and also Respondent 1, who being a friend of Respondent no. 2
frequently visited his house, he could also identify respondents.
 EXERCISE NO. 21

As a matter of fact, in our opinion, the Writ Petition No.5174 of 2015 ought to have been straight
away disposed of with a direction to the District Basic Education Officer to look into the proposal of the
Management for appointment of the respondent and pass appropriate orders thereon. The writ petition was
entertained and only notices were issued for exchange of affidavits and it was during the pendency of the
said writ petition that the appellant set up his claim for compassionate appointment. The respondent
authorities in our opinion were, therefore, right to that extent that any claim would be subject to outcome
of the said writ petition but at the same time, it would be necessary to re-emphasize that the Assistant
Director of Education Basic in the letter dated 20.01.2016 and the District Basic Education Officer,
Sultanpur in the letter dated 11.02.2016 had themselves taken a view that it would not be appropriate to
make any appointment till the matter is sub judice, but what appears is that the matter caught speed after
the orders of the Basic Education Minister and then the District Basic Education Officer on 18.04.2016 and
28.04.2016 altered his stand for offering appointment to the appellant. This persuasive method of
crystallizing an order in violation of principles of natural justice cannot be, therefore, appreciated in law.

The District Basic Education Officer, therefore, failed to decide the matter as per Rules and
instead, entered into a correspondence culminating in the decision by the Regional Committee headed by
the Assistant Director of Education Basic that was not competent to decide the consideration of the claim
of the respondent Om Prakash Mishra. To that extent the decision of the Committee headed by the
Regional Assistant Director Education exceeded its authority. It could have only made a recommendation
in relation to the appellant and not otherwise, leaving it open to the District Basic Education Officer to take
a decision finally. The District Basic Education Officer instead of taking decision after hearing the
respondent petitioner, straightaway proceeded to comply with the decision of the Committee headed by
the Assistant Director of Education Basic where the District Basic Education Officer had himself participated
as one of the members. Consequently, the order of the District Basic Education Officer dated 02.06.2016
to that extent cannot be sustained and accordingly, the interim order passed by the learned Single Judge
on 08.06.2016 does not require any interference on that count. Dr. L.P. Misra has, however, vehemently
urged that the appellant does not deserve any compassionate appointment inasmuch as, his father is still
alive and who retired from the post of a Principal of an aided Institution and is receiving a very substantial
amount as pension. He further submits that his family is also receiving family pension on account of death
of the petitioner's mother and there is no element of distress, much less any financial distress so as to
claim compassionate appointment. This is being seriously disputed by Sri Parihar contending that such
parameters are not available under the compassionate appointment Rules in the present controversy.

(WORDS 512)

We are not expressing any opinion on the same leaving it open to the District Basic Education
Officer to record his independent finding on such an issue including the eligibility and qualification of any
candidate who may succeed upon the outcome of a fresh decision in the light of the directions given
hereinafter. However, since all the parties have agreed to the final disposal of the matter, it would be
appropriate to issue an equitable direction so as to protect the interest of both the parties as well as the
Management of the Institution.
 EXERCISE NO. 22

She has then urged that the insistence on behalf of the petitioners about the possession of an
Eco-marked paper which can only be environment friendly is a misconceived argument inasmuch as Eco-
marked paper is a separate category of paper with additional requirements as per the notification dated
9.11.1992 which standard has been framed only for licensed manufacturers. She contends that this has
been done to ensure that a manufacturer who desires to get the paper manufactured by it labelled as eco-
marked, then this option is available to the manufacturer only on fulfillment of the conditions of Eco-mark
that is to be utilized as a label for such paper. This according to her does not mean that only Eco-marked
paper is environment friendly. The mark or logo so applied for by a manufacturer is therefore confined to
such an option that has to be exercised in the process of manufacturing. It is not necessary or a
compulsory requirement of eco-friendly or environment friendly paper. For this, she has relied on the
answer given by the Bureau of Indian Standards dated 1.4.2016, a copy whereof has been filed as
Annexure - SCA7 to the short counter affidavit of the State, to urge that Eco Mark may be a particular type
of standard mark, but the same is optional and if a paper is to be possessed of Eco Mark only then it has to
comply with the requirements of BIS mark with the additional requirements as prescribed under the
notification dated 9.11.1992, and the standards of BIS that have been framed in pursuance thereof. It is
therefore submitted that neither is there any violation of law nor is there any violation of a constitutional
policy, nor do the petitioners have any right to compel the State to change its choice so as to include their
quality of paper as well.

Sri Anil Tiwari learned Senior Counsel for one of the intervenor printers has urged that the State
Government has the right to change its policy and it has, therefore, done away with the policy of utilization
of recycled paper altogether. This part of the policy is not even under challenge. He submits that the
petitioners contention that eco-marked paper can only be utilized for such printing of text books is based
on the presumption that only eco-marked papers are environment-friendly and eco-friendly. He submits
that this contention is absolutely misconceived and without any basis. He submits that paper i.e. recycled
paper as indicated in the notification dated 9.11.1992 under clause 2 (ii) thereof has already been done
away with and which is no longer in dispute but at the same time since there is a catch, which can also be
a mischief, in the quality prescribed for paper under clause 2 (i) to the extent of utilization of virgin pulp,
the State Government has rightly specified Virgin Pulp Wood and Bamboo based as the basic quality of the
paper which will eliminate the possibility of any other virgin pulp including that of recycled paper. (502)

He submits that the manner in which the quality of paper under clause 2 (i) to be used has been
indicated namely that paper manufactured out of pulp containing not less than 60% by weight of pulp
made from material other than bamboo, hardwood, softwood and reed may also allow the utilisation of
pulp of recycled paper to the extent of 99%. Thus, what has been done away with by excluding paper
under clause 2 (ii) can be in a around about way be introduced by the utilization of paper mentioned under
clause 2 (i) for which the petitioners appear to be insisting. It is for this reason that the government has
introduced a specific nature of raw material, namely Virgin Pulp Wood and Bamboo based only to exclude
the possibility of utilization of any contaminated paper. He submits that the argument of the petitioners
that only eco-marked paper would be environment-friendly is misconceived inasmuch as it is not the case
of the petitioners that the paper which is made of Virgin Pulp Wood and bamboo based is not environment-
friendly. He has also adopted the arguments on behalf of the other respondents to advance his
submissions and has cited authorities to substantiate his contentions.
 EXERCISE NO. 23

The only conclusion recorded by the Enquiry Officer is that since the petitioner did not cooperate
with the disciplinary proceedings and that from his conduct, it is clear that he does not want the
proceedings to be concluded, he had no option but to record a finding that the charges stand proved. It is
trite law that even if disciplinary proceedings are continued and culminate ultimately ex parte, the Enquiry
Officer is under a positive obligation to record his satisfaction with respect to the charges levelled against
the delinquent employee with reference to the evidence based upon which the employer seeks to take
action against the employee. Even this rudimentary and settled principle was not borne in mind by the
Enquiry Officer. The mistake committed by the Enquiry Officer, as noted above, was reiterated by the
Disciplinary Authority inasmuch as neither in the order dated 24 April 1998 nor in the order dated 13
August 1999, has the Disciplinary Authority recorded any independent satisfaction with respect to the guilt
of the petitioner based upon the evidence or material on record. This, of course, subject to the caveat that
the failure of the Enquiry Officer to record his conclusions on each charge is not a flaw which could perhaps
have been cured by the Disciplinary Authority for the first time.

That leaves this Court to deal with the last submission of Sri Mishra that the judgment and order
of this Court dated 2 November 1995 conferred authority upon the Corporation to continue and conclude
the enquiry despite the superannuation of the petitioner. It becomes pertinent to point out here that the
judgment and order of the Court dated 2 November 1995 required the Corporation to conclude the
proceedings within a period of eight weeks therefrom. Admittedly, this period of eight weeks had expired
long before the passing of the orders impugned. This Court has not been referred to any material or
circumstance which may have constrained or injuncted the Corporation from proceeding ex parte and
concluding the enquiry in case it was its contention that the petitioner was deliberately not permitting the
conclusion of the enquiry and adopting a procedure of non cooperation. From the facts notices herein
above it appears that the Corporation fell into deep slumber post 30 April 1996 till it issued a notice on 3
February 1998. Even otherwise this Court finds itself unable to view or read the order dated 2 November
1995 as conferring or clothing the Corporation with jurisdiction to continue with a departmental enquiry
against a delinquent employee post his retirement in the absence of any statutory provision, rules or
regulation conferring such authority upon the Corporation. The last significant issue which must be noted is
this. Admittedly, the show cause notice was dated 22 April 1998. This notice required the petitioner to
submit a reply within 15 days. Even before the said period could expire, the impugned order came to be
passed on 24 April 1998. (WORDS 494)

If it were its contention that the petitioner was not cooperating, it could have proceeded and
concluded the enquiry ex parte. The report of the Enquiry Officer suffers from fundamental flaws noted
above. These fundamental flaws were not [and even otherwise could not have been] cured by the
Disciplinary Authority. This clearly establishes a failure on the part of the Corporation to follow due process
and to act in a fair and reasonable manner. The entire proceedings culminating in the passing of the
impugned orders apart from being in violation of the rudimentary and fundamental principles of fair play,
are even otherwise rendered without authority of law in light of the proceedings having been continued
and penalties inflicted after the retirement of the petitioner on 31 January 1998. Accordingly and for the
reasons noted above, this writ petition stands allowed. The impugned orders dated 24 April 1998 and 13
August 1999 are hereby quashed. The petitioner shall as a result thereof be entitled to all consequential
benefits and reliefs.
 EXERCISE NO. 24

The order impugned in this petition having been been withdrawn, normally the matter would have
come to an end with the writ petition having become infructuous but since the petitioner is claiming
preferential allotment in his favour under the dying-in-harness quota, it becomes necessary for us to
examine the procedure which is to be adopted for consideration of preferential allotment of fair price shop
license on compassionate ground. Learned counsel for the petitioner contends that since the petitioner is
entitled for preferential allotment on compassionate ground as provided by Clause 10 (Jha) of the
Government Order dated 17.08.2002, the authority granting license has only to consider the general
reputation of the erstwhile fair price shop licensee, his father, and in case nothing adverse is found, he is
entitled for the grant of fair price shop license. It is further submitted that it is not necessary to call for an
open general meeting of the Gaon Sabha to consider the application for grant of license on compassionate
basis.

We are unable to agree with the contention advanced by the learned counsel for the petitioner.
Clause 4.4 of the Government Order dated 03.07.1990 which prescribes the procedure for opening of the
fair price shop clearly provides that any fair price shop can be opened only after the resolution is passed in
the open general meeting of the Gaon Sabha. Thus, as per procedure prescribed by the said Government
Order, it is only on the basis of collective opinion of the members of the Gaon Sabha expressed in an open
general meeting, allotment of fair price shop license can be made. After the resolution is passed in the
open general meeting, the same has to be processed through the Tehsil Level Committee for rural areas
consisting of the Sub Divisional Magistrate as Chairman, concerned Block Development Officer and an
officer belonging to Scheduled Caste/Scheduled Tribes or other backward class nominated by the District
Magistrate and Regional Food and Supply Officer as member as prescribed in clause 5 of the Government
Order dated 17.08.2002. The entire exercise by the committee has to be undertaken only after the
resolution has been passed in an open meeting as prescribed in clause 7 of the said Government Order.
Further, the allotment has to be made as per terms and conditions contained in clause 10 of the said
Government Order which also envisages the grant of license on compassionate basis. In our considered
opinion, there cannot be any exception to the above mentioned procedure prescribed for consideration of
grant of license even on compassionate basis which is founded on the strength of the reputation of the
deceased license holder. To our mind, this assessment as to the reputation of the deceased license holder
and the goodwill has to be gathered only from a resolution passed in this regard in open general meeting
of the Gaon Sabha. It has to be collective opinion of the Gaon Sabha and not of any individual authority or
Tehsil Level Committee. (WORDS 498)

In view of the above facts and circumstances, we are of the considered opinion that even in the
matter of grant of license on compassionate basis in case of individual under Clause 10 (Jha) of the
Government Order dated 17.08.2002, it is necessary to hold an open general meeting of the Gaon Sabha
and it is only after the resolution is passed in the said meeting approving of the reputation and goodwill of
the deceased license holder, the case of the dependent claiming appointment on compassionate ground
can be considered by the Tehsil Level Committee and accordingly the decision is to be taken. In such view
of the matter, the writ petition is disposed of finally by directing the Sub Divisional Magistrate to hold an
open general meeting of the Gaon Sabha to consider the agenda whether the reputation and goodwill of
the erstwhile licensee, father of the petitioner, was good or not. Such meeting may be convened within
four weeks from the date of presentation of a certified copy of this order.
 EXERCISE NO. 25

Shri Rahul Sripat further submitted that when a delegate is empowered by Parliament to enact a
policy and to issue directions which have a statutory force and when the delegatee issues such guidelines
having statutory force, such guidelines have to be read as supplement to the provisions of 1949 Act.
Section 21 of 1949 Act empowers Reserved Bank of India in the interest of the banking policy to lay down
guidelines in relation to advances to be followed by the banking companies. Thus the guidelines are issued
by the RBI for classification of NPA from time to time as a restructuring measure in order to avoid set
backs in the banking system. The NPAs do not generate interest and are account receivables. The object of
issuance of NPA guidelines by the RBI is to minimize the problem of credit risk. The corporate debt
restructuring is one of the method for reducing NPAs and such restructuring as a matter of banking policy
cannot be treated as trading. One has to keep in mind the object behind enactment of the 1949 Act. The
said guidelines are a part of credit appraisal mechanism. Dealing in NPAs as part of the credit appraisal
mechanism and as a part of restructuring mechanism falls within Section 21 read with Section 35A of the
1949 Act. The obligations under a contract cannot be assigned except with the consent of the promises
and when such consent is given, it is really a novation resulting in substitution of liabilities. Under the
alleged Deed of Assignment dated 29.3.2006 not only the account receivable in the books of SBI has been
transferred to fourth respondent, but also the obligations of the third respondent towards its
borrowers/fifth respondent including the eight respondent under the loan agreement secured by deed of
hypothecation/mortgage have not been assigned by the third respondent to the assignee and hence, the
alleged Deed of Assignment dated 29.3.2006 is unsustainable in law.

It has been submitted that no proper stamp duty as payable in the State of UP has been paid over
the alleged Assignment Deed when the same is used to enforce rights over the immovable properties
situated in the State of UP and before the said alleged Deed of Assignment is to be considered and taken
as a valid document, the same is required to be impounded and the deficit stamp duty is to be recovered
from the party concerned in terms of the provisions contained in the Indian Stamp Act and other laws in
force for the time being. The substitution application filed on behalf of fourth respondent was not
maintainable and the third respondent could not be substituted. It had no authority to assign its liabilities
towards its customers i.e. fifth respondent. The Tribunal by an ex-parte order had allowed the substitution
application without even issuing any notice on the substitution application to all the concerned parties to
the litigation before the first respondent including the eight respondent. (WORDS 493)

Moreover, the assignment of debt is not the mode of banking business and the private
respondents cannot be termed as borrower for recovery under the Act No.51 of 1993 Act before the first
respondent, hence the whole proceeding gets vitiated from that stage itself. The Deed of Assignment dated
14.8.2008 is invalid and illegal and the same was executed without paying proper stamp duty as applicable
in the State of U.P. The petitioner is neither a bank nor a banking company nor a financial institution nor a
securitization and reconstruction company under the provisions of SARFAESI Act. The petitioner being a
company is not falling in any of the categories mentioned above and it cannot be an applicant for recovery
of the amount in question before the Tribunal under the provisions of Act No.51 of 1993. However, the
substitution application filed on behalf of the petitioner was not maintainable. No notice was ever issued or
served upon the eight respondent and the petitioner cannot step into the shoes of the third respondent.
There is no lis between the petitioner and the eight respondent as there is no oral or written agreement
between them nor the eight respondent had ever rectified the alleged Assignment Deed.
 EXERCISE NO. 26

Being aggrieved the private respondents filed a revision before the Deputy Director of
Consolidation under Section 48 of the Act, 1953 who vide his judgment dated 25.06.2002 upheld the order
of the Settlement Officer of Consolidation on the ground that a preliminary decree is a final determination
of the rights of the parties in respect of the property sought to be partitioned. It is also appealable but no
such appeal was filed by the petitioner herein i.e. respondents before the revisional court. On the
allegation of fraud the court perused the records and found that there was no pleading containing requisite
denial of thumb impression nor the presence of the concerned in the Court etc. nor evidence to prove any
such fraud. The revisional court relied upon the decision of the Supreme Court reported in AIR 1995 SC
2493, Mool Chand and others vs. Deputy Director, Consolidation & others to hold that a preliminary decree
passed in a suit for partition under Section 176 binds the parties even if those proceedings do not result in
a final decree, if the said preliminary decree is not challenged in appeal, therefore, the preliminary decree
dated 01.03.1986 passed on the basis of compromise which had been duly proved was binding upon the
petitioners and also operated as estoppel and principle of acquiescence also applied.

The contention of learned counsel for petitioner is that no such compromise was entered into with
the private respondents and he had no knowledge whatsoever about the said preliminary decree. Once the
suit abated, the preliminary decree could not have been appealed as any proceedings could only take place
before the Consolidation authorities. Plea of fraud was taken before the consolidation authorities which was
found to be correct by the Settlement Officer consolidation and rightly so. There was no reason for the
petitioner to enter into a compromise relinquishing 1/3 share and accepting 1/6 share of the holding but
the revisional court without appreciating these aspects of the matter has erred on facts and law in
upturning the judgment of the Settlement Officer of Consolidation causing prejudice to the petitioner.

Sri V.K. Singh learned counsel appearing for private respondents has relied upon the decision of
the Supreme Court in the case of Mool Chand (supra) to contend that preliminary decree prepared in
regular suit under Section 176 for partition/division of share, which had not been appealed, was binding
upon the parties and had to be given effect in consolidation proceedings between the parties, therefore,
the revisional Court had adopted a correct approach in deciding the matter. He contended that there was
no pleading whatsoever of fraud nor was it ever proved. On the question of variance of shares contrary to
what the petitioner was legally entitled, the pedigree being admitted to the parties, he placed reliance
upon the judgment of this court report in Smt. Manraji vs. Deputy Director of Consolidation & others, 2010
(1) ADJ 249. (WORDS 490)

On a bare perusal of the order of Revisional court it is found that it has considered relevant
aspects of the matter and issues involved, threadbare. On the question of compromise dated 01.03.1986
and its veracity it has held in detail that in the objections filed before the Consolidation Officer the
petitioner herein never denied the thumb impressions on the compromise filed nor their presence on the
relevant date. On a perusal of the record it found the thumb impression of the petitioner on the
compromise as also that of other parties, as also the fact that based on such compromise the Sub
Divisional Magistrate Sandila had passed a decree. It also found that thumb impression of the petitioner
had been verified by his Advocate just as those of others parties had been verified by their counsel and at
the back of the compromise the Court of Sub Divisional Magistrate concerned had made his endorsement
and signature, therefore, it found the contention of the petitioner herein that no such compromise was
presented before the Presiding Officer, to be factually incorrect.
 EXERCISE NO. 27

Having considered the aforesaid submissions raised, what we find is that so far as the issue
relating to the Armed Forces Tribunal is concerned, the same was answered vis-a-vis the exercise of
authority by the High Court under Article 226 of the Constitution of India, whereas in the present case the
exercise of authority by a learned Single Judge in a company petition is in the discharge of statutory
powers conferred under the provisions of the Companies Act, 1956. Thus, this is not a case arising out of a
writ petition under Article 226 of the Constitution of India. Nonetheless, the issue is that the power which
is being exercised by the learned Company Judge is as a judge of the High Court and not of any inferior
Tribunal. Consequently, to that extent, we are of the opinion that once the power is being exercised by a
learned Single Judge of the High Court in exercise of the authority conferred under the Companies Act,
1956 in a Company Petition of 2013, an order passed therein cannot be subjected to appeal before a
Tribunal created under the 2013 Act. Even otherwise, the High Court has a supervisory jurisdiction under
Article 227 of the Constitution of India.

Applying the principles thereof the question of conferring the authority of appeal on a subordinate
Tribunal would be contrary to this constitutional scheme. The enforcement of Section 303 w.e.f.
15.12.2016 would not repeal the right or abrogate the right of a person to file an appeal against the order
of a learned Single Judge in a company petition for which this Court continues to have jurisdiction to
decide the matter as indicated above and in the present context keeping in view the impact of the legal
provisions pointed out here-in-above. The company appellate Tribunal has not been conferred with any
such authority specifically as an alternative, granting a right of appeal as against an order of a learned
Single Judge passed in a Company Petition as is presently involved. In the absence of any such specific
conferment of power on the Company Appellate Tribunal, the argument of Sri Seth that the powers
statutorily granted under Section 483 of the Companies Act would stand impliedly revealed, cannot be
repealed. The doctrine of implied repeal, therefore will have no application in view of the aforesaid
background of the legislation as no such express intention can be gathered from the same. There is yet
another reason for holding that the right of appeal is available to the appellant and that is based on the
principles that have been deduced as discussed in the latest case of M/s. Videocon International Limited v.
SEBI [(2015) 4 SCC 33 where a right of appeal has been understood to be a substantive right and not a
mere procedural right so as to affect it's applicability upon any amendment more so when the lis in the
present case had been instituted earlier. (WORDS 490)

The right of appeal under Section 483 of the Companies Act was therefore available on the date of
the institution of the Company Petition itself giving rise to this appeal. The forum of appeal as provided
under Section 483 of the Companies Act would not stand altered as no such provision in such a situation is
contemplated so as to transfer the right of appeal before the Company Appellate Tribunal. Moreover in the
absence of any such provision denuding this Court of it's power to hear an appeal against an order passed
by the learned Company Judge in the aforesaid background, we are of the opinion that the appeal is
maintainable and we accordingly hold so. Having said so, coming to the merits of the case, what we find is
that the attempt made on all previous occasions for seeking an injunction against the appellant has already
witnessed three stages of the proceedings.
 EXERCISE NO. 28

Consequently, in the present case, once the facts of the case are looked into, the inevitable
conclusion is that petitioner's were conscious of this fact that they are entitled to fill 50% of the sanctioned
seats on their own by holding an examination at state level by the group of minority institutions spread
over the entire State and 50% seats were liable to be filled under Common Entrance Test that has been so
prescribed but at no point of time there has been any leverage or liberty accorded to the petitioner's
institution for filling up the unfilled seats required to be filled through Common Entrance Test (C.E.T.). The
petitioners in the present case admittedly have transgressed and overstepped limit of quota that was
prescribed to be filled up by them.

Once petitioners are responsible for creating such a situation, then they have to blame themselves
instead of seeking misplaced sympathy before this Court that said students should be accommodated. The
Full Bench of this Court has already disapproved such actions wherein the Managing Committee in
transgression and overstepping of its jurisdiction admitted the students and the reason that has prevailed
is that it should act as a deterrent to other students not to come forward for taking admission and then
talk of equity. The petitioners are duty bound to be on the side of the law instead of proceeding to violate
the same and then trying to get it condoned on the basis of misplaced sympathy, in view of this as far as
we are concerned, we are not at all condoning the act of the management in proceeding to admit 29
students without any authority of law.

It may be true that said 29 students are from the same list from which 50 students have been
accorded admission. Once the quota in question has been fixed, then the said quota in question could not
have been exceeded and overreached and in view of this, the inclusion of 29 students is totally
unwarranted and the University has acted well within its right in not entertaining such students whose
entry in the stream is itself was not backed by statutory provision rather it was backed by violation of law.
We may not approve of various observations that have been made by learned Single Judge in the decision
making process but certainly the conclusions that has been arrived at by learned Single Judge are being
subscribed by us for the simple reason that once the quota stood exhausted, then the college in question
has no authority to admit students even if seat in question was lying waste or going waste. Consequently,
in the present case, once the students have been wrongly admitted and have been deprived by the
University from taking the B.Ed examination, then as already mentioned above, we cannot subscribe the
illegal act of the Managing Committee and the Learned Single Judge is absolutely right in his wisdom in
awarding compensation to the said students as admittedly their valuable one academic year has been
wasted. (WORDS 505)

Consequently, no interference is being made but before parting we make it clear that it appears
that pronouncement of the Apex Court is not at all being complied with in its word and spirit and even
minority institutions in case they are given liberty to fill up 50% of the seats, the same should not be a
localised exercise rather all the minority institutions will have to come forward under one umbrella for
holding of one common entrance test at State level apart from the common entrance test being held by
the State Government and it would be much more appropriate if they join the main stream as has been
directed by the Apex Court in the case of 'NEET Examinations': Modern Dental College and Research
Center vs. State of M.P. 2016 (7) SCC 353. Consequently, challenge made sans merit, in view of this,
present Special Appeal and the connected Special Appeal are dismissed. No order as to cost.
 EXERCISE NO. 29

On the other hand, Sri Tarun Varma, the learned counsel for the Oriental Bank of Commerce
submitted that the petitioners have an efficacious remedy of filing an application under Section 17(1) of
the Act before the Debts Recovery Tribunal. In support of his submission, the learned counsel has placed
reliance upon a decision of the Supreme Court in United Bank of India Vs. Satyawati Tandon and others,
(2010) 8 SCC 110. It was urged that after the declaration of the account of the borrower as NPA the bank
has already filed a suit before the Tribunal for recovery of its amount and that the Tribunal has also issued
an interim order restraining the borrower from alienating the properties including the properties, which is
sought to be released through the present writ petition. The learned counsel contended that the
appropriate remedy for the petitioner is to move an appropriate application before the Debts Recovery
Tribunal, which would be considered and appropriate orders would be passed by the Tribunal. The learned
counsel contended that consequently, it was not a fit case for the writ Court to entertain such petitions.
The learned counsel submitted that the concurrence given by the Oriental Bank of Commerce for release of
the property of petitioner no.1 was subject to fulfilment of certain terms and conditions at the time when
the account of the borrower was standard and regular but during the consideration of the matter, the
borrower did not maintain financial discipline and the account of the borrower became NPA.

As such in the changed circumstances, the bank was not bound to honour the concurrence since
the conditions were not fulfilled by the petitioners. The learned counsel submitted that the borrower has
failed to maintain the financial discipline and have made no effort to regularize the account and,
consequently, the request for substitution of the mortgaged properties could not be acceded to. The
learned counsel further submitted that the account of the borrower was declared NPA as per the Reserve
Bank of India guidelines and since the borrower did not make any effort to regularize its accounts,
proceedings under the Act was initiated. The learned counsel contended that a valid notice under Section
13(2) of the Act has been issued and the objection of the borrowers and other guarantors were considered
and rejected under Section 13(3A) of the Act and only thereafter, a notice under Section 13(4) of the Act
was issued and now an application for recovery of the amount has been filed under Section 19 of the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The learned counsel submitted that
the plea of the petitioners that the respondents-bank had wrongly declared the account of the borrower as
NPA is misconceived, inasmuch as such plea could not be raised for the first time in a writ jurisdiction as
the said plea was never raised before the bank nor was raised in their objection filed under Section 13(3A)
of the Act. (WORDS 497)

Having heard the learned counsel for the parties, the moot question that arises for consideration
for which the Court has entertained the petition on a limited jurisdiction is, whether the action of the bank
is fair and proper? It cannot be denied that the banks owe a duty to act fairly and in good faith. There has
to be a fair dealing between the parties complying with their part of the obligations under the contract. The
Securitization Act cannot be read to be a one sided affair shutting out all possible and reasonable remedies
to the other party, namely, the borrowers and assume all drastic powers for speedier recovery of the loan
amount. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The
petitioners' cannot be left remediless in case they have been wronged or subjected to unfair treatment
violating the terms and conditions of the contract. It is only on this limited purpose that the Court has
entertained the writ petition to judge the fairness of the action taken by the respondent-bank.
 EXERCISE NO. 30

So far as the argument raised by the learned counsel for the accused with regard to the witnesses
being closely related and no independent witness has come to support the prosecution case, we would like
to mention that it is the settled legal proposition that evidence of undisputedly interested witnesses or
related witnesses cannot be discarded outright on that very sole ground. It is also established law that
conviction can be based upon the evidence of witnesses related to the deceased without corroboration, if
their testimonies are found to be trustworthy then there does not seem to be any valid or cogent reason
for not acting upon their evidence. Because of their relationship, they cannot be considered to be inclined
to spare the real culprits or falsely involve the accused persons. Applying the above legal proposition, we
find in the present case that at the time of incident of murder no such person except these three
prosecution witnesses P.W.1 to P.W.3 had reached the place of occurrence. The incident happened in the
early hours of the morning. There seems to be no marked movement. Therefore, the question of
withholding independent witnesses from the side of the prosecution does not arise. Perusal of the lower
court records reveals that there is no doubt about the relationship between the prosecution witnesses. As
per their statements all the three witnesses were closely related. P.W.1 and P.W.2 were nephews of P.W.3
and the victim, but as per the requirement of the law, their testimony had required to be carefully
scrutinized in order to see whether they are truthful, reliable and trustworthy witnesses as their presence
at the site is very natural. The submission of the learned counsel for the accused with regard to the
presence of the witnesses, we have carefully examined the statement given before the trial court. P.W.1
Jamuna stated in his statement that at the time of the incident he was present near the well and another
witness Baldeo was also standing nearby from that place. Consequently, the ocular version of these
witnesses inspires confidence. So the point raised by the learned counsel for the accused about their
presence and non-production of the independent witnesses and production of only the related and
interested witnesses does not create any shadow of doubt over the incident. Therefore, we hold that the
argument raised by the accused counsel on this score has no substance.

The next point of contradiction raised by the learned counsel for the defence is with regard to the
number of injuries. He contended that perusal of the written report, statements under Section 161 Cr.P.C.
and the inquest report number of injuries are shown to be five. Even in evidence five injuries were
suggested to the victim. The post mortem report, however, mentions three injuries as ante mortem
injuries. Under these circumstances, the testimony of the prosecution witnesses P.W.1 to P.W.3 have been
challenged and asserted that they have not seen the incident. Medical and oral version are inconsistent
and witnesses are not believable. (WORDS 503)

In rebuttal, learned A.G.A. has contended that these witnesses perhaps reached at the time when
Lachhman accused was assaulting with lathi. There might have been earlier blows. The injuries mentioned
in the written report and the inquest report are practically similar. It is further submitted that the victim
was wearing clothes which was found to be blood stained. It appears that swelling on the right knee and
the swelling on the left temple region was not marked by the Medical Officer who had examined the dead
body after 1 ½ days of the death. It was just possible that those swellings might have subsided or may not
have been marked which could invite the attention on this point.
 EXERCISE NO. 31

On the touchstone of the above said legal preposition we have given our conscious thought on the
material available on record. The genesis of the incident alleged in the FIR is altercation between the two
child and thereafter reporting it to their families and it has been proved that before a day of the incident
there happend to be small marpeet of the children of two families and with the result after reporting the
matter to their mothers they have also exchanged hot words. It is also established that the accused
Lachhman was not present at that time and he returned from the place of his employment in the evening
of that day. It is a natural fact that on coming back to home the wife of Lachhman would have narrated
the incident to her husband. Since the husband was not a witness of the incident, the genesis of the
occurrence therefore could not be presumed to know the nature of the previous incident. He might have
taken a serious view and acted accordingly. Now it can be safely concluded that it was not necessary for
the prosecution to make out the motive rather it is very difficult to meet out as to what was the mental
state of the accused. Under the facts and circumstances as stated above the alleged motive could not be
said to be unnatural or concocted rather it can be concluded that the previous incident appears to be the
genesis of this incident by accused Lachhman. On the basis of the above legal proposition, on motive the
prosecution case is based on direct ocular testimony and the ocular testimony is found to be
unimpeachable and trustworthy. Due to aforesaid reasons the argument of the defence on motive or weak
motive has no relevance.

The last point raised by the accused appellant that the accused has been falsely implicated in this
case due to the alleged rivalry at the instance of Pradhan of the Village Rajendra Singh. On this point we
would like to mention that it is an admitted fact that the village Pradhan Rajendra Singh had won the
election against one Gore Lal who is said to be the near relative of the accused. It is also an admitted fact
that the election was over one year earlier to the incident. It is relevant and important that Rajendra Singh
has been produced as a prosecution witness no.4. In his entire evidence nothing has been shown to make
out a case of false implication of the accused. As already stated the election was over one year before the
said incident, more so Rajendra Singh, Pradhan, was a winning candidate. Mere relationship of the accused
with Gore Lal, who was defeated in the election, cannot in ordinary course said to be the reason of false
implication. Since the election had taken place one year back and nothing had happened in the intervening
period which may suggest that Rajendra Singh was annoyed and had taken step to harm their adversaries
or to help their supporter. (WORDS 508)

Learned counsel for the appellant has further raised the point that the recovered lathi from the
accused Lachhman does not have a mark of human blood. This argument, in our mind, has no substance
because it transpires from the entire prosecution story as well as evidence tendered in respect thereof that
after the incident at about 6 A.M. when the complainant tried to lodge an FIR they were obstructed and the
complainant along with the victim returned back to their house and thereafter when the condition of the
victim was seriously deteriorated they again tried to lodge the FIR. At this juncture, accused Lachhman
along with six others blocked the way and at that time as per prosecution story Bharose, Hardas were said
to have snatched the lathis and ballam from those accused. There appears to be a gap between the
incident and the recovery of the weapons. It is not the case of the prosecution that on the pointing out of
the accused Lachhman the weapon lathi which was used in the assault had been recovered, rather there is
a time gap between the incident and the recovery of lathi from accused Lachhman and that too for the
second incident that is blocking of the road for going to lodge an FIR to the police station.
 EXERCISE NO. 32

After hearing the submissions of the learned counsel for the parties at some length, we find that
the relevant Statues are 17.10 and 17.13 of the Statues of the Purvanchal University, which is pari materia
to the Statutes 15.10 and 15.13 of the Mahatma Gandhi Kashi Vidyapeeth, Varanasi. Statute 17.10 of
Purvanchal University and Statute 15.10 of Mahatma Gandhi Kashi Vidyapeeth indicate that seniority list
has to be made on the basis of substantive appointment. Statute 17.13 of Purvanchal University and
Statute 15.13 of Mahatma Gandhi Kashi Vidyapeeth indicate that if substantive appointments are made on
the same date in which case the seniority would be considered on the basis of seniority in age. In view of
the said provisions, we find that in the instant case, the substantive appointment of the petitioner and the
respondent no. 6 was made on 22.11.1991. Since both were appointed on the substantive post on the
same date, the seniority list is required to be considered in the light of the provisions of the Statute 17.13
of Purvanchal University read with Statute 15.13 of Mahatma Gandhi Kashi Vidyapeeth. The petitioner was
born in the year 1956 in comparison to the respondent no. 6 who was born in the year 1963.

We find that the Chancellor nonsuited the petitioner on the ground that no objection was raised by
him or by Vinod Kumar Rai for 17 long years. The Committee of Management contends that the seniority
list was prepared by the Principal of the Institution in the year 1993 which was sent to the University and
no objection to it was filed by any of the teachers including that of the petitioner and, therefore, at this
belated stage, no changes in the seniority list could be made. The Chancellor as well as counsel for the
respondents have placed reliance upon a decision of the Full Bench of this Court in Dr. Asha Saxena Vs.
Smt. S.K. Chaudhary and others, (1991) 2 UPLBEC 1202 on the proposition that the seniority list could not
be challenged after a lapse of 17 years. We find that there is no controversy of the proposition advanced in
the aforesaid two cases. We are of the opinion that these decisions are not applicable in the instant case.
We repeatedly asked the learned counsel for the respondents-Committee of Management as well as
counsel for the respondent no. 6 to indicate and produce any document by which the Court could find that
the seniority list prepared in the year 1993 by the Principal of the Institution was circulated to the teachers
and whether any objection was invited by the Institution. We are constrained to observe that the
Committee of Management and the Institution in question have not filed any counter affidavit and the
counter affidavit of the respondent no. 6 is silent on this issue. We can consequently assume that the
seniority list prepared by the educational institution in the year 1993 was never circulated nor objections
were invited from the teachers and consequently the petitioner could not be non-suited on the ground of
delay. (WORDS 512)

On the other hand, we find that the Director of Higher Education issued a letter dated 1.9.2006
modifying the seniority list in which it was indicated that the respondent no. 6 is the senior most on the
basis of initial appointment made on 7.3.1989 and indicating the petitioner's appointment as 13.3.1989.
We find that the seniority list on the basis of the initial appointment on adhoc basis cannot be made in
view of the specific statutory provisions namely Statute 17.10 of the Purvanchal University and Statute
15.10 of the Kashi Vidyapeeth. In the light of the aforesaid, we are of the opinion that the order of the
Chancellor dated 15.10.2010 cannot be sustained and is quashed. In our opinion, the order of the Vice-
Chancellor is perfectly correct and in accordance with the provisions of Statute. We accordingly hold that
the petitioner is senior to the respondent no.6. The writ petition stands allowed.
 EXERCISE NO. 33

The similar view has been taken by the another Division Bench in Rajendra Singh Vs. State of U.P.
and others. In the said case also the disciplinary proceeding was dispensed with without any plausible
reason. The only reason mentioned in the order was that the departmental inquiry shall consume sufficient
time and on the said ground the Rule 8(2)(b) was invoked. This Court set aside the order of the
disciplinary authority and held as under:-

"Here in the present case, the disciplinary authority had recorded its satisfaction but it is well
settled that that satisfaction has to be based on germane grounds and not ipse dixit of the disciplinary
authority. Here the only ground to dispense with the inquiry is that if the writ petitioner-appellant is
allowed to continue in service, a departmental inquiry shall consume sufficient time and, therefore, such
continuance will have bearing on the moral of the other police personnel. We are of the opinion that the
ground recorded by the disciplinary authority while dispensing with the inquiry is not germane nor is it on
any material that may be relevant, as such, the ground set forth cannot justify dispensing the inquiry at
all. The provisions contained under Rule 8 (2)(b) have been incorporated keeping in view the provisions of
Article 311 (2)(b) of the Constitution of India. The power conferred on the authority to dispense with an
inquiry in a given situation where it is reasonably not practicable to hold an inquiry, has been envisaged
therein.”

The Apex Court in the case of Union of India and another v. Tulsi Ram Patel, (1985) 3 SCC 398,
had the occasion to consider the scope of the aforesaid provision and the Apex Court laid down the test of
reasonableness in the said case to be reflected by the authority while proposing to dispense with an
inquiry. Paragraph 130 of the said decision is reproduced below:

“Thus, whether it was practicable to hold the inquiry or not must be judged in the context of
whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is
required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion
of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate
the cases in which it would not be reasonably practicable to hold the inquiry, but some instances byway of
illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the
government servant, particularly through or together with his associates, so terrorizes, threatens or
intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them
from doing so or where the government servant by himself or together with or through other threatens,
intimidates and terrorizes the officer who is the disciplinary authority or member of his family so that he is
afraid to hold the inquiry or direct it to be held. (WORDS 505)

It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or
of general indiscipline and insubordination prevails, and it is immaterial whether the concerned
government servant is or is not a party to bringing about such an atmosphere. In this connection, we must
bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of
holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is
generally on the spot and knows what is happening. It is because the disciplinary authority is the best
judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question
final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or
out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's
case against the government servant is weak and must fail.
 EXERCISE NO. 34

Learned counsel for the appellants has submitted that learned single judge did not advert the first
two points raised by the respondents in the writ petitions and he entered into merit of the case by
reappraising the evidence led before the General Court-Martial as if he was sitting as court of appeal
having power to enter into merit of the case and can reappraise the evidence. He has submitted that High
Court while exercising jurisdiction under Article 226 of the Constitution of India has no power to reappraise
the evidence and substitute its own finding saying conclusions of guilt arrived at by the General Court-
Martial being based on weak and insufficient evidence is not liable to stand and respondents are liable to
be acquitted of the charge. He has further submitted that ample evidence has been given before the
General Court-Martial indicating involvement of respondents in the crime and also that it were respondents
who done the death of deceased persons and the findings of conviction arrived at by the General Court-
Martial on the basis of that evidence, which is cogent and reliable, was liable to stand and could not be
quashed in the writ petition filed under Article 226 of the Constitution of India in the name of reappraisal of
evidence.

Learned counsel for the appellants has further submitted that High Court while exercising
jurisdiction under Article 226 of the Constitution of India has power to reverse the finding of conviction
recorded by the General Court-Martial only when it is established that finding of General Court Martial is
based on no evidence or accused were denied opportunity to defend themselves. He has submitted that it
was not the case taken in the writ petitions that respondents were denied opportunity to defend
themselves, rather it is established on record that both respondents had been provided full opportunity to
defend themselves such as they had opportunity to engage lawyer of their choice and they had full
opportunity not only to cross examine the witnesses by the prosecution but had opportunity to tender
evidence in defence also and they had to tender evidence also in their defence, and in view of these, it was
not open for them to challenge the findings of conviction recorded by the General Court-Martial saying
evidence on which finding of conviction is based is weak and insufficient and no conviction can be based on
that evidence. Learned counsel for the appellants has submitted that ample evidence has been led on
record and it is established from that evidence that respondents had a strong motive to commit murder of
Havaldar Ram Phal and Sepoy Jagannath Prasad as latter had tried to molest the wife of Respondent 2
whom Respondent 1 treated as sister. It is also established that Respondent 1 collected a DBBL gun in the
morning of 26.1.1974 and thereafter both respondents, co-accused Ishanand Dubey and deceased persons
were seen together going towards the place of occurrence. (WORDS 490)

Not only this, P.W. 12 Damroo Prasad, who is the native of village Bhattagaon and has a field near
the place of occurrence which he was irrigating on the day of incident, had heard the sound of two shots
besides seeing respondents going towards the place of occurrence before hearing the sound of shots. The
learned counsel has submitted that evidence of P.W. 12 Damroo Prasad cannot be ignored saying it is not
worth reliance as he being a short statured and there being a 5 feet high wall of hedge between the field
he was irrigating and the way both respondents passed and having seen respondents only for fourteen
seconds he could not see the respondents facial features and recognize them. The learned counsel has
submitted that this witness being a native of village Bhattagoan in which Respondent 2 resided at the time
of occurrence, he could easily identify him and also Respondent 1, who being a friend of Respondent no. 2
frequently visited his house, he could also identify respondents. Learned counsel has submitted that
respondents were not a stranger to P.W. 12 Damroo Prasad.
 EXERCISE NO. 35

It is borne out from the record that initially the third respondent granted permission to the
institution to fill up the vacant posts of Head Master, Assistant Teacher and clerk by letter dated 30 July
2016. Thereafter, certain complaint was made to the District Basic Education Officer that the President of
the Committee of Management had not signed the proposal on basis of which the Management had sought
permission to fill up the vacant posts. Acting on the said complaint, the District Basic Education Officer,
after coming to the conclusion that the permission was obtained on the basis of fraudulent resolution,
revoked the permission granted in respect of the post of Head Master and one Assistant Teacher. By
another order dated 2 August 2016, which is also impugned herein, the permission in respect of the post of
clerk was also revoked relying on the circular letter dated 3 June 2016 and the Government Order dated 6
November 2015.

According to the petitioner, fresh election took place on 13 October 2016 and in which the
petitioner Committee was elected. The signature of the Manager of the petitioner Committee of
Management was attested by the District Basic Education Officer on 24 October 2016. Thereafter, the
petitioner Committee being a duly recognised Committee, by letter dated 7 November 2016, sought
permission to fill up the vacant post of Head Master and Assistant Teacher in the institution. The resolution
passed by the Committee of Management of the Institution in that regard dated 28 October 2016 was
enclosed alongwith the application dated 7 November 2016. The District Basic Education Officer by
impugned communication dated 17 November 2016 declined to accord approval. The circular letter dated 3
June 2016 has been placed on record alongwith the counter affidavit filed by respondent no.3. In the
aforesaid circular letter, which is addressed to the District Basic Education Officers of the State, it has been
observed that by letter of the Directorate dated 6 November 2015, permission was granted to fill up the
vacant posts within the sanctioned limit by 31 March 2016. It has come to the notice of the Directorate
that in various institutions, on account of certain difficulties, selection process could not be completed by
the prescribed time and consequently, the time of completing the selection process was extended upto 31
July 2016. The circular letter further states that in case the selection process is not completed in any
district, by the prescribed date, the concerned District Basic Education Officer and the management of the
institution shall be held responsible for the same. The circular letter further refers to the letter of the
Directorate dated 6 November 2015 on basis of which the selection process was required to be completed.
The Government Order dated 6 November 2015 states that the ban which was imposed by Government
Order dated 15 March 2012 in respect of direct recruitment on the vacant posts in government aided
private junior high schools shall stand lifted. (WORDS 494)

It is admitted to the parties that the ban which was imposed by Government order dated 15
March 2012 was on account of the reason that at the relevant time, the exercise for re-determination of
the sanctioned strength of the institution was being undertaken. Since the said exercise had been
completed, therefore, the ban on appointment was lifted with the issuance of the Government order dated
6 November 2015. Rule 3 (2) contemplates filling of the vacancies within two months of the date when the
vacancy comes into existence. The same could not be adhered to because of the ban imposed by the State
itself. The circular letter of the Directorate dated 6 November 2015 clearly indicates the anxiety of the
Directorate to ensure filling up of the vacant posts by the Management of the institutions, without any
further delay, as these posts had remained vacant for considerable time on account of the ban imposed by
the State.
 EXERCISE NO. 36

Contention raised by the counsel for the applicant is that P.W.-1 was suffering with a serious
ailment like Chikungunya and so he could not examine himself in the Court on a few dates and
adjournment was sought and also granted by the Court. But later on at some stage the adjournment was
refused and evidence of P.W.-1 was closed in the mid way. This closure of his evidence is likely to cause
serious prejudice to the interest of the prosecution. Another submission is that the statement of P.W.-2
also appears to have been misplaced and in place of it some carbon copy is said to have been kept on the
record and that also speaks about the high irregularity which has crept into the proceedings and in that
regard the statement of P.W.-2 needs to be recorded again but the Presiding Officer, seized with the
matter, is not acting in accordance with law, therefore, the proceedings should be transferred to any other
court.

While rebutting the submissions placed by applicant's counsel, it was pointed out by Shri Rahul
Chaturvedi, learned counsel for the opposite party no.2 that the matter has already reached at its
terminating stage and the transfer application has been moved only with the object to scuttle and stall the
proceedings. Moreover if the applicant felt aggrieved by any of the orders passed by the court below, they
should have been challenged before the superior court which has not been done so far and instead of
challenging the judicial orders passed by the court below in a superior court, the applicant has jumped the
gun and chose to move the transfer application which does not appear to be a justifiable course. It was
also pointed out that the accused are in jail and any unnecessary prolongation of proceedings will seriously
prejudice the rights of the accused.

All the contentions which have been placed by the applicant's counsel appear to be in the nature
of criticism of the orders passed in judicial capacity by the trial Judge. If any order makes the applicant
aggrieved, he should have challenged the same in the superior court adopting proper legal recourse but
the same does not appear to have been done. A judicial officer may pass a correct order and may also
pass an incorrect order. That is how and that is why superior courts come into play to look into the
correctness of the subordinate court's order and then pass appropriate order with regard to the same.
Different courts like the courts of Revision, the courts to entertain Applications u/s 482 Cr.P.C., the courts
to exercise powers to issue writs etc., with separate jurisdictions have been carved out to exercise such
respective jurisdictions in the High Court. But passing of the incorrect orders, even if it is presumed that
the same has been done, does not constitute a legitimate ground to transfer the trial. (WORDS 485)

While exercising the jurisdiction of transferring a trial from one court to another this Court does
not deem it fit or even proper to adjudicate upon the legality or otherwise of the orders passed by the
court below. There is hardly any material available on the record which may indicate that the presiding
officer is or was acting unfairly or dishonestly or was acting with prejudice or was influenced by some
extraneous considerations, and therefore, this Court feels disinclined to interfere or to proceed to transfer
the trial. The alleged incorrect or the illegal approach of the trial court must reflect that the same owes its
genesis to some extraneous extra judicial factors which may be said to have tainted the judicious approach
of the Judge. Unless such a possibility appears plausible, this Court ordinarily does not feel persuaded to
exercise powers u/s 407 of Cr.P.C. only on the ground of the trial Judge having passed some incorrect
order.
 EXERCISE NO. 37

With regard to the sugarcane dues of the previous crushing season, it is sought to be contended
that at the time of allotment of cane purchase centres in question by the Cane Commissioner on
20.11.2016, many other sugar mills were also in default of the payment of arrears of previous crushing
season and they were either allotted more quantity of sugarcane and their areas were not curtailed. The
arrears of cane dues of the sixth respondent for crushing season 2015-16 cannot be made the sole
determinative factor in the assignment of cane purchase centres. Each and every guided factor under Rule
22 of Rules of 1954 is equally important in the matter of reservation and assignment of area. The entire
dues for the current crushing season 2016-17 are being duly and timely paid by the sixth respondent.
Against the total dues of Rs.110 lakhs, Rs. 91 lakhs have been paid for the present crushing season 2016-
17 and the position of cane price payment as on 17.1.2017 for the current season 2016-17 has been
brought on record as Annexure CA-4. So far as the dues for the previous crushing season 2015-16 are
concerned, it is submitted that the sixth respondent is making all efforts to clear its debts of the previous
crushing season and the sixth respondent is required sufficient sugarcane for its survival/revival and for
clearing its past dues.

It is submitted that the Cane Commissioner has to strike the balance between the sugar mills for
which he can give weightage to one factor over other keeping in view the prevailing circumstances in the
interest of sugar factory as well as sugarcane growers but it does not mean that he is permitted to
overlook the other factor, rather it can be said that he has to look into the matter of one Sugar Mill in
comparison to other Sugar Mill considering all the guided factors and apply the same in the prevailing
circumstances. Accordingly, the Appellate Authority considered the distance of the disputed Cane Centres
from the petitioner and the sixth respondent. The distance of the cane purchase centres in question is
much closer to the mill of sixth respondent in comparison to the petitioner sugar mill and the Appellate
Authority has rightly considered the same while allotting the cane centres in dispute to the sixth
respondent. The Appellate Authority has also considered the fact that the cane centres in question were
reserved centres of the sixth respondent and the same was continuously allotted to the sixth respondent in
the previous years. The sixth respondent had paid the entire dues towards sugarcane price and
commission for all years except the last crushing season for the reasons beyond its control. The sixth
respondent was constraint to approach the Board of Industrial and Financial Reconstruction (BIFR) in the
year 2015. The sixth respondent is before the BIFR and is undergoing re-structuring. However, the sixth
respondent was restraint by the BIFR from alienating or transferring or otherwise creating any third party
right/interest in respect of their immovable assets without permission of the BIFR. (WORDS 509)

Against the order dated 6.6.2016 the sixth respondent had preferred an appeal before the Appellate
Authority for Industrial and Financial Reconstruction. The AAIFR set aside the order dated 6.6.2016 and
permitted the sixth respondent from selling its assets. In terms of the said order, the sixth respondent had
clearly mentioned the assets to be sold and suggested a scheme relating to the entire sale proceeds from
the sale of its assets which were to be deposited for payment of arrears of cane dues for crushing season
2015-16. The AAIFR directed that the entire sale proceeds from the sale of assets would be deposited in a
joint account to be operated by the nominee of the District Cane Officer and the nominee of the sixth
respondent. The sale proceeds would be used solely for payment of the dues of the cane-growers. The
sixth respondent already entered into an agreement to sell the part of the property area 4.9 hec. for a sum
of Rs.14 crores but due to the demonetization the sale of the property has been delayed.
 EXERCISE NO. 38

From a perusal of Regulation 101, it is clear that ''prior permission' for proceeding ahead with the
selection process is sine qua non for making any appointment. It also transpires from bare reading of the
Regulation 101 that any selection process can be undertaken and proceeded with by the appointing
authority i.e. Management of the institution only after permission for the said purpose is accorded by the
District Inspector of Schools. Once the permission has been granted by the District Inspector of Schools,
the Committee of Management will proceed with the selection process after following the prescribed and
requisite rules for selection and once the selection is made, the appointing authority i.e. Committee of
Management will not be entitled to make appointment by issuing appointment order except with the ''prior
approval' to be accorded by the District Inspector of Schools. The scheme of Regulation 101, thus, is that
once the selection proceeds with the ''prior permission' for the said purpose having been accorded by the
District Inspector of Schools, the Management i.e. appointing authority shall send requisite papers
including proceedings of the selection to the District Inspector of Schools with the request for seeking his
approval before going ahead with the appointment by issuing appointment order to the candidate
concerned.

The distinction here thus needs to be drawn between ''prior permission' and ''prior approval'.
These two phrases in Regulation 101 occur in two different contexts. The ''prior permission' is required to
be given by the District Inspector of Schools after obtaining order from the Director of Secondary
Education before the selection process could be initiated by issuing advertisement for appointment to the
post in question. The ''prior approval' is required to be given by the District Inspector of Schools to the
Committee of Management before the Committee of Management becomes empowered to make
appointment by issuing appointment order to the candidate who stands selected in the selection. There are
certain requisites which are taken care of by the District Inspector of Schools while granting ''prior
permission' to the appointing authority i.e. Committee of Management for initiating the process of
selection/appointment. The requirements which need to be fulfilled granting ''prior permission' for going
ahead for selection are that the District Inspector of Schools shall intimate the number of vacancies to the
Director of Secondary Education and he shall also intimate the students strength and then will seek
necessary order from the Director of Secondary Education. It is only on the order of the Director of
Secondary Education that the District Inspector of Schools shall accord his permission to go ahead with the
selection process to the appointing authority i.e. Committee of Management with the further direction that
while making the selection, rules of reservation shall be followed and the prescribed norms for the post
shall also be followed. Thus, in case in a institution any vacancy against Class III post occurs for any
reason, the Committee on its own without ''prior permission' of the District Inspector of Schools to be
accorded by him in terms of the Regulation 101, cannot proceed with the selection process. (WORDS 514)

It is further to be noticed that as per scheme of Regulation 101, once the ''prior permission' to initiate the
process of selection is given by the District Inspector of Schools, the Committee of Management will
proceed with the selection and will also follow the prescribed rules for selection such as issue of
advertisement in newspapers, consideration of the cases of all eligible candidates and preparation of merit
list etc. Once the process of selection is completed by the Committee of Management, the District
Inspector of Schools is required to accord his approval before any appointment can be made.
 EXERCISE NO. 39

Learned counsel for the petitioner contends that since an application dated 22.04.2016 was made
before the respondent-Bank to accept a demand draft for a sum of Rs.4,65,931/- towards outstanding
dues and to intimate the petitioner in respect of any other outstanding so that the petitioner may clear the
same, but neither any order has been passed on the application nor the bank draft tendered along with
application has been accepted by the Bank. It is further submitted that in view of Section 13 (8) of the Act,
since the entire outstanding dues have been tendered to the respondent-Bank, the secured asset is not
liable to be sold or transferred and no further step is liable to be taken by the Bank in respect of the
secured asset. The thrust of the argument of the learned counsel for the petitioner is that since the
petitioner had already tendered the total outstanding dues by means of a bank draft, the creditor Bank
cannot now proceed any further with the sale or transfer of the secured asset and the liability of the
petitioner is to be written off in view of the Section 13 (8) of the Act.

A bare reading of the aforesaid provision goes to show that requirement is, actual tender of the
outstanding dues including all costs, charges and expenses by the debtor to the secured creditor at any
time, before the date fixed for sale or transfer. It is only when the actual tender is made to the secured
creditor before the date fixed for sale or transfer, the provision places a restriction on the right of the
secured creditor to proceed with sale or transfer of the secured asset and further prohibits the secured
creditor to take any step for transfer or sale of the secured asset. The language of the Section is very clear
that tender to the secured creditor should be made at any time before the date fixed for sale or transfer.
In the case in hand, admittedly, the respondent-Bank proceeded to auction the secured asset on
30.03.2016 for a sum of Rs.28.05 lacs in favour of Smt. Urmila Dixit and Smt. Manju Dixit. The bid offered
by the auction purchaser was confirmed by the respondent-Bank. From the pleadings in the writ petition
itself, it is clear that the application made by the petitioner before the respondent-Bank tendering a sum of
Rs.4,65,931/- by means of a bank draft was dated 22.04.2016. Admittedly, the application was made
much after the auction took place on 30.03.2016. It is also pertinent to note that petitioner-borrower in his
application dated 22.04.2016 has referred the bank draft to be dated 13.04.2016, but photocopy of the
same filed as Annexure 8 to the writ petition goes to show that it is dated 30th April, 2016, which in itself
sufficient to indicate that though the application is dated 22.04.2016, but it was submitted to the Bank on
or after 30.04.2016 when the bank draft was got prepared. (WORDS 495)

Since the tender of the outstanding dues has been made by the petitioner on or after the auction
sale of the secured asset held on 30.03.2016, the same does not confirm to the conditions prescribed by
sub-Section (8) of the Act that tender should be made at any time before the date fixed for sale or
transfer. In view of the fact that since the petitioner tendered the outstanding dues to the respondent-
Bank subsequent to the holding of the auction on 30.03.2016, hence, he is disentitled to claim benefit of
Section 13 (8) of the Act and, thus, the relief prayed for in the writ petition is not liable to be granted. Writ
petition, accordingly, fails and stands dismissed. However, in the facts and circumstances, we do not make
any order as to costs.
 EXERCISE NO. 40

Applying the said analogy, the claim of the father of the respondent petitioner had already been
forwarded and he was very much alive when the Government order dated 13.08.2015 was issued. In such
a situation the State Government or its concerned department ought to have considered the claim of the
respondent petitioner for regularization and then could have proceeded to determine as to whether the
respondent petitioner was entitled to any benefit or not. In our opinion, the fortuitous circumstance of the
death of the father of the respondent petitioner does not absolve the State Government of its obligation to
consider the claim of regularization of the father of the respondent petitioner. There can be a case where
the consideration has been made and the regularization accepted but before the order reaches a man dies
or his death takes place in the near vicinity or simultaneously with regularization. In this situation, the
claim of regularization of the deceased employee does not remain an option to be ignored by the State
Government. The State Government or its authorities are under an obligation to consider such a claim and
to award any consequential benefits if the process has been set into motion as has happened in the
present case. Once the father of the respondent petitioner is found entitled to be regularized as on the
date of the Government order dated 13.08.2015, on which date he was admittedly alive, then in that event
the claim of the respondent petitioner can also be considered.

The consideration of the right of being regularized by operation of law while in force had already
accrued in favour of the father of the respondent petitioner, and his death in between further gave rise to
the expected consequential claim of compassionate appointment of the petitioner, provided his father's
services were declared regular. The consideration of such right, whether had accrued, does not get
eclipsed nor could it be abandoned. If the consideration results in the services of the petitioner's father
becoming regular, then the Full Bench judgment in the case of Pawan Kumar Yadav (supra) would not be
an impediment for the respondent petitioner to be considered for compassionate appointment. The
appellant State and it's authorities therefore cannot escape this exercise and defeat the right of
consideration by their inaction or the absence of timely and prompt action. Such exercise of consideration
will not evaporate because of untimely death which is a fortuitous circumstance so as to result in any
advantage to the State. Apart from this, in the present case those who were at par with the father of the
respondents had been extended the benefit of regularization. This distinguishing feature therefore is in
addition to the issues involved in the case of Pawan Kumar Yadav (supra) and consequently, the claim of
the respondent petitioner was at least entitled for consideration by the State Government in the light of
the observations made hereinabove. (WORDS 486)

Learned counsel for the appellant State submits that the services of the father of the respondent
petitioner could not be straight away treated to have been regularized and the learned Single Judge erred
in issuing directions for consideration of appointment on compassionate basis of the petitioner. We agree
with the submissions of the learned standing counsel for the appellant and to that extent, the judgment
cannot be sustained. Learned Single Judge also does not appear to have noted the judgment of Pawan
Kumar (supra). Consequently, we modify the judgment dated 22.11.2016 to the extent that it shall be
open to the appellant State to consider the status of regularization of the father of the respondent and
then proceed to take an appropriate decision with regard to the claim of the respondent petitioner for
compassionate appointment in the light of the observations made hereinabove. We may however clarify
that the ratio of this judgment would be available only prospectively and should not be construed to
reopen any decided matter or to initiate a stale claim.
 EXERCISE NO. 41

From the record of the disciplinary proceedings, it emanates that the petitioner has written an
application dated 1.12.2001 to the Inquiry Officer requesting therein to supply the copies of the statement
recorded, if any during the course of inquiry. On this application, there is an order of the Inquiry Officer to
the Senior Administrative Officer to supply copies of the documents on deposit of requisite fee so that he
may submit his written reply in time but there is no document to show that the documents so demanded,
were actually supplied to him. On 3.12.2001, the petitioner again wrote an application to the Inquiry
Officer demanding 13 documents, details of which is given in clear words in the said application. There is
an application dated 15.1.2002 of the petitioner on record in which petitioner has requested to keep the
inquiry proceedings in abeyance as he has given a representation to the High Court for transfer of inquiry
to some other district. There is no order on the said application. There is another application dated
22.1.2002 written by the petitioner to the Inquiry Officer demanding certain documents, apparently, that
too were not supplied to enable him to put his version effectively. Moreover, the petitioner had indicated
the relevancy of the documents so demanded by him. Similar request was made vide applications dated
2.2.2002 and 8.2.2002 and 28.2.2002. There is nothing on record to show that at any point of time, the
Inquiry Officer had observed that the documents demanded by the petitioner are not relevant or the
witnesses whom the petitioner wants to examine, are not relevant. On the contrary, there is admission of
the opposite parties that the petitioner had demanded the documents. Mere saying that the documents
were supplied to the petitioner would not absolve the responsibility of the opposite parties. There is no
documentary evidence/letter to prove that the documents so demanded by the petitioner were supplied
through a letter. It may be added that the stand taken in paragraph 14 of the counter affidavit is contrary
to the record produced by the respondents.

It may be added that in the charge-sheet, the primary charge against the petitioner is that during
preliminary inquiry, it was found that a racket is operating for filing fake claim petitions on fictitious names
with fake documents and petitioner is also involved in filling the fictitious claim petitions with the aid of
certain clerks and Advocates. A perusal of the inquiry report reveals that the Inquiry Officer did not
examine any witness to prove the charges levelled against the petitioner and only on the ground that there
is no denial by the petitioner, it has been held that he was involved in the racket and recorded that both
the charges proved. There must be clinching evidence to connect the delinquent employee with the
charges levelled against him. It was the pious duty of the Inquiry Officer to ascertain the truth being the
independent investigator as to how and in what manner the petitioner is involved in racket. (WORDS 504)

He should have also ascertained as to who are other employees/Clerk, involved alongwith the
petitioner. On perusal of the inquiry report, it can easily be gathered that the Inquiry Officer has proceeded
in haste with a pre-determined mind and did not observed the settled procedure in the matter of
departmental proceedings. The Inquiry Officer did not bother to examine the departmental witnesses to
prove the documents relied upon and utilized against the petitioner. For the reasons aforesaid, we are of
the definite view that the inquiry proceedings besides being vitiated on account of non-supply of relevant
documents and copy of the preliminary inquiry report before inflicting major punishment but also cannot
be sustained being in blatant disregard of the principle of natural justice. It is pertinent to add that the
specific charge against the petitioner.
 EXERCISE NO. 42

In reply, it has been submitted by the learned AGA that the case of the prosecution is no doubt
based on circumstantial evidence. Since the FIR indicates that the murder was committed by some
unknown persons around 6.30 p.m on 7.8.2007, but complicity of the accused persons was found during
investigation on ground that the deceased-Narendra Dwivedi, Deputy Jailer of Meerut Jail was very honest,
diligent and young officer and he wanted to carry out jail reform and the accused persons did not like such
an honest officer and tried to eliminate him at convenience and for securing their objective they in
collusion with others hatched deeply-rooted conspiracy and killed the deceased. Such murder is not only
an offence simplicitor like other murders, but also an offence of particular nature and an attempt to
suffocate life and voice of those officers, who are honest and diligent, and this attitude of the offenders
need be dealt with sternly by the Court. It is a crime against the whole society. The motive for committing
the crime has been reasonably proved. Not only this, Mrs. Sandhya Dwivedi- wife of deceased- has
categorically stated that at the time when she came out of her home along with the deceased, accused
Rajiv Kumar Singh was conversing on telephone about departure of deceased from his home and soon
thereafter deceased was shot dead. Certain witnesses, who saw the occurrence and who gave statement to
that effect to the Investigating Officer have been won over by the accused and they did not support the
incident before the trial court, but their statements recorded by the Investigating Officer are substantial
one and carry element of truth, which statement cannot be overlooked while appreciating the merit of the
case. May be, that the Investigating Officer failed to collect the entire evidence but the material collected
during the course of investigation is fair enough to establish guilt of the accused. Even no cause has been
shown for false implication of the accused for causing murder of Narendra Dwivedi. All the links of the
chain of circumstances have been consistently proved, which exclude every hypothesis of innocence of the
accused and point to the culpability of the accused that they and they alone were involved in killing the
deceased.

Submission has also been made on behalf of the complainant through counsel Sri Amit Daga.
Learned counsel vociferously claims that the incident itself shows that the deceased- Narendra Dwivedi
was brutally murdered. The deceased was killed because he was honest, hard working and reputed officer,
who never succumbed to the voice of the corrupt and that attitude was detested by the accused persons
and they were inimical towards the deceased. They hatched intriguing conspiracy to eliminate the
deceased. It is a case where crime has been committed against a man purely devoted to his duty. He was
striving to carry out jail reform, particularly on the administrative side. The Investigating Officers did not
carry out their duty cast upon them by law. (WORDS 500)

Relevant call details, which would have accurately pin-pointed guilt of the accused was not
collected for reasons best known to the Investigating Officer. There was lot of evidence indicating various
clues and establishing involvement of the appellants in the commission of the crime but the Investigating
Officers deliberately omitted to collect substantial, relevant and important material. The Investigating
Officer worked in most casual manner and the higher authorities kept themselves aloof from such
particular case and did not care to entrust the investigation to higher police officer- not below rank of
Deputy Superintendent of Police and above for eliciting the truth. Even the higher authorities tried to hush
up the matter for the reasons best known to them. The fact is that the higher authorities knew it well that
the deceased was an honest and hard working officer and he refused to yield to the demand of corrupt
officers, and such officer was killed brutally and higher authorities deliberately sidelined themselves.
 EXERCISE NO. 43

While applying the principle of Horizontal Reservation, category has a role to play as at the point
of time when Horizontal Reservation is to be pressed, then based on merit, candidates in question are to
be adjusted in their respective social category. A candidate, who has proceeded to make an application for
the purposes of Horizontal Reservation under the OBC/SC/ST category, cannot be permitted to change
his/her category, whereas in Vertical Reservation once you are selected, on merit, such a change is
permissible by operation of law subject to his/her desire to remain as a general candidate. Apex Court in
the case of Ritesh Shah vs. Dr. Y.L. Yamul, 1996 (3) SCC 253 also took the view that candidate belonging
to reserved category, who could be admitted on the basis of open merit, should be treated as open
category candidate for the purposes of computing reservation but they should be given their first option for
admission to Graduate/Post Graduate courses in colleges where seats are kept for reserved category and
thereafter less meritorious candidates be considered for admission in whichever college reserve seat is
available. Sub-section (5) of Section 4 of 2006 Act is in line with the aforesaid judgement of Apex Court,
as meritorious candidate has been given an option to remain as a general candidate or to exercise his
option for the reserved seats. His/Her merit as a general candidate would give a larger choice i.e. to opt
for unreserved seat and can also go in for reserved category seats.

In view of this, once a candidate has specified his/her category in reference to Special
Reservation, then he/she has to be adjusted in their respective categories and the reserved category
candidate in horizontal reservation cannot ask for placement against open category by claiming that they
have higher merit, inasmuch as, at the point of time of providing Horizontal Reservation adjustment is to
be made, then various adjustments is required to be done as per the formula that has been approved and
ratified by the Apex Court. In the matter of horizontal reservation, adjustment would be made by making
appropriate placement in appropriate categories. The Apex Court was conscious of this fact, that such a
provision may be subjected to misuse and accordingly, position was sought to be clarified by giving
examples and then providing that if horizontal reservation is not satisfied, then alone requisite number of
special reservation candidate have to be taken and accommodated/adjusted against their respective social
reservation categories. Here before us during the course of arguments, this fact has been conceded that
while applying the principle of horizontal reservation, the criteria prescribed for vertical reservation has
been adhered to inasmuch as opposite party no.5 was higher in merit and in view of this, she has been
called based on her State rank at earlier point of time, then at the said point of time, as one seat at GSVM
Medical College Kanpur reserved for NCC OBC stood filled up, the second NCC Open Category seat which
was lying vacant has been offered to her. (WORDS 509)

In the matter of horizontal reservation once the reservation in question is a compartmentalised

one, then every candidate has to be placed in the fixed place as per the social class from which he/she
hails. When overall Horizontal Reservation is to be pressed, then based on merit, candidates in question
are to be adjusted in their respective category and the candidates, who are at the bottom of the list as per
the merit, will have to make place for horizontal category candidates irrespective of the social class to
which they belong. A candidate, who has proceeded to make an application for the purposes of Horizontal
Reservation under the OBC/SC/ST category, cannot be permitted to change his/her category, whereas in
Vertical Reservation once you are selected, on merit, such a change is permissible, by operation of law,
and in view of this, once such is the factual situation that is so emerging that all the candidates once they
have specified their category in reference to Special Reservation, then they have to be adjusted.
 EXERCISE NO. 44

Per contra, Sri Ankit Saran, learned counsel appearing for the Committee of Management of the
Institution has submitted that there is no provision of notional promotion in the Intermediate Education
Act. It is only after the direction of this Court for being considered the promotion was granted by the Joint
Director of Education, Bareilly Division, Bareilly vide order dated 11.1.2012 and that earlier the petitioner
had approached this Court in the year 2008 regarding claim for promotion, the direction was issued in the
year 2011 and therefore, no such notional promotion from the back date can be granted to the petitioner
particularly in absence of any provision for the same. Learned Standing Counsel appearing for the State
respondent has also advanced his argument to the same effect.

From perusal of the judgement dated 16.11.2011, which is quoted above, it is clear that in the
aforesaid petition in paragraph 4 of the counter affidavit filed by the Committee of Management, it was
admitted that the adverse entry against the petitioners including the present petitioner were expunged
vide resolution dated 20.3.2005 and vide resolution no. 6 dated 21.7.2007 promotion was granted to the
petitioner by the Committee of Management of the Institution and in this light the petitioner was asked to
withdraw the writ petition no. 38817 of 2006, which is accordingly withdrawn on 16.11.2007. The
aforesaid judgement has clearly noticed this fact that the adverse entry has already been expunged by the
Committee of Management and the same were never communicated to the petitioner and therefore, the
promotion of the petitioner could not have been rejected. In this light, it appears that the stand taken by
the respondents that the petitioner was not teaching class of High School, also did not find favour by this
Court, therefore, the direction was issued to re-consider the claim of the petitioner for promotion on the
post of Lecturer (English) in accordance with law. Consequently, the order dated 11.1.2012 passed by the
Joint Director of Education, Bareilly granting promotion from the date of joining, was passed. A perusal of
the order dated 20.9.2012 passed in writ petition no. 48437 of 2012, it is very much clear that prima facie
being satisfied with the claim of the petitioner that his claim for notional promotion with back date be
considered, direction was issued. The District Inspector of Schools, who is an authority subordinate to the
Joint Director of Education, who had passed the order dated 11.1.2012, has passed the order that in view
of the order of the Joint Director of Education, the date of joining shall be taken to be the date of
promotion and that there is no provision of notional promotion, hence the claim of the petitioner was
rejected. From the facts as reflected from the order dated 16.11.2011 as quoted above, it is clear that the
Committee of Management had also passed the resolution no. 6 dated 21.7.2007 granting promotion to
the petitioner. (WORDS 490)

Since the Court by itself has not granted relief of notional promotion from the date when the post
fell vacant and only directed to consider the claim of the petitioner for granting notional promotion and the
record also reflects that the petitioner is litigating since long but no positive direction was given by this
court accepting claim of the petitioner and only the authorities were directed to consider the claim of the
promotion, more so, when the petitioner has admittedly already retired from service and Dr. H.N. Tripathi,
learned counsel for the petitioner has fairly submitted that the petitioner will not claim any arrears of
salary for the period of notional promotion and only the service of the petitioner may be counted for the
purpose of revising his pensionary benefits and therefore, in all fitness of the case, it would be appropriate
that the petitioner be accorded notional promotion from the date of passing of the resolution no. 6 dated
21.7.2007 by the Committee of Management as admitted in paragraph 4 of the counter affidavit filed by
the Committee of Management in Writ Petition No. 27919 of 2008 as already quoted above.
 EXERCISE NO. 45

The Government Order dated 17.8.2002 clearly provides for selection of fair price shop agent for a
village panchayat by a resolution of the village panchayat in its open meeting. A limited exception to this
normal rule in public interest has been provided in para (11) of the aforesaid Government Order which
authorises District Magistrate to direct for allotment of fair price shop on recommendation of committee
constituted as per the Government Orders under the Chairmanship of the Up-Ziladhikari, where a village
panchayat either does not pass a resolution or where there arises dispute in passing resolution. Except in
these two circumstances, District Magistrate or the Committee constituted under the Chairmanship of Up-
Ziladhikari have no authority to make allotment of fair price shop in any village panchayat, without
resolution of the village panchayats in its open meeting as per statutory provisions including Rule 46, 46 A
and 46 B of the U.P. Panchayat Raj Rules 1947. Having clarified the legal position as aforesaid, now I
proceed to examine the validity of appointment of the respondent no.7.

It appears that the District Level Selection Committee took up the matter and invited applications
by advertisement dated 8.8.2016 subject to the condition that applications for agents for those Village
Panchayats shall be excluded from lottery where selection is made by Village Panchayat in its open
meeting. There were 229 vacant fair price shops. Block Development Officer have provided details of 84
fair price shops where Village Panchayats have selected fair price shops agents in their open meeting.
Thus, 145 Village Panchayats were liable to be considered for selection of agents through lottery. For 15
fair price shops merely single applications were received and as such there was no need for lottery with
respect to these 15 fair price shops. No applications were received for fair price shops of eight village
panchayats. Thus, 122 fair price shops in different Village Panchayats were liable to be considered for
selection of agents through lottery by the District Level Committee pursuant to the advertisement dated
8.8.2016, which included the Village Panchayat in question i.e. Village Panchayat, where an open meeting
was held on 8.8.2016 and a resolution was passed proposing the name of the respondent no.7 for
appointment as fair price shop agent. The proposal of the Village Panchayat was approved by the Tehsil
Level Committee and appointment letter was issued by the S.D.M. Sadar, Basti on 31.8.2016. It appears
that due to inadvertence the fair price shop of Village Panchayat could not be excluded from the list of
Village Panchayat for consideration of the District Level Committee for appointment of fair price shop
agents through lottery. Under the circumstances, when the error came to the notice of the authorities, it
was rectified and the appointment of the respondent no.7 which was made on the basis of his selection by
the Village Panchayat in its open meeting, was continued which does not suffer from any illegality.

(WORDS 494)

Submission of learned counsel for the petitioner that once the petitioner has been selected by the
District Level Committee in its meeting on 4.10.2016 pursuant to the advertisement dated 8.8.2016, the
selection of respondent no.7 is wholly without authority of law and jurisdiction, has no substance. Village
Panchayats have been given constitutional status under the Constitution of India. The normal mode of
selection of fair price shop agents of Village Panchayats is by the majority opinion of members of Village
Panchayat. The opinion of members in the open meeting of the Village Panchayat for selection of an agent
represents the will of people. The choice of an officer either in selection by lottery or otherwise, can not
ordinarily override the majority view expressed by members of the Village Panchayat in an open meeting
of the village panchayat for selection of a fair price shop agent.
 EXERCISE NO. 46

Contention of Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan, Advocate
for the petitioner was that the Will dated 4.7.1991 executed by Hasan in favour of the petitioner and
registered as per law was duly proved by examination of one of the attesting witnesses, but, the same has
been disbelieved by the courts below only on the ground it excluded the natural/legal heirs and also that
there were certain discrepancies in the Will, such as, the last page appeared to have been added
subsequently, containing the details of the holdings of Hasan, whereas, according to him, such details were
mentioned on the first page of the Will itself. In support of his contention Sri Khan relied upon various
decisions which shall be referred later while discussing the merits of the case. He also contended that one
of the reasons which weighed heavily with the consolidation courts was that the Will was executed at a
time when the testator did not have the right to transfer his holding whereas, according to him, firstly, Will
is not a transfer, but a mode of succession; secondly, it is well settled that Will being effective on the
death of the testator, if by then, he had acquired transferable rights over the land sought to be
bequeathed, then the Will could not be held to be invalid merely because at the time of its execution the
testator did not have such rights, as, his rights over the land in question as on the date of death had to be
seen. In this regard he relied upon various decisions of this court which shall be referred in the later part
of the judgment. Lastly, Sri Khan contended that the petitioner had filed an application for getting the
signatures of Hasan as appearing on the Will examined by a Handwriting Expert, but, the said application
was never decided and findings were recorded as to the validity of the Will ignoring the same, which,
according to him, was an apparent error committed by the Courts below.

On the other hand Sri Azmal Khan, learned counsel appearing for the contesting private
respondents, the sons of Hasan, contended that Section 170 of the U.P. Z.A. & L.R. Act barred the
execution and registration of such a Will by a Sirdar or a Bhumidhar with non-transferable rights,
therefore, in the face of such statutory bar the Will could not be read in evidence nor could the petitioner
claim any title based thereon. According to him, execution of such a Will was also contrary to the object
contained in sections 195 and 198 of U.P. Z.A. & L.R. Act which was to grant land to landless labourers for
their sustenance and livelihood. Relying upon a decision of this court reported in 2006(1) JLR 789, Maan
Singh v. Addl. Collector, Muzaffarnagar & ors., he contended that if transfer of land in such a way is
permitted it Will defeat the very object for which the land has been granted to a landless labourer and will
encourage their exploitation. (WORDS 508)

According to him, the Will itself could not have been registered on 4.7.1991 as it was in clear
contravention of section 170 of the Act 1950. Furthermore, learned counsel argued that apart from the Will
having not been proved as per law it was also shrouded with suspicious circumstances, as, Hasan was an
employee of the petitioner and worked at his brick-kiln when the Will is said to have been executed, the
petitioner i.e. the employer was in a dominant position so as to influence Hasan, the relationship was also
fiduciary. It is quite unnatural that an employee would bequeath his holding in favour of the employer who
owned a brick-kiln, that too, when his natural/legal heirs were alive, a circumstance which has not been
explained by the petitioner nor has been justifiably explained in the Will. In this regard he placed reliance
upon various decisions of the Supreme Court and this court some of which Will be referred in the later part
of this judgment.
 EXERCISE NO. 47

On behalf of the plaintiff-respondent, it has been argued that as to what is the rate of rent of the
accommodation is a pure question of fact and once the court below has returned a finding on the rate of
rent, the revisional court ought not to interfere with the said finding in exercise of its revisional powers
and, therefore, the revision is liable to dismissed.

No doubt as to what was the agreed rate of rent for the premises in question is a question of fact
but a finding on a question of fact must be returned by appreciating the evidence that has been led by the
parties and not by simply narrating what evidence has been led. A finding returned after consideration of
all relevant evidence on question of fact is not ordinarily to be interfered with by a revisional court unless
the same is perverse or is based on taking inadmissible evidence into consideration or is based on
misreading of evidence. But for there to be a consideration of relevant evidence, the evidence led must be
appreciated by application of a judicial mind. When both sides in a suit or proceeding lead their evidence,
the court is required to appreciate the evidence and, thereafter, to draw its conclusion on the issue.
Essential feature of appreciation is the rationale behind accepting one evidence over the other. That
rationale must be reflected in the judgement/order. Therefore, the duty of a court of fact does not get over
by disclosing as to what evidence has been led by the parties before it but is discharged when it returns a
finding after appreciation/analysis of the evidence. A finding which has been returned without application
of judicial mind or without analysing the evidence as to why one evidence has more weight than the other
or without considering the entire relevant evidence led before the court, renders the finding vitiated.

In the instant case, there was no documentary evidence either in the shape of a rent note or a
rent agreement or a rent receipt as regards agreed rate of rent. Both sides had led oral evidence in
support of their respective cases. Apart from oral evidence, the defendant had placed the quinquennial
municipal assessment record of 2003-09 to suggest that the annual value of the premises was Rs.
11520/-. The basis of such annual assessment was brought on record through the statement of DW-3, who
was Tax Inspector, Nagar Nigam. As to why the evidence of the plaintiff was more acceptable as compared
to the evidence of the defendant is not at all reflected from the order impugned. Moreover, the testimony
of DW-4 and DW-5, who have deposed in respect of the agreed rate of rent being Rs. 500/- per month,
has not been considered at all. Under the circumstances, this Court is of the view that the finding returned
by the court below on issue no. 1 i.e. agreed rate of rent of the premises in suit, is vitiated and, therefore,
the same requires reconsideration. (WORDS 504)

As to what weight is to be attached to the testimony of the plaintiff and defendant witnesses as
well as to the municipal assessment record is in the domain of the trial court and, therefore, this Court
finds it appropriate not to express any opinion on the merits of the evidence. However, since this Court is
of the view that the finding on the rate of rent for the premises in question requires reconsideration, the
impugned judgment and decree, which turns on the crucial issue as to what was the agreed rate of rent
between the parties, deserves to be set aside. For the reasons recorded herein above, the revision is
allowed. The judgement and decree passed by the court below is hereby set aside. The matter is remanded
back to the court below to decide the case, afresh, in accordance with law, preferably, within a period of
two months from the date of filing of certified copy of this order. There shall be no order as to costs.
 EXERCISE NO. 48

The Apex Court in criminal case under Article 32 of the Constitution of India namely Satya
Prakash (Supra) keeping in view the fact that in spite of the order of Apex Court directing for his release in
the second case he could not be released on account of first case wherein he was undergoing life
imprisonment. In the said peculiar backdrop as petitioner has undergone more than 21 years of
imprisonment with remission, his release on bail for six months has been directed. This Court can also in
exercise of its authority under Article 226 of the Constitution of India where the issue of personal liberty is
involved can pass appropriate order keeping in view the peculiar characteristic of the case and specially
when under the scheme of things provided for under Sections 432 and 433 of Cr.P.C. and the U.P.
Prisoners Release on Probation Rules 1938, there is no such provision for release on bail provided for. Here
prayer for bail has been pressed before us by requesting that bail should be allowed to petitioner as
petitioner for more than 21 years, is in jail with remission. It is true that bail has got direct co-relation with
the personal liberty of the accused as well as the convict and this is also equally true that more than 21
years period has already been spent by petitioner in jail with remission and the application for release in
Form-A of petitioner is pending, then issue before us is to the effect as to whether we in the facts of the
present case, proceed ahead and enlarge the petitioner on bail pending application for remission and
release on purely humane considerations.

In our considered opinion in the matter of grant of bail in exercise of authority under Article 226
of the Constitution of India in post conviction cases discretion of grant of bail should be rarely exercised
and in case such an authority is required to be exercised in the facts of the case then such order must
reflect perfect balance between conflicting interests namely sanctity of individual liberty and the interest of
society. Once conviction has been recorded and convict is undergoing sentence then bail is an exception to
the said rule as there is requirement of shielding the society from the hazards of those committing crime
and potentiality of repeating the crime. Each case for the purposes of bail has to be considered on its own
merit. Here bail cannot be accorded to petitioner for the simple reason that petitioner was declared as
absconder and he was apprehended at Singapore Airport on 21.04.1995 pursuant to red-corner notice
issued and thereafter order has been passed for extradition of the petitioner to India to undergo trial and
thereafter he was convicted by Designated Judge (TADA) Kanpur for conspiracy to commit the murder of
one L.D. Arora in the year 2008 and sentenced to imprisonment for life. The appeal preferred by the
petitioner against his conviction was dismissed by the Apex Court and his conviction of life and sentence
has been upheld. (WORDS 509)

Once such is the factual situation that on one hand petitioner has moved application (Form-A) for
release on the premises that he has spent more than 21 years period in jail with remission and on the
other hand his complicity has been reflected in a criminal case bearing Case Crime No. 260 of 2015 under
Section 364-A and 120 B IPC Police Station Kotwali district Allahabad wherein evidence has been collected
to the effect that he hatched the conspiracy of kidnapping of Pankaj Mahendra for demanding ransom of
Rs. 10 crores. Once such is the factual situation that has so emerged in the present case that during the
pendency of the application for release, complicity of petitioner has been reflected therefore, in view of
this, qua the request for grant of bail, in our considered opinion merely because petitioner has spent more
than 21 years in jail with remission, same cannot be absolute ground for directing release of petitioner on
bail during the pendency of the application in question.
 EXERCISE NO. 49

Learned counsel for the petitioner submitted that a valid detention order should reflect that the
authority was aware that the detenu was already in prison under judicial custody and there was reliable
material before him on the basis of which he had reason to believe that there was every possibility of the
detenu being released on bail and in case of such release the detenu would indulge in prejudicial activities
and in order to prevent him from indulging in any activities affecting the public order or the tranquility of
the community, it was imperative to pass an order for his preventive detention and unless the aforesaid
satisfaction is recorded, the application of mind by the detaining authority cannot be proved and testing
the impugned order on the aforesaid principle, the impugned order appears to suffer from vice of complete
non application of mind. Learned counsel for the petitioner next submitted that since on the date of the
passing of the detention order, the petitioner was already in jail and mere possibility of his release on bail
was not enough for preventive detention unless there was material before the respondent no.2 justifying
the apprehension that detenu would indulge in prejudicial activities in case of his release on bail. He next
submitted that although the detaining authority has in the grounds of detention recorded his satisfaction
that the petitioner who was in jail on account of his being accused in case crime no. 337 of 2015, under
Sections 147, 148, 149, 452, 307 IPC, had moved a bail application before the Sessions Judge and there
was strong possibility of his being released on bail and in the eventuality of his being released on bail he
would again indulge in similar activities prejudicial to the public order but in the instant case there was no
material made apparent on record that the detenu if released on bail was likely to indulge in activities
prejudicial to the maintenance of public order and hence the impugned detention order cannot sustained
and is liable to be set aside. In support of his aforesaid submissions, learned counsel for the petitioner has
placed reliance on Shashi Agarwal Vs. State of U.P. and others reported in 1988 (1) SCC 436.

Per contra learned AGA submitted that the impugned detention order does not suffer from any
illegality or infirmity requiring any interference by this Court. He further submitted that there was sufficient
material before the respondent no.2 justifying his belief that in case the detenu was released on bail, he
would again indulge in activities disturbing the public order.

We have very carefully scanned the impugned order and the grounds of detention and also the
counter affidavits filed on behalf of the respondent nos. 1 to 4 in this writ petition and we are constrained
to observe that no material justifying the apprehension that detenu would indulge in prejudicial activities in
case of his being released on bail was placed before the respondent no.2. (WORDS 494)

In this connection, it is, however, necessary to bear in mind that the past conduct or antecedent
history of the person on which the authority purports to act, should ordinarily be proximate in point of time
and should have a rational connection with the conclusion that the detention of the person is necessary. It
would, for instance, be irrational to take into account the conduct of the person which took plate ten years
before the date of his detention and say that even though after the said incident took place nothing is
known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of
the said incident which is ten years old, the authority is satisfied that his detention is necessary. In other
words, where an authority is acting bona fide and considering the question as to whether a person should
be detained, he would naturally expect that evidence on which the said conclusion is ultimately going to
rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies
the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We ought to
add that it is both inexpedient and undesirable to lay down any inflexible test.
 EXERCISE NO. 50

Sri K. Shailendra, learned counsel for the applicant of review application submitted that there is a
mandatory provision of law that for deciding the appeal under Section 100 CPC. It is a condition precedent
to exercise power of High Court to formulate superficial question of law and pass order accordingly and
second appeal cannot be decided merely on the equitable ground. He further submitted that in the present
matter no specific question of law was framed, no lower court record was summoned for consideration and
at the time of admission, this Court had allowed the appeal after hearing the arguments of counsel for the
parties. According to him, this was apparently an illegal procedure adopted by this court at the time of
passing impugned judgment dated 13.5.2016, which is error apparent on the face of record. His
submission was that although argument on points of judgment were placed by counsels for both the
parties, but instead of framing of substantial question of law before passing the judgment, this Court had
erroneously passed the judgment of allowing the appeal, therefore said judgment should be set aside and
matter should be re-heard and re-decided after framing substantial question of law.

These submissions were opposed by learned counsel for the opposite-party, who submitted that in
this matter at the time of hearing of second appeal all the questions on facts and law including all the
possible substantial question of law were appreciated and then after due consideration on every points,
judgment in question was passed. He contended that every fact in this matter was proved and admitted,
and at the time of hearing of Second Appeal, concurrent finding of fact was there, which had earlier been
given by trial court and was confirmed by first appellate court and said finding of fact was being supported
by respondent side. The judgment in Second Appeal was on the point of pure question of law, for which
admitted facts were available before this Court, which had considered them, discussed them and judgment
in question was passed after appreciating and deciding those points. He further submitted that after
considering those points in said judgment, Supreme Court had affirmed the judgment and it had
specifically been observed that for said judgment of Second Appeal there is no reason to entertain SLP. His
further alternative argument was that every probable substantial question of law was raised through
argument of Second Appeal, that was mentioned specifically by this Court and was decided on merits
without any factual or legal error. In such matter, there is no legal propriety to rehear the matter on
technical ground for passing same judgment which is not erroneous on merits. So this review application
should be rejected as it is found that this judgment was passed after considering the admitted facts and
admitted legal position. It is a fact that ordinary procedure is that before allowing of any appeal, generally
substantial question of law should be framed at the time of admission of appeal. (WORDS 499)

But in present matter at the time of hearing of Second Appeal, this Court had not found any
reason to summon original record because of relevant records and their copies were found available with
the memorandum of Second Appeal and relevant facts were admitted. Parties were afforded opportunity of
hearing, and the impugned order was passed on merits after appreciating the arguments of the parties.
The judgment in question was not passed with erroneous knowledge of law or procedure. After hearing,
this Court had found that relevant points, relating to the matter in appeal, can be decided immediately on
the basis of material available before this court in view of relevant legal provisions. Accordingly this Court
had passed the said judgment, in which detailed discussion of contentions of both the parties was made
and the matter was decided. Although no formal substantial question of law was framed by this Court, but
the question or point of law relating to matter was properly considered, appreciated and discussed by this
Court at the time of passing said judgment dated 13.5.2016 on its merits.
 EXERCISE NO. 51

We have before us the post mortem report of the deceased Sadhna which confirms that the
deceased had died at about 23:30 hours on 13.12.2001 due to asphyxia as a result of ante-mortem
injuries found on the dead body of the deceased. Dr. A.S. Rathore who had conducted the post mortem of
the dead body of the deceased and prepared and proved her post mortem report Ex. Ka5 during the trial
deposed that the ante-mortem injury no. 2 found on the deceased's dead body fully corroborates the
manner of assault on the deceased Sadhna as described in the FIR. Before we embark upon to examine on
merits of the rival contentions raised by the learned counsel for the parties before us, we find it
appropriate to evaluate the evidence on record regarding the actual occurrence and it being witnessed by
the so-called eye-witnesses. Although PW1 in her examination-in-chief has fully corroborated the version
of the incident as narrated by her in the written complaint Ex. Ka1 and proved the same but she on page 9
and 10 of the paper book in her cross-examination deposed that the father of Pawan Kumar was also living
with him and her daughter in his house and when on the date of incident accused-appellant had come to
his house in a drunken state and started abusing his daughter and her daughter had retaliated the
accused-appellant had created an ugly scene in his house on which her daughter had complained to her
father-in-law that she was being beaten up by her husband.

She further deposed that no one from the locality was present in the house at the time of
occurrence and the accused-appellant had severely beaten his father also causing multiple injuries to him
but his father had kept quiet and had not made any noise and after beating his father the accused-
appellant had left the house and gone somewhere and it was then that she and father of the accused-
appellant had gone to the police station where she was informed that the police would soon reach the
place of occurrence however when she returned from the police station to the house of her daughter
Sadhna after a lapse of considerable time she saw her daughter lying dead in the Verandah of her house.
In the meantime the police had also arrived. Thus from the facts deposed by PW1 in her cross examination
it is proved that although on the date of the occurrence an altercation had taken place between the
accused-appellant, his wife Sadhna and his father and he had beaten both his wife and his father in a
drunken state and thereafter he had left his house and gone somewhere. It also follows from her evidence
that when she and father of the accused-appellant had gone to the police station leaving the deceased
Sadhna in the house she was alive and after they had returned from the police station after a lapse of
considerable time, they had found the dead body of the deceased Sadhna lying in the Verandah of the
house of accused-appellant. (WORDS 512)

In view of the above, the claim of PW1 that she was present at the place of incident at the time of
the actual assault and she had seen that the accused-appellant pressing her neck with a shawl which
resulted in her death does not appear to be true. It transpires from her evidence that no one was present
in the house of the accused-appellant at the time when her daughter was asphyxiated to death. It is
noteworthy that PW1 was neither declared hostile after having failed to support the prosecution case nor
she was confronted by the DGC (Criminal) with the facts deposed by her in her examination-in-chief by re-
examining her. Since from the evidence of PW1 itself it is proved that at the time when the accused-
appellant Pawan Kumar had left his house after quarreling with his wife and father, his wife Sadhna was
alive and the prosecution having failed to lead any evidence to prove that after PW1 had left for the police
station with the father-in-law of her daughter Sadhna who was admittedly alive at that time, the accused-
appellant had returned back to his house, it cannot be said that what had happened inside the house.
 EXERCISE NO. 52

The writ court cannot issue a direction, which has the effect of conferring jurisdiction upon an
authority, which is not vested in it by law nor can issue a direction so as to deny exercise of jurisdiction by
an authority, which is so vested in it by law. It is for the legislature to create forum and once such forums
have been constituted, the writ court would ordinarily not issue a direction permitting a different course. It
appears that learned Additional Advocate General appearing for the State of Uttar Pradesh, being
conscious of such statutory scheme has taken the stand before us that a direction could have been issued
by the writ court only to the Registrar for holding election under Section 25(2) of the Act and such a
direction could not have been issued to the Authorized Controller for this purpose. It is otherwise
interesting to note that in the present case, the Authorized Controller has further delegated its power and
has directed the Sub Divisional Magistrate to conduct election, which is even otherwise not permissible in
law. It is further apparent that competent authorities under the Act of 1860 have not yet resolved the
issue of membership nor the civil court has ruled on it and, therefore, to permit the Sub Divisional
Magistrate as Delegatee of the Authorized Controller to publish election programme, would amount to
elections being rendered a farce.

At this stage, I may also draw distinction between the Authorized Controller appointed under the
Act of 1973 and the Authorized Controller appointed in respect of educational institutions recognized under
the provisions of the U.P. Intermediate Education Act, 1921. Section 16-C of the Act of 1921 provides for
framing of a scheme of administration to manage an institution. Section 16-D provides that such scheme
shall not be inconsistent with Third Schedule, which provides for procedure for constituting the Committee
of Management as per scheme of administration by holding periodical elections. The Committee of
Management of the institution is a distinct body. The scheme of administration also contains a provision
that in case elections are not held within time, the Authorized Controller shall be appointed, who shall get
the elections held to constitute the Committee of Management of the institution.

There is a distinction between an educational institution recognized under the Act of 1921, as well
as an educational institution affiliated to an University, incorporated under the Act of 1973. In respect of
the educational institution recognized under the Act of 1921, specific power vests by virtue of scheme of
administration in the Authorized Controller to conduct elections, and that is why directions are issued by
writ court to the Authorized Controller to hold election. The situation is different in respect of an
educational institution affiliated to an University, incorporated under the Act of 1973. The Act of 1973 does
not provide for a separate scheme of administration nor any such scheme has been placed on record
conferring jurisdiction upon the Authorized Controller to hold elections of society for managing the
educational institution. (WORDS 506)

Therefore, no provision exists permitting the Authorized Controller to conduct elections to

constitute Managing Committee. The body charged with the responsibility to manage such educational
institution is the society, registered under the Act of 1860, and the exclusive provision to regulate it, so far
as its valid constitution is concerned, vests in the authority constituted under the Act of 1860. The
university incorporated under the Act of 1973 can always depute any officer or the Authorized Controller to
remain present at the time of holding of election, so as to be satisfied about validity of election for the
purposes of exercising jurisdiction under section 2(13) of the Act of 1973, but there exists no jurisdiction
with the Authorized Controller to conduct election of society to the exclusion of jurisdiction of Registrar
under section 25(2) of the Act of 1860.
 EXERCISE NO. 53

Dr. L.P. Mishra submits that the said report was prepared without the participation of the
petitioner-company and without giving any opportunity to give a reply to the allegations that now form the
basis of the passing of the impugned order. He further submits that the calculation as reflected in the
impugned communication dated 25.7.2016 particularly in Clause 9 thereof about the act of the petitioner-
company being involved in overdrawing with a criminal intent of defalcation, was never intimated to the
petitioner to explain the same and even otherwise the entire calculation is erroneous. Hence, the
conclusion drawn being patently incorrect the action is arbitrary.

Dr. Misra then urged that there was ample material on record to demonstrate that the entire
delay had been caused on account of the unavailability of the environmental clearance that was the
obligation of the State Highways Authority and which admittedly took more than a year to communicate.
The aforesaid delay in the execution of the project and otherwise all the hindrances were totally
attributable to the respondent No.2 that have been completely ignored while passing the impugned order
and therefore, the decision making process is clearly vitiated being arbitrary and whimsical. He has
further submitted that these facts about the breach on the part of the respondent No.2 were not even
brought to the notice of the High Court nor was the petitioner a party in Public Interest Litigation No.15147
of 2015 where directions were issued for completion of the project vide judgment dated 21.4.2015. It is
submitted that the information given about the meeting chaired by the Chief Secretary and the resolutions
passed therein, as quoted in the said judgment, were totally incorrect informations giving an impression as
if the petitioner-company had voluntarily without any justification abandoned the project. It is therefore
urged that taking shelter by the respondent No.2 of the aforesaid judgment is totally unjustified and in
such circumstances, in view of the judgments that have been cited at the Bar, the impugned
order/communication dated 25.7.2016 is unsustainable and deserves to be quashed.

Controverting the aforesaid submissions, Sri Vivek Raj Singh has raised a preliminary objection
with regard to the entertaining of the writ petition on the ground that any dispute arising out of the
agreement dated 19.5.2011 has to be resolved as per Article 44 of the terms of agreement initially by
conciliation and on failure of mediation, through arbitration. He further submits that so far as the delay
part at the initial stage of environmental clearance is concerned, the same was suitably compensated by
providing more time to the petitioner-company through a revised memorandum of time-schedule and
therefore, no prejudice was caused on account of any such delay in obtaining environmental clearance. He
further submitted that as a matter of fact, the petitioner-company voluntarily abandoned the project as a
result whereof the entire project was put in jeopardy that gave rise to the filing of a PIL and then
consequential action by the State Highways Authority. (WORDS 496)

It is urged that the Independent Engineer had been assessing the work and on that basis, the
petitioner had been intimated of completing the project within time, but having failed to do so and having
found that the petitioner had overdrawn a huge amount from the consortium of banks, which was in
excess of what had been actually spent, there was no option but to terminate the agreement. He further
submits that there is a provision for substitution of the contractor by negotiations through the consortium
of the funding agency, but that too entails a condition that the amount of funds already withdrawn and
loan taken by the contractor will be taken over as a liability by the substituted company for which no one is
coming forward to undertake the said burden. The offer of the consortium is not supported by any offer of
the petitioner in relation to the introduction of new partners.
 EXERCISE NO. 54

The Hon'ble Single Judge came to the conclusion that since the Director gives approval for
appointing non-teaching staff only on duly created posts and after due process of selection in accordance
with the Act and the "First statutes of the University" which was in fact not given and the writ petitioner
had not been able to controvert the specific averments made in the counter affidavit regarding the
inadmissibility of regularization and payment of salary to him in his rejoinder affidavit. The petitioner was
not entitled to reliefs claimed by him. The Hon'ble Single Judge has observed that undisputedly, the
petitioner-appellant was never appointed against any duly created post by following any statutorily
prescribed selection procedure and therefore was not covered under the definition of "employee" given
under Section 60(A)(iii) of the State University Act and therefore also not entitled for payment of salary
from the State Exchequer under Section 60(E) of the Act. In case the Management had engaged the
petitioner on temporary basis without any post being duly created or without following any prescribed
procedure for selections then the Management alone was responsible for payment of salary.

The petitioner-appellant before us in this appeal has again reiterated the arguments made before
the Hon'ble Single Judge that his case had been considered on merits by the Hon'ble Single Judge in his
earlier writ petition vide judgment and order dated 11.6.2010 and despite there being a specific direction
that in case he was duly qualified and was working continuously then he be regularized with effect from
2.12.2000, the later writ petition stands dismissed. It has been argued that it amounted to review of the
judgment and order dated 11.6.2010 by a co-ordinate bench and also it amounted to review of the order
passed by the earlier Director Higher Education dated 24.11.2010 by the new incumbent on the post vide
his order dated 21.4.2011 which was not permissible under law as review is only applicable in judicial
pronouncements by courts of law and is impermissible to an administrative authority passing an
administrative order in an administrative capacity. The learned standing counsel has reiterated the
arguments made in the counter affidavit and stated that once Hon'ble Single Judge had come to the
conclusion on the basis of documents on record that there was no duly created post on which the
petitioner had been appointed by the Management of the institution by following the prescribed selection
procedure under law, the appointment of the petitioner was illegal and therefore he should not be paid
salary from the State Exchequer. The Hon'ble Single Judge had rightly dismissed the writ petition and
there was no need for interference by us in appeal against the said judgment. Having considered the rival
submissions of the parties we find that there are three issues which need to be decided in this appeal.
Firstly, whether the appointment of the petitioner was merely irregular and not illegal and therefore due to
long continuance in service with effect from 2.12.2000, his engagement should be regularized. (502)

Secondly, whether the judgment and order dated 11.6.2010 passed by the co-ordinate bench in
the earlier writ petition filed by the petitioner had been ignored by the co-ordinate bench, in dismissing the
writ petition of the petitioner and, lastly, whether the Director Higher Education in passing the impugned
order dated 21.4.2011 had reviewed the earlier order passed by the same authority on 24.11.2010 and
whether such review was impermissible as has been argued before us by the counsel for the petitioner-
appellant. With regard to the first issue before us, reference can be made to the judgment rendered in the
case of Secretary, State of Karnataka VS. Uma Devi (2006) 4 SCC 1, wherein a Constitution Bench had
considered the arguments raised on behalf of the dailywage/ contractual/ adhoc/ temporary employees for
regularization on the basis of long continuance , legitimate expectation and right to employment under the
State and the Directive Principles of State policy as given in the Constitution.
 EXERCISE NO. 55

Sri Rama Nand Pandey, the learned Additional Chief Standing Counsel while opposing the said
submissions advanced by Sri Bhanot has contended that the 1985 Rules and more particularly Rule 1(2)
thereof clearly prescribed that they were to come into force "at once". Sri Pandey consequently submits
that the 1985 Rules would be deemed to have come into force on 16 March 1985 itself. According to him,
merely because these Rules dated 16 March 1985 came to be published in the Gazette only on 31 August
1985, this would not have the effect of postponing the date when the rules would be deemed to have come
into force. According to Sri Pandey, the use of the words "at once" in Rule 1(2) unambiguously establishes
the legislative intent of the rules being made enforceable from the date of their making and would
therefore be deemed to have come into force on 16 March 1985 itself. Consequently, he submitted that no
appointment post 16 March 1985 could have been made without following the procedure prescribed
therein.

Before we deal with the primary issue canvased before us, it becomes apposite to note that the
order of termination did not rest upon this issue alone. Admittedly, the Government Order dated 31
October 1984 clearly held the field at the time when the appointment of the appellant came to be made on
18 April 1985. This government order clearly prescribed the year of recruitment to commence from 1 July
and to end on 30 June of the following year. We further note that the Government Order dated 31 October
1984 referred to the Subordinate Offices Clerical Staff (Direct Recruitment) Fourth Amendment Rules,
19796 which appear to have governed the field till they were suspended in their operation by the
Government Order dated 31 October 1984. The suspension of these statutory rules appears to have
continued till the promulgation of the 1985 Rules. During the interregnum the provisions of the
Government Order dated 31 October 1984 appears to have occupied the field and governed the subject of
selection to posts in the subordinate offices in the State of U.P. This government order prescribed the
composition of the District Selection Committee and the procedure to be followed by the said selection
committee while effecting appointments to posts in the subordinate offices of the State. Admittedly the
appointment of the appellant came to be made on 18 April 1985 prior to the commencement of the year of
recruitment as prescribed under these rules. We note that the learned counsel for the appellant was unable
to establish before us that this objection noted in the Government Order dated 23 September 1985 was
either unjustified or unsustainable. In our considered view this objection noticed in the impugned order
dated 23 September 1985, was sufficient to sustain the termination of the temporary engagement of the
appellant. However, since much argument was advanced on the issue of commencement of the 1985
Rules, we proceed to deal with this contention also hereinafter. (WORDS 498)

Reverting to the fact of our cases, we find that the contention advanced on behalf of the appellant
must necessarily fail on the same ground. As has been noted by us in some detail, the only submission
urged was that the rules would be deemed to have come into effect only from 31 August 1985 when they
came to be published in the Official Gazette. It was not the case of the appellant that the 1985 Rules
framed on 16 March 1985 were not published or made known to the concerned or affected parties by any
other reasonable mode of circulation or publication. In fact, the assertion in the writ petition was that
although the rules came into force on 16 March 1985 they were not retrospective and would not apply to
selections made before the said date. Before the learned Single Judge the sole contention advanced was
that since these rules had been published only on 31 August 1985 they would be deemed to have came
into force only from the said date and not from 16 March 1985.
 EXERCISE NO. 56

In addition to above, the learned counsel for the petitioners has submitted that in the present
case there is no disclosure in the impugned order that the petitioners had played fraud or had submitted
forged documents or that they were not otherwise eligible for the post. Therefore, as there was no fault on
the part of the petitioners and the selection process was concluded after due advertisement of the posts,
there was no valid reason for the University or for the State-respondent to treat the appointment of the
petitioners as illegal or void and cancel the same without even providing opportunity of hearing to the
petitioners. It has been submitted on behalf of the petitioners that since the appointments were made in
the Engineering College when at that time it was not a University, the appointment procedure was
governed by Model bye-laws governing the Engineering College. It has been submitted that under the bye-
laws, appointments were to be made upon recommendation of the Selection Committee and the Selection
Committee, for the post of Group-C and Group-D, was to be constituted as per the direction of the
Principal/Director of the Engineering College. It has been submitted that the appointments were made
upon recommendation made by the Selection Committee, which was duly constituted by the then Principal
of the Engineering College, therefore, the appointments were not void or illegal, which could be cancelled
without opportunity of hearing. It has also been submitted that had opportunity of hearing been given to
the petitioners before cancellation of their appointment, they could have satisfied the authorities that the
appointments were legal and valid and that they call for no interference. In the alternative, it was also
submitted on behalf of the petitioners that once their appointment was given effect to and their services
had been confirmed, consequent to the reconstitution of the Engineering College as a University, the
service of the petitioners could have been terminated only after following the procedure prescribed by First
Statutes of the University.

The learned counsel for the respondents submitted that Rules 2002 would be applicable to the
Engineering College because it was a Government funded Engineering College, completely under its
control, though established through a Society and, therefore, its establishment, management and running
was well within the affairs of the State and as such Rules framed under the proviso to Article 309 of the
Constitution of India, in absence of any clause excluding its applicability on the Engineering College, would
be applicable and as such the appointments made without following the prescribed procedure were illegal
and void. The learned counsel for the respondent University however could not dispute that the impugned
order passed by the Registrar of the University as also the resolution concerned of the Board of
Management including the impugned letters of the State Government did not specifically cite infraction of
Rules, 2002 in making of appointments in respect of the petitioners though the enquiry report in respect of
B.B. Singh does refer to the same. (WORDS 501)

I have given thoughtful consideration to the rival submissions. From the record and the rival
submissions what is undisputed is that the petitioners were appointed in the year 2009 and, thereafter,
they were confirmed and paid salary and they became employees of the University consequent to the
reconstitution of the Engineering College; and that their appointments have been cancelled without
opportunity of hearing to them. In Mahipal Singh Tomar v. State of Uttar Pradesh and Ors. : (2013) 16
SCC 771, before the Apex Court an issue arose as to whether appointment of a Principal in a College could
be cancelled without giving him opportunity of hearing on the ground that the appointment was void
because it was made by way placement order passed by the Director, even though the vacancy in the
College concerned was not advertised.
 EXERCISE NO. 57

The litigation has a chequered history. The respondent no. 5 had earlier been proceeded against
and the Principal of the institution had taken action and had not allowed the respondent no. 5 to work in
the institution as a result whereof the District Inspector of Schools passed an order on 11.2.2003 calling
upon the Principal of the institution to allow the respondent no. 5 to join and also to pay him salary from
the date he joined. The respondent no. 5 had not received his salary in spite of this order dated 11.2.2003
and consequently he filed Writ Petition No. 6193 of 2004 that was disposed off on 10.3.2006 holding that
the respondent no. 5 was nowhere at fault and, therefore, the order and direction by the District Inspector
of Schools ought to be implemented. The writ petition filed by the respondent no. 5 was allowed with a
direction that the respondent no. 5 shall be allowed to join the institution and perform his duties and
receive regular salary including arrears thereof. It was, however, observed that in the event there was any
charge of unauthorized absence or indiscipline it was open to the authority to take any action permissible
according to law.

When the respondent no. 5 did not receive the benefits of the said judgment he filed contempt
application being Contempt Application No. 2190 of 2006. During the pendency of contempt application an
affidavit was filed stating that the direction that was issued for compliance has been obeyed and salary has
been paid to the respondent no. 5 from January 1996 to March 2006. It was, however, indicated therein
that since an opportunity had been granted to take action against the respondent no. 5, the Principal of
the institution who is the appointing authority in terms of the regulations framed under the U.P.
Intermediate Education Act, 1921 sent a communication to the District Inspector of Schools terminating
the services of the respondent no. 5 on account of unauthorized absence. This communication dated
15.4.2006 was treated to be a termination order. The District Inspector of Schools is stated to have
approved the same on 11.7.2006. The respondent no. 5 took a plea that he was not aware of any such
intervening proceedings and on coming to know of the same on 23.8.2012 after the contempt application
was disposed off, he filed Writ Petition No. 5564 of 2012 that has given rise to the present appeal. A
prayer has been made in the writ petition for the quashing of the said termination order and approval
order of the District Inspector of Schools. It is evident that no interim order was passed in the writ petition
at the stage of admission. It is thereafter that the impugned interim order dated 23.3.2017 has been
passed, after the case was heard on 7.3.2017 and the matter was again fixed for 27.3.2012. It is informed
at the Bar that no orders were passed and the case has been adjourned. (WORDS 495)

Learned counsel for the appellant Sri Jaiswal submits that once the order of termination and
approval was under challenge, then in that event, firstly the termination order having not been assailed
before the appropriate appellate forum that is the Committee of Management, the approval given by the
District Inspector of Schools was invalid. Consequently the writ petition could not be entertained when it
was filed in 2012 assailing the order of 2006 at such a belated stage. Without setting aside the order of
2006, the compulsion under the impugned order to pass orders and to pay salary was unjustified. Thirdly it
is submitted that the learned Single Judge could have very conveniently disposed off the entire matter
itself without passing any interim directions compelling the appellant to extend the benefits to the
respondent no. 5.
 EXERCISE NO. 58

The State has preferred this appeal questioning the correctness of the judgment dated
01.02.2016 on the ground that the respondent-petitioners were not entitled to be considered for
regularisation inasmuch as they had not been working during the period as required under The Uttar
Pradesh Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001. Learned counsel has
invited the attention of the Court that the respondent-petitioners were engaged on 8th of October, 2002
after their services had been dispensed with in September, 1992. Consequently, in terms of the aforesaid
Rules since they were not continuing on the date of the commencement of the 2001 Rules, they cannot
claim any regularization. The learned Single Judge, therefore, has committed an error in extending the
benefit of regularization which otherwise was not permissible in law.

Learned counsel for the respondent-petitioners submits that so far as the continuance of the
answering respondents is concerned, the appellants themselves have admitted that they were engaged up
to September, 1992. It is at that stage when the answering respondents were not allowed to continue that
they filed writ petition no. 464 of 1993 (SS) and an interim order was passed on 13.01.1993. The
answering respondents were therefore entitled to the benefit of the said interim order which was
deliberately not given by the appellants and as such the inaction or disobedience of the appellants cannot
be a ground to deny the right to the answering respondents to claim continuance in service. It is, further,
submitted that the writ petition filed by the answering respondents was ultimately allowed on 31st of
August, 1999, whereafter also the appellants in stead of allowing the respondent-petitioners to continue,
were contesting the said position and ultimately, allowed the respondent-petitioners to join in the year,
2002. Thus, there was an interim order and even after the final judgment, there was no occasion for the
appellants to have resisted the continuance of the respondent-petitioners, hence, in the aforesaid
background, there cannot be any denial of regularization benefits on the ground that the respondent-
petitioners were not continuing as on the date of the promulgation of 2001 Rules.

We have considered the submissions raised and what we find is that the fact that there was an
interim order dated 13.01.1993 is not denied. The fact that the respondent-petitioners had been engaged
prior to September, 1992, therefore, establishes that their engagement in terms of the regularization Rules
had already been made and remains undisputed. The only question remains about their continuance as on
the date of the promulgation of the Regularization Rules. In this regard, suffice it to say that the
respondent-petitioners had been granted an interim order and not only this, they had succeeded in the writ
petition that was allowed on 31.08.1999. Thus, in law, they were all entitled to continue and function and
any attempt on the part of the appellants to dispute their continuance, was therefore against law. (486)

A forceful deliberate attempt to thwart functioning in defiance of the interim order dated
13.01.1993 and the final judgment dated 31.08.1999 would not be of any legal advantage to the
appellants. Such action rather impels us to draw an adverse inference against the appellants that they
deliberately tried to defeat the rights of the respondent-petitioners to continue working. Even otherwise,
no lawful excuse existed after 31.08.1999 for the appellant to prevent the respondent-petitioners from
functioning. The petitioners therefore prior to the enforcement of the 2001 Rules had rights accrued in
their favour under the judgment dated 31.08.1999 that had attained finality. In this background, the
contention raised by the State that the respondent-petitioners were not continuing as on the date of the
promulgation of the Rules, cannot be countenanced. Consequently, no case is made out for interference.
 EXERCISE NO. 59

However, the respondent no. 3 has not verified it and instead merely observed that if the stock
register would have been available at the time of inspection then the stock could have been verified and
now the stock has been shown after manipulation. He has not mentioned in the order that which entry in
the stock register is the result of manipulation. It is admitted fact of the case that the shop of the
petitioner was got opened by the authorities in her absence and justification of her absence is well
founded. There was absolutely no independent witness in the entire episode. Non presence of any
independent witness becomes more important under the facts and circumstances of the case due to
presence of the complainant and his role in the matter with whom the petitioner has enmity and had
lodged the FIR under Section 307/504 IPC and trial is going on. Therefore, recovery of quantity of food
grains shown by the inspecting team is unbelievable. Despite request of the petitioner, the State
authorities have not verified the stock of essential commodities. Consequently, the allegation of lesser
stock found in the alleged inspection can not be accepted.

The third ground and the conclusion drawn by respondent no. 3 in the impugned order dated
31.12.2013 is that the petitioner had black marketed the essential commodities and thus contravened the
terms of agreement. This finding and the conclusion drawn by respondent no. 3 in the impugned order is
wholly baseless and without any evidence on record. There is no finding in the impugned order that any
card holder has made any complaint against the petitioner with regard to non distribution of essential
commodities in the prescribed quantity and at the prescribed rates. The respondent authorities have also
not recorded statements of any card holders or the villagers with respect to non distribution or lesser
distribution of essential commodities by the petitioner from her fair price shop. The petitioner had
submitted monthly distribution certificates evidencing that the essential commodities as received were
distributed as per norms. Genuineness and correctness of the certificates has not been doubted. Thus,
there was absolutely no evidence against the petitioner to indicate that the petitioner has either not
distributed the essential commodities in prescribed quantity to card holders or she charged price over and
above the rates prescribed.

So far as the rejection of the delay condonation application filed in support of restoration
application and the rejection of restoration application of the petitioner by the appellate authority is
concerned, it is relevant to note that the petitioner has sufficiently explained the delay and also shown
sufficient cause for non appearance on 22.05.2015. The appellate authority has merely observed that no
justifiable reason has been shown for delay. However, he completely failed to record that what justifiable
reason has not been shown in the delay condonation application. Thus, the order rejecting the delay
condonation application and the restoration application is without reason and therefore, cannot be
sustained. (WORDS 497)

In view of the aforesaid, the impugned orders dated 31.12.2013 passed by respondent no. 3
cancelling the fair price shop agreement of the petitioner, the order dated 22.05.2015 dismissing the
appeal in default and order dated 22.12.2016 rejecting the delay condonation application and restoration
application are hereby quashed. Since the order dated 31.12.2013 has been quashed by this Court and as
such the appeal of the petitioner also stand allowed.
 EXERCISE NO. 60

The question therefore that has to be answered in this petition is as to whether there was any
valid payment after the award or deposit in accordance with the provisions of Section 31 of the Land
Acquisition Act, 1894 and secondly whether the said payment did amount to a valid tender of the amount
of compensation to the tenure holders or not. It has also to be seen as to whether this payment after 31
years would amount to a payment that would not attract the provisions of Section 24 (2) of the 2013 Act.
In order to attract the provisions of Section 24 (2) of the 2013 Act, the fiction provided for therein of a
deemed lapse has to be pressed into service for which the necessary ingredient would be the existence of
a fact which has to be contemplated in order to apply the fiction. Thus, the fact should be presumed to be
in existence as on the date of the enforcement of the 2013 Act in order to invoke the fictional clause as
contained in Section 24 (2) of the 2013 Act.

The question is as to whether what should be the date of payment of compensation in order to
attract the aforesaid fiction. It is here that we find that the provisions of Section 24 (2) of the 2013 Act
require three conditions to be fulfilled, namely, that the award should have been made five years or more
prior to the enforcement of the Act. The aforesaid condition is fulfilled in the present case and the
possession was also taken. The payment has been made in 2011. On a plain reading of the aforesaid
provisions, the fact of payment of compensation did exist as prior to 1st of January, 2014. Thus, the
existence of the said fact eliminates the possibility of invoking the fictional clause as contained in Section
24 (2) of the 2013 Act as the payment had been tendered prior to 1.1.2014. Consequently, if the payment
of compensation has been made prior to 1.1.2014 the same cannot be said to be an invalid payment
unless the payment which has been made falls short of the requisite payment to which the tenure holder
was entitled.

In our considered opinion, if the payment which has been tendered to the petitioners by way of
cheques, which is a literal payment as against the amount calculated under the Award, is short of the
amount which ought to have been paid to the petitioners under the Award, then in that event, the said
payment cannot be said to be the full and complete payment as contemplated under the Award. If that be
the situation, then the petitioners can claim the benefit of Section 24 (2) of the 2013 Act provided there is
an evidence to the effect that the payment made to the petitioners falls short of the payment to which the
petitioners were entitled under the Award. (WORDS 490)

In this view of the matter, the leeway period of five years as was urged on behalf of the
petitioners would not come to the advantage of the petitioners because the said period of five years is to
be calculated only for the purpose of computing the period of the date of Award five years prior to
1.1.2014. The said leeway period is not in relation to or is contemplated to apply for possession and
payment of compensation that can be prior to 1.1.2014. If the payment or the possession has not taken
place on or before 1.1.2014, then the provisions of Section 24 (2) will be clearly attracted provided the
Award had been made five years prior to 1.1.2014. Consequently, the decision of the Apex Court in the
case of Delhi Development Authority v. Reena Suri (supra) clearly puts a final seal on the matter as per
the ratio of paragraph - 3 of the aforesaid decision which applies on the facts of the present case as it
stands today. Accordingly, the proceedings cannot lapse as the fiction of deemed lapse cannot be attracted
as the possession has been taken and payment has been made prior to 1.1.2014.
 EXERCISE NO. 61

It appears that during the investigation the appellants were arrested and it is alleged that from
their possession some stolen articles recovered. It then appears that test identification parade held in the
premises of District Jail, Bahraich, where appellants were identified by the witnesses including PW-1, 2, 3
and 4. It further appears that stolen articles, recovered from the possession of appellants, were also put
on test identification parade and the same were identified by the witnesses. The police, after completing
the investigation, submitted charge-sheet against all the appellants under Sections 396 and 412 of the
Indian Penal Code. On the basis of aforesaid charge-sheet learned Magistrate took cognizance of the
offence and later on committed the case to the court of sessions as the offence under Section 396 and 412
of the IPC are exclusively triable by the court of Sessions. Thereafter, the charges framed against the
appellants under Sections 396 and 412 of the IPC and the same were explained to them to which they
pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined altogether seven
witnesses, out of whom PW-1 and PW-2 are witnesses of fact and they claimed that they identified the
appellants during the test identification parade held in jail premises as they were the persons concerned
who committed dacoity. PW-5 is the Executive Magistrate in whose supervision test identification parade
held in the District Jail, Bahraich. PW-6 is the Investigating Officer, whereas PW-7 is the police constable
who took the appellants to the Bahraich jail after their remand. The prosecution also brought on the record
various documentary evidence.

It appears that after considering the arguments and evidences on the record the learned court
concluded that the appellants had committed dacoity in the house of informant and other villagers in which
one person has died, therefore, appellants committed the offence under Section 396 of the IPC, thus
convicted the appellants for the said offence. However, since the appellants have been convicted under
Section 396 of the IPC, therefore, learned court below not convicted them under Section 412 of the IPC.
The learned trial court sentenced all the appellants to undergo imprisonment for life. Against the aforesaid
judgment of conviction and order of sentence, present appeal filed. While assailing the impugned judgment
learned counsels appearing for the appellants had submitted that admittedly the appellants were arrested
on 04.01.1979 and they have been put on test identification parade on 20.03.1979 i.e. after more than
two and half months. The prosecution had not given any explanation regarding the said delay. Thus the
delay in holding the test identification parade cast a serious doubt on the claim of the witnesses that after
lapse of so many days they were remembering the facial expression of the appellants. It is submitted that
from perusal of evidence of PW-1 to PW-4, it appears that at the time of occurrence they were standing
outside the house of PW-1, whereas the occurrence took place inside the house. (WORDS 496)

Under the said circumstances, there is no occasion for the witnesses to identify the appellants. It
is further submitted that one of the witness namely PW-3 categorically stated that due to the night all the
dacoits were looking alike. Under the said circumstance, it is very difficult for the witnesses to identify the
appellants after the lapse of about two and half months. It is submitted that one of the witness namely
PW-4 had stated that all the witnesses identified the dacoits while they were coming out from the house of
Kalloo (PW-1) and fleeing away from there. Accordingly, it is submitted that the witnesses have not much
time to recognize the dacoits, who were 13 to 14 in numbers. It is further submitted that from perusal of
the test identification chart, it appears that on the face of all the participants of test identification parade
paper pieces pasted with a view to cover the moles and other marks found on the face of appellants. It is
submitted that in such condition the identification of real culprits is not possible.
 EXERCISE NO. 62

From the reliefs as claimed, it is apparent that the challenge raised was to the allotments made in
favour of the fifth and sixth respondents only. We are constrained to note this on account of the fact that
Sri Oza had in the course of his oral submissions contended that not just the allotments made in favour of
the fifth and sixth respondents but also various other allotments had been made in violation of the policy
of the Corporation and in any view of the matter in breach of the mandate of Article 14. However, no
details of these alleged allotments were disclosed either in the writ petition or in the subsequent rejoinder
affidavit which was filed on behalf of the petitioner. It is in the above backdrop that we now proceed to
note the rival contentions.

The petitioner sought the issuance of directions commanding the Corporation to produce the
relevant records in respect of the transactions of which mention stood made in the writ petition. In the writ
petition, it was averred that the allotments of large tracts of land was being made in utter violation of the
principles which must inform a decision of an instrumentality of the State which proceeds to distribute.
These allegations as noted above, were primarily made in respect of the allotments made in favour of the
fifth and sixth respondents. It was averred that initially the allotment was made in favour of the fifth
respondent on 29 August 2016 without any advertisement having been issued by the Corporation inviting
offers from interested parties. In the writ petition, the categorical case set up was that the allotment came
to be made in favour of the fifth and sixth respondents directly on an application made by the concerned
respondents and despite various objections having been raised to the proposed allotment by the Joint
Managing Director. The allotment in favour of the fifth respondent was further sought to be brought under
cloud upon the assertion that the initial allotment made in its favour was subsequently surrendered and a
fresh allotment made in its favour on 28 September 2016. Insofar as the sixth respondent is concerned, it
was alleged that the allotment made in its favour on 22 December 2016 was not preceded by the issuance
of any advertisement and the allotment itself came to be finalised by the second respondent bypassing the
Joint Managing Director. A further reading of paragraph 25 onwards of the writ petition carry the allegation
of the petitioner against various acts of misfeasance committed by the second respondent. It is alleged in
the writ petition that the second respondent was favouring one Anil Verma and that he was indulging in
acts which were likely to cause pecuniary loss to the Corporation. The allegations as contained in the writ
petition thereafter swayed towards the working and conduct of certain other officers and employees of the
Corporation, the transfers being made by the second respondent. (491)

Put in a nutshell, the thrust of the allegations was that the affairs of the Corporation were being
mismanaged and the second respondent at the helm of its affairs was indulging in acts of nepotism and
corruption. Although we have noticed the various allegations levelled in the writ petition in brief, it needs
mention at this stage itself that the oral submissions advanced on behalf of the petitioner before us
centered and revolved around and upon the allotments made in favour of the fifth and sixth respondents
only. Reiterating the allegations levelled in the writ petition, it was asserted by Sri Oza that no policy which
countenanced the submission and entertainment of applications directly by interested parties could be
upheld by the Court. It was his submission that the issuance of an advertisement or an invitation of offers
was clearly mandated by Article 14 and since the Corporation had failed to adopt the said procedure, the
allotments made in favour of the private respondents were liable to be faulted on this ground alone.
 EXERCISE NO. 63

It has been pointed out that the appellant-Institute is one of the premier Institute of the
Technology in the country and it has Senate around to 200 members, who are experts in various fields and
this Senate included various distinguished and honoured academicians in their fields. The Senate being the
highest body in the Institute was empowered under the Ordinance of IIT, Kanpur to take decision
regarding the academic programmes of the students in the Institute and it had while approving the finding
of the ICC and the SSAC taken a decision to terminate the academic programme of the petitioner-
respondent. In the facts and circumstances of the case, since the finding of the Inquiry Committee have
not been disturbed and have been affirmed by the Hon'ble Single Judge, interfering in the punishment
imposed by such a high authority of reputed academicians should not have been made lightly and the
reasons given by the Hon'ble Single Judge for interfering in the decision taken by the Senate is that the
Hon'ble Single Judge has found that the procedure for arriving at the impugned decision, is not immune
from challenge made on account of violation of principles of natural justice.

In the judgment impugned, it has been observed that the complaint dated 27th November, 2015
on the basis of which inquiry was instituted against respondent No. 1 had not been placed on record and
that its contents ought to have been disclosed to the petitioner and this complaint has not even been
placed before the Court. This complaint according to Hon'ble Single Judge assumed significance inasmuch
as under section 9 of the Act of 2013, there is a limitation permitting taking of cognizance within a period
of three months from the date of last incident, where series of incidents are alleged. It has been observed
by the Hon'ble Single Judge that only complaint, which has been brought on record is 5th of January,
2016, although the last incident took place in September, 2015. This complaint according to Hon'ble Single
Judge was beyond the period of three months of the last alleged incident and if the said complaint was to
be relied upon by the Committee, reasons had to be recorded in writing for extending the period of
limitation, which was not given. It has been pointed out by the learned counsel for the appellant-Institute
that Institute had remained closed for winter vacations and the complaint dated 5th January, 2015 was
filed detailing the instances from January, 2014 onwards till September, 2015 and it was not necessary for
the appellant-Institute to bring the said complaint dated 27th November, 2015 on record as the complaint
dated 27th November, 2015 was not made part of the regular fact finding inquiry, but was only the basis
for the preliminary inquiry held by the ICC to ascertain whether prima facie any case was made out for
conducting regular detailed inquiry. (WORDS 482)

After having gone through the Act of 2013 and the Rule framed thereunder and the Hand-Book
issued by the Ministry of Women and Child Development, this Court is of the view that it is not necessary
that a copy of the complaint detailing instances of harassment be brought on record. It was sufficient that
respondent No. 1 was given a copy of the detailed complaint made on 5th January, 2016 and this indeed
was given to respondent as is evident from the reply that has been submitted by the respondent No. 1 to
the same, which has been filed by the respondent-petitioner himself as annexure-3 at page 45 to 59 of the
writ petition. The Rules of natural justice on which the Hon'ble Single Judge has laid great emphasis in the
judgment impugned are not inflexible and immutable principles that have to be mandatorily followed in
each case. In Union of India and another vs Tulsiram Patel, 1985 (3) Supreme Court Cases 398, the
Supreme Court has observed as follows:
 EXERCISE NO. 64

Sri Jain, learned counsel for the petitioner referring to the averments taken in the writ petition has
submitted that Sri Gulam Farid had only submitted his resignation on 30 July 1979. On the same date itself
Mr. Gulam Farid is stated to have submitted a letter holding out that his resignation be not acted upon till
15 January 1981. He submits that the resignation was ultimately accepted by the management on 27
January 1981. Consequent to Sri Gulam Farid not exercising any other option prior to 15 January 1981, it
is his submission that the absorption of the petitioner came into effect with the direction issued by the
District Inspector of Schools on 7 January 1985. This order makes specific reference to the provisions of
Section 21-B which had come to be inserted in the 1982 Act initially by way of U.P. Ordinance No. 13 of
1985 which stood replaced by the Amending Act itself. Sri Jain submits that no facts were concealed from
the District Inspector of Schools. In any view of the matter, it is his submission that no reasons have been
assigned to establish the charge of concealment of a material fact by the management. Learned Additional
Chief Standing Counsel, on the other hand, contends that from the records it appears that the petitioner
was appointed for the first time only on 7 January 1985 and therefore even if the vacancy be treated to
have come into existence on 27 January 1981 when the resignation was accepted, it is clear that no orders
in favour of the petitioner could have been passed by the District Inspector of Schools referable to Section
21-B. The learned Additional Chief Standing Counsel in addition reiterates the objection taken in the
impugned order which rests upon the provisions of Regulation 20 comprised in Chapter III of the
Regulations framed under the 1921 Act.

Having heard learned counsel for parties, this Court finds that the pleadings which have been
taken in the writ petition and which detail the circumstances surrounding the resignation of Farid have not
been traversed by the State. While the order impugned does refer to concealment of fact, what facts were
actually concealed from the District Inspector of Schools and which would have effected the basis of the
order dated 7 January 1985 are not disclosed. Even the affidavit filed by the State-respondents in these
proceedings do not detail the facts which according to the respondents were concealed by the committee
of management. In the absence of any effective traverse, the Court must necessarily proceed on the
pleadings taken in the writ petition. It is therefore clear and apparent that the resignation of Mr. Gulam
Farid was accepted by the management only on 27 January 1981. The vacancy therefore could not
possibly be said to have come into existence in 1979. It is not the case of the respondent that the letter of
resignation submitted by Sri Farid in 1979 came into effect immediately. (494)

Insofar as the order of the District Inspector of Schools dated 7 January 1983 is concerned, a bare
reading of the said order clearly establishes that it is not an order of appointment but an order of
absorption made with reference to Section 21B of the 1982 Act. This order of absorption presupposes and
is based upon the petitioner having worked as a reserve pool teacher between the period 9 January 1978
and 19 January 1978. The factum of the petitioner having worked as a reserve pool teacher during these
terminal dates is also not disputed by the respondents. Consequently, this Court is of the considered view
that the provisions of Section 21B stood duly attracted and therefore the order of the District Inspector of
Schools dated 7 January 1985 was not liable to be recalled on the grounds taken in the order impugned.
Insofar as the objection referable to Regulation 20 is concerned, suffice it to state that the same would
have application to a process of recruitment which may have been or could have been set in motion by the
management under ordinary circumstances.
 EXERCISE NO. 65

Applying the ratio of the aforesaid decisions and as again reiterated in the judgment of Brijendra
Bahadur Singh (supra), we are clearly of the opinion that on the facts of the present case, the District
Magistrate had clearly received the notice of the intention to move ''No Confidence Motion' signed by the
requisite number of members on 27.3.2017 for which preparations were made in accordance with the
procedure prescribed. We have also examined the contents of the notice signed and delivered by the
members which also recites the intention to move the ''No Confidence Motion'. Thus, the notice is complete
and composite in nature and also bears the signatures of the members as per the requirement of law. The
date of delivery of the notice can be clearly gathered as 27.3.2017 from the letter of the District Magistrate
dated 28.3.2017 extracted here-in-above.

The absence of the date on the notice signed by the members therefore does not in any way
establish a doubt about the date of the notice as urged by the learned Counsel for the petitioners. To the
contrary, there is clinching material on record to indicate that the notices duly signed by the members
containing the recital of the intention to move the motion had been delivered to the District Magistrate on
27.3.2017 whereafter he also enquired into the allegations of the petitioner on 28.3.2017 itself and then
dispatched the notices on 30.3.2017. The District Magistrate has also looked into the objections raised by
the petitioner on 28.3.2017. The objections were clearly with regard to the notice of the intention of ''No
Confidence Motion' that had been received by the District Magistrate on 27.3.2017 extracted here-in-above
as disclosed in the letter dated 28.3.2017 dispatched to the learned District Judge. The contention on
behalf of the petitioner that on one hand the notice which was delivered contained single signatures,
whereas the same notice is stated to contain two signatures of the Members who have allegedly signed it.
In this regard, the contention of the learned Additional Chief Standing Counsel is clearly to the effect that
when the Members had appeared before the authority they were made to countersign once again to ensure
that they had in fact moved the Motion. The existence of double signatures therefore does not in any way
improve the case of the petitioner. The increase of two of the signatures at Sl. Nos.34 and 35 also does not
in any way vitiate the process, inasmuch as if two more Members had moved to put their signatures on the
said notice and were in existence when the District Magistrate satisfied himself about the correctness of
the same, then no doubt can be expressed about their intention, more so when none of the members who
have signed the notice have come forward before this Court to contest the moving of the Motion or holding
of the meeting on 15.4.2017 and the decision as relied on by the petitioner in the case of Kamla Devi
(supra) therefore would not at all be attracted. (WORDS 506)

As per the decisions on the issue of Form and contents of the notice, the judgments referred to
here-in-above therefore support the stand taken by the respondents as well as the intervenor that there is
a substantial compliance of the dispatch of notice as also the contents of the intention of ''No Confidence
Motion' to be brought about for consideration in the meeting to be held on 15.4.2017. The dispatch of the
notices for holding the meeting had to be made through the Assistant District Election Officer who can be
authorized by the District Magistrate as there is no such bar under the 1962 Rules. Any defects as alleged
are in relation to the directory conditions and not to the mandatory conditions under the procedure
prescribed. Once the fact that the notices were delivered on 27.3.2017 is established as found here-in-
above, then the holding of the meeting on 15.4.2017 is clearly within 30 days of the date of deliverance of
the notices to the District Magistrate. The notice by the District Magistrate to convene the meeting has
been clearly dispatched on 30.3.2017.
 EXERCISE NO. 66

The counter affidavit reveals that the petitioner's husband died on account of cancer. The
respondents have tried to justify the rejection of the petitioner's husband application on the ground that
the petitioner has received terminal benefits amounting to Rs. 21,65,221/- towards provident fund,
gratuity, encashment of the death relief fund etc. The respondents have further tried to justify the
rejection of the petitioner's husband application on the ground that the petitioner's husband could not fulfil
the procedural requirement of the scheme, namely that he was required to fill the form accepting the
report of the Medical Board and accepting the payment of full and final settlement for past and future
liability, including the scheme for reinstatement and other benefits for this purpose. A memorandum of
settlement was also required to be signed by the employee which the petitioner's husband could not do so
as he was in a semi conscious stage and was unable to append his signature. The respondents thus
contended that since the petitioner's husband could not fulfil the procedural requirement under the
scheme, his claim for premature retirement was rejected.

Having heard the learned counsel for the parties and having examined the scheme and the format
of settlement that was required to be signed by employee, we find that the onus was totally upon the
respondents-company to examine the medical report and pass an appropriate order on it. The main criteria
under the scheme is that a conclusion was required to be arrived at as to whether the employee could
continue to do the job, for which he was engaged. This conclusion is to be passed on the basis of the
medical report. The medical report indicates that the petitioner's husband was not fit to continue for the
job in which he was engaged. The medical report has not been disputed by the respondents-company. The
opinion given by the Medical Board in fact has been accepted by the respondent company. The mere fact
that the petitioner's husband was not in a position to sign any further document could not allow the
company to reject his application on a technicality. If the medical condition of the petitioner's husband was
in such a deteriorating condition that he was unable to put his signature then, it was all the more
necessary for the respondent company to discharge him under the premature medical retirement scheme.
The action of the respondents in rejecting the petitioner's husband application, in our opinion appears to
be wholly, arbitrary and violative of Article 14 of the Constitution of India. Even though terminal dues has
been paid to the petitioner, the same was not done out of largesse being granted by the respondent
company. The petitioner's husband was entitled to receive such terminal benefits as a matter of right
under the terms and conditions of service. When the respondent floated the scheme dated 17.11.2003
with regard to premature retirement, an additional incentive was given for payment of ex gratia in addition
to the terminal benefits such as provident fund, gratuity, encashment of leave, etc. (WORDS 508)

We are of the opinion that considering the opinion given by medical Board and the state of health
of the petitioner's husband, the application for premature retirement on medical grounds should have been
allowed. If the respondents had not acted in an arbitrary and cavalier fashion, the petitioner's husband
would also have been entitled to the ex-gratia as per the circular on 17.11.2003. For the reasons stated
aforesaid, we quash the impugned order dated 30th July 2004 by which the petitioner's husband
application for premature retirement was rejected as well as the order dated 23rd March 2005 by which
the petitioner's representation was also rejected. We issue a writ of mandamus commanding the
respondents to treat the petitioner's husband as retired prematurely with effect from 13th July 2004 i.e.
date when the petitioner's husband application was rejected by the respondents and direct the respondent
company to grant the benefits which are payable under the circular of 17.11.2003.
 EXERCISE NO. 67

Similarly, testimony of PW-3 relates to the fact that he saw the deceased along with the accused
persons moving on rickshaw towards Khas Bagh around 6:45 p.m. on 30.10.2002. This testimony if taken
to be true in itself does not establish the fact that all the three persons arrived at Khas Bagh. Therefore,
testimony of aforesaid witnesses of fact on particular aspects is not consistent with the establishment of
the guilt and it gives rise to certain other possibilities. It is admitted position that no one saw the accused
persons either coming into the Khas Bagh or moving out of the Khas Bagh at any relevant point of time
during night before discovery of dead body of Ravi Shukla. Therefore, various links of the chain in this case
necessary for giving consistency to the guilt of the accused persons are found to be missing and due to
which we can unambiguously observe that the prosecution has not been successful in establishing the vital
links in the chain of circumstances which, if established, would have conclusively pointed towards guilt of
the accused that they and they alone are the author and perpetrator of the offence to the exclusion of the
entire world.

It is cardinal principle of criminal jurisprudence that in cases based on circumstantial evidence,

each and every hypothesis of innocence of the accused should be removed and chain of circumstances
should be consistently intertwined so as to point out guilt of the accused conclusively that it was the
accused and accused alone, who committed the crime to the exclusion of others. In this case, analysis
made herein above goes to evince legal truth that the prosecution has failed miserably to establish vital
links of the chain of circumstances and the chain of circumstances is not complete. We have counted upon
various aspects of the case right from point of 'motive' to the factual aspect of 'last seen' theory and
thereafter factum of 'arrest' and recovery made by the Investigating Officer. It appears that the informant
came to know about the dead body of his son, the next morning on 31.10.2002 and thereafter, he lodged
the report, but the manner in which the Investigating Officer allegedly arrested the two accused persons
and effected recovery is highly doubtful and the same cannot be believed to have been truly made under
facts and circumstances of this case. Even the Investigating Officer failed to collect the requisite evidence
that may conclusively point out and establishes guilt of the accused and work against hypothesis of
innocence of the accused. We may sum up that testimony, facts and circumstances open possibility of
commission of murder of Ravi Shukla by other persons as well and every hypothesis of guilt to the
exclusion of others against the accused, has not been established in the chain of circumstances. The trial
court while recording conviction against the appellants failed to properly appreciate the facts and
circumstances of the case and recorded erroneous and illegal finding of conviction, which cannot be
sustained by us, for reasons aforesaid. (WORDS 507)

Consequently, the contention raised by the learned counsel for the appellants holds the ground
firmly, as it has got force. The appeal is allowed and judgment and order of the trial court dated 5.3.2005
passed by Additional Sessions Judge, court no.2, Rampur in Sessions Trial No. 276 of 2003 arising out of
Case Crime No. 582/2002 under Sections 302/34 and 411 IPC is hereby set aside and the accused-
appellants are exonerated of all charges. In this case the appellants are in jail. They be set free forthwith,
if not wanted in connection with any other case after complying with the provisions of Section 437-A
Cr.P.C. Let a copy of this order be certified to the concerned trial court for its intimation and follow up
action.
 EXERCISE NO. 68

The petitioner, who was a Constable in the U.P. Police, was dismissed from service by order dated
28 January 1994 for the reason that he had unauthorisedly remained absent for a long period of 503 days
from 8 May 1992. The appeal filed by the petitioner was rejected by order dated 27 July 1994 and the
Claim Petition No. 1287 of 1995 filed by the petitioner before the U.P. Public Services Tribunal1, was also
dismissed by order dated 1 December 2009. This petition has been filed to assail the aforesaid orders.

The facts reveal that while the petitioner was posted as a Constable in Saharanpur, he was
directed to take part in the Refresher Course in the Police Training Centre at Moradabad. He was relieved
on 3 May 1992 by the Authority to undertake the Course. The petitioner, however, did not report at the
Training Centre and went to Deoband where he was admitted in a Government Hospital. It is stated that
he was asked to take rest for 2 days. The petitioner thereafter proceeded to the Training Centre where
again fell ill and was admitted to a Government Hospital at Muzaffarnagar where he was advised to take
rest for two days. It is stated that the petitioner thereafter went to the Police Training Centre at
Moradabad on 8 May 1992 but he was not permitted to join the Refresher Course as he reached late. The
petitioner claims that while returning from Moradabad he had some kidney problem and, therefore, could
join his duties at Saharanpur and he went to his residence at Muzaffarnagar and stayed there for
treatment of his disease.

As the petitioner unauthorizedly remained absent for a long period of 503 days without leave or
permission, a charge-sheet dated 1 June 1993 was issued to the petitioner. The inquiry was conducted
against the petitioner under the provisions of U.P. Police Regulations, 1861 and an inquiry report dated 5
January 1994 was submitted. The Inquiry Officer found as a fact that the petitioner had remained
unauthorizedly absent for a long period of 503 days. The medical reports of a private doctor were not
believed. The Enquiry Officer noted that the petitioner did not get himself examined in a District Hospital
as was the requirement under the Regulations. The petitioner was provided an opportunity to submit his
objections to the inquiry report which opportunity was availed. Subsequently a detailed order dated 20
January 1994 was passed by the Senior Superintendent of Police, Saharanpur for dismissal of the
petitioner from service for having remained unauthorizedly absent for a long period of 503 days. The
appeal filed by the petitioner was dismissed and the Tribunal also dismissed the claim petition filed by the
petitioner. The only submission advanced by learned counsel for the petitioner at the time of hearing of the
petition is that the punishment of dismissal from service imposed upon the petitioner is disproportionate to
the charge that was levelled against the petitioner. (WORDS 494)

Ms. Meenakshi Singh, learned Standing Counsel appearing for the respondents has, however,
submitted that the punishment of dismissal imposed upon a Constable for having unauthorisedly remained
absent for a long period of 503 days cannot be said to be disproportionate. Learned Standing Counsel
placed before the Court the judgment of the Supreme Court in State of U.P. & others Vs. Ashok Kumar
Singh and another, (2017) 2 SCC and has submitted that the scope of judicial review of punishment
awarded by the Disciplinary Authority is extremely limited and the Courts would interfere with the
quantum of punishment only when the punishment is found to be shockingly or strikingly disproportionate
to gravity of misconduct.
 EXERCISE NO. 69

The contention of the learned counsel for the appellant is that the selections are governed under
the provisions of the government order dated 23.11.2007 read with the Government order dated
29.04.2011. According to the terms and conditions of the said Government orders, a select list has to be
prepared by the Administrative Committee of the Gram Panchayat. The list of selected candidates has to
be drawn up in accordance with the eligibility, provided they fulfill the eligibility conditions, according to
the merit of the candidates. The contention is that Clauses 5 and 6 of the Government order dated
23.11.2007 makes a provision that if the candidate selected at serial No.1 shows unwillingness to join the
post in spite of being selected, then the candidate next in merit shall be selected. The selection is by the
Administrative Committee. The other provisions contained in clause 6 are that if the selected candidate is
not possessed of the eligibility as prescribed, then in that event the Gram Panchayat will proceed for
selecting another candidate.

Sri Verma submits that a perusal of these clauses leaves no room for doubt that the selections
were held and that the candidate selected at serial No.1 had willingly not joined on the post and the
candidate at serial No.2 has to be offered the said employment. It is therefore, urged that the conclusion
drawn by the District Magistrate, Barabanki in the order dated 31.10.2013 are not in consonance with the
aforesaid clause and even otherwise, the elimination of the appellant is arbitrary that violates of Article 14
of the Constitution. It is further contended that the selection had not been cancelled and it was only the
unwillingness of the selected candidate that had led to this situation whereafter, the appellant had filed this
writ petition before this Court directing the District Magistrate to consider his claim in accordance with law.
It is thereafter, that the order dated 31.10.2013 was passed observing that since the process of fresh
selection had been decided to be undertaken, and since there was no waiting list provided for under the
relevant Government orders, therefore, there was no occasion to consider the claim of the appellant to
offer him employment as a Gram Rojgar Sewak.

A challenge being raised to the same in the writ petition giving rise to the present appeal has also
failed, where the learned Single Judge has accepted the said reasoning and has in addition thereto, relying
upon the judgment of the Apex Court, has held that since the engagement of a Gram Rojgar Sewak is on
contract basis and only an honorarium is offered, the same does not amount to creation of a post under
the Government and being an engagement under the scheme, the appellant does not have any right to
claim his engagement as there was no violation of any statutory provision. Thus, the direction of the
District Magistrate, Barabanki to hold fresh selections has been upheld. (WORDS 490)

Sri Verma submitted that the learned Single Judge has committed an error in proceeding to
interpret the Government order and upholding the impugned order of the District Magistrate dated
31.10.2013, and further that even if it is apparently an appointment on honorarium basis, the provisions of
Article 14 of the Constitution of India are clearly attracted that have been overlooked. Hence the impugned
judgment and the order of the District Magistrate deserve to be set aside. He has also relied on the
unreported judgment in the case of Smt. Shahida Parveen. Vs. State of U.P. and 4 others (Special Appeal
Defective No.383 of 2014), decided on 16.04.2014 to substantiate his arguments. Learned standing
counsel on the other hand submits that the appellant does not have any vested right to claim selection or
appointment inasmuch as, the selection does not give any right to appointment. He further submits that
this is not statutory appointment against salary and being a contractual appointment under a Government
scheme, learned Single Judge has not committed any error in refusing to interfere in the order.
 EXERCISE NO. 70

Contradicting the arguments raised by learned Senior Counsel appearing for the petitioners, Shri
Santosh Kumar Mishra, learned counsel for the respondents-Food Corporation of India submits that the
petitioners were never employees of the FCI. They were engaged through a contractor but when that
system was abolished, large number of persons got unemployed and therefore, various Unions approached
the establishment with regard to their re-engagement as there was still work available with the
Corporation. Various unions presented various lists of workers but it was decided that only such workers,
who were earlier engaged on contract basis, their claims could be considered and therefore, an endeavour
was made to identify such workers, who were earlier working with the Corporation at Kosi Kala, District-
Mathura, who were engaged by a contractor, to be brought under direct payment system. The lists were
produced and no agreement could be reached. Ultimately, the FCI drew a list of workers as provided by
the outgoing contractor. This list was challenged by the Unions by filing of writ petition, as has been
mentioned above, and the learned Single Judge thought it proper to refer the matter to Assistant Labour
Commissioner to draw up a proper list after investigation and considering the claim of the all concerned.
The Assistant Labour Commissioner after thorough inquiry and considering all the claims drew up the list of
166 persons. This list was challenged by the FCI as also, by the various Unions before the learned Single
Judge and thereafter, in Special Appeals.

It is submitted that after the detailed enquiry once it was identified that only 166 workers are
genuine workers and all other workers, who claimed through Unions to be employed with the FCI, were
given show cause notice in compliance of the principles of natural justice and after consideration of their
reply, their services have been terminated. It is submitted that none of the employees, who were given
show cause notices could make out sustainable claim of their employment with the FCI. On the contrary,
only thing that was asserted was that FCI cannot highlight its own wrong. No positive material was
produced that they were genuine and proper employee, who were earlier engaged by the contractor and
worked for the FCI. It is submitted that through the litigation at various stages since 1998, no individual
workers had ever approached the FCI or the Courts. The matter was only contested through trade Unions
and various other Unions and therefore, it is submitted that the claim of the petitioners that they were not
aware of any of these proceedings, which continued since 1994, is neither believable nor acceptable. Their
cause were being espoused by various Unions. Now once a final decision has been taken and all the other
Unions and parties contesting the list prepared by the Assistant Labour Commissioner and failed to get it
quashed by any Court, at this stage, now it cannot take shelter of the fact that they were not the party in
the aforesaid proceedings when the writ petition was initially decided. (WORDS 505)

In the writ petition No.22804 of 1998 by order dated 9.9.1998 it gave liberty to all concerned,
who had any claim to appear before the Assistant Labour Commissioner including the Labour Unions as
well as the FCI. The Labour Commissioner considered the claims and after enquiry has now arrived at a list
of 166 members to hold that these are genuine workers and the others have been held to be not genuine.
It is submitted that the contention of the learned Senior Counsel that the petitioners were not given any
opportunity is not correct as to each individual, show cause notices were given and it is also not correct to
suggest that no enquiry was conducted as it is clear from the various orders in the writ petitions before the
learned Single Judge and the Division Bench, the Assistant Labour Commissioner was required to enquire
into the matter and produce a list of genuine workers and after much deliberation the Assistant Labour
Commissioner (Central) has finally been able to arrive at a conclusion by producing a list of 166 persons.
 EXERCISE NO. 71

A conjoint reading of the aforesaid two clauses leaves no room of doubt that the Administrative
Committee of the Gram Panchayat has been entrusted with the task preparing the merit of the candidates
applying for appointment as Gram Rojgar Sewak to be appointed on contractual basis. The select list has
to be prepared on the basis of the marks obtained by the candidates in the descending order. The
candidate obtaining highest marks has to be offered appointment for engagement from the list of the
selected candidates and the name of the selected candidate has to be forwarded seeking approval for the
same from the Gram Panchayat. In the event, the candidate obtaining highest marks shows his or her
unwillingness to join the post, then the next candidate has to be offered appointment.

In the instant case, this procedure of obtaining the approval of Gram Panchayat and joining of the
selected candidate Km. Juli took almost two years. Km. Juli the selected candidate at serial No.1 was
admittedly employed in a Madarsa Institution from where she was also being paid an honorarium.
Accordingly, she showed her unwillingness to join and ultimately dispatched a letter informing the Gram
Panchayat to the said effect. Learned counsel for the appellant submits that this unwillingness and refusal
to join the post was a clear inability of the candidate at serial No.1 for engagement due to her engagement
in some other employment. Thus this unwillingness cannot be termed to be an ineligibility of the candidate
and in such circumstances, no fresh selections were required to be held, and the offer had to be made to
the appellant who was at serial No.2 of the select list. For this, Sri Verma has submitted that if it was a
case of ineligibility, then the option of clause 6 was open for holding the selection but in the instant case,
there was no ineligibility of the candidate and rather it was her unwillingness to join the post which
resulted in the vacancy and as such the placement of the appellant serial No.2 could not have been
ignored.

The aforesaid argument of Sri Verma appears to be correct inasmuch as a conjoint reading of
Clauses 5 and 6 clearly establishes that it is in the event of unwillingness of the selected candidate that
offer is to be made to the second in the list. It is only where the candidate is ineligible when no option is
left for either offering employment to any other candidate, and the only option is left to hold a fresh
selection. In the instant case, Km. Juli who was at serial No.1, did not accept the offer on account of her
engagement elsewhere. This did not amount to any ineligibility on her part. Consequently, the offer could
have been made to the appellant who was at the second place. However, what happened in the case, this
took a span of almost two years and even thereafter, the writ petition was ultimately decided in November,
2016 which was almost six years of the date of selection in the year 2010. (WORDS 514)

The contractual engagement is for one year and extendable for another period of two years. In
such a situation, we are not inclined to interfere with the impugned judgment or the order without
approving of the reasons contained in the order of the District Magistrate dated 31.10.2013. Sri Verma
submits that on account of the changed circumstances and the alteration of the status of the Gram
Pradhan of the Village, the appellant will be loosing the opportunity to apply again for the said post in case
fresh selections are held. In fact the candidate to be engaged now has to be a person of the caste of the
Village Pradhan. This being a provision of law, the situation cannot be altered by us through a judicial
intervention so as to extend any benefit to the appellant. In such a situation, even otherwise, the
employment cannot be offered in contravention to the aforesaid policy of the Government. The appeal
therefore cannot be entertained. The same is accordingly dismissed.
 EXERCISE NO. 72

Further, from a plain reading of Rule 9 of the Rules, it is clear that in the first place under Rule 9
(1) the petitioner is entitled to claim "all amounts representing the value of service and labour and profit
thereon" by way of deduction. The deduction is thus allowable in entirety subject of course to its due
verification without any limit or restriction to a percentage or proportion to the amount received or
receivable against the work contracts in respect of which such a deduction is claimed. However, another
method for computation of such deduction is provided under Rule 9 (3) of the rules. It is subject in its
application to three alternate pre-conditions, one of which must be found attracted before the method of
computation of deduction of value of labour and service and profit thereon may be applied. Read together,
normally, under Rule 9 (1) deduction on account of value of labour and service and profit thereon is to be
allowed at actual figures claimed by any assessee. However, a rule of exception is contained in Rule 9 (3)
which comes into play either if (i) the assessee does not show separately the value of labour and service
and amount of profit accrued on such labour and service or (ii) the accounts maintained by the assessee
are not worthy of credence or (iii) if the assessee does not maintain any accounts. Plainly, Rule 9 (1) and
Rule 9 (3) cannot and they do not apply or operate simultaneously, rather, Rule 9 (3) applies only if
application of Rule 9 (1) is excluded on account of presence of any of the three preconditions mentioned in
Rule 9 (3).

Here, in this case no information, material or fact or reason has been recorded to establish the
satisfaction of any of the three pre-conditions of the applicability in Rule 9 (3) inasmuch as it has not been
alleged by the Assessing Authority in the reason to believe recorded by him that the petitioner had not
maintained its books of account or that they were not worthy of credence. On the contrary, while the
reason to believe recorded by the petitioner's assessing authority is absolutely silent on this issue, in the
original assessment order dated 30.04.2013 it is had been categorically recorded by the petitioner's
Assessing Authority that the books of account had been maintained by the assessee and the same had
been examined by him whereafter, a finding was recorded by him as to figures of sale of steel and cement.
In addition thereto the Assessing Authority while making the original assessment order had also examined
the contract documents specifically in respect of payments to be made therein and observed that
payments for labour charges and supplies were provided to be made separately. Thus, the third alternate
condition for application of Rule 9 (3) of the Rules clearly and admittedly does not exist i.e. it cannot be
alleged that the petitioner had not maintained the books of account. (WORDS 498)

This brings us to the stand taken by the respondent state authorities in their counter affidavit in
paragraph nos. 6,7,14 and 16 that in the original assessment proceedings the petitioner had not produced
the copy of the whole contract and further it had produced the books of account for verification and the
same were not examined by the Assessing Authority while framing the assessment order and therefore
there are no books of account. While it is true that the Court had while entertaining this writ petition
directed the state to file a counter affidavit stating whether the petitioner had produced its books of
account etc. and state has pleaded in the negative, we find it difficult to accept the correctness of that
averment made in the counter affidavit in face of specific findings and observations recorded in the original
assessment order itself, as discussed above, to the effect that the petitioner had produced contract
documents and also its books of accounts.
 EXERCISE NO. 73

A careful analysis of Sub-section (3) would make it clear that the first part which requires the
District Magistrate to convene meeting of the Board for considering the motion of no-confidence against
the President is mandatory. The District Magistrate is required to perform a public duty in convening a
meeting of the Board for consideration of the motion at the office of the Board on the date and time as
fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35
days from the date of presentation of the motion to him. The District Magistrate is further enjoined to
perform a public duty of selling notice of the meeting to the members; this again is a mandatory
requirement of law which must be strictly complied with. The second part of the sub-section lays down the
manner required to be followed in sending notices to the members. It lays down that notice of the meeting
shall be sent by registered post to every member of the Board at his place of residence. The essence of
this provision is to give information to the members to enable them to avail opportunity of participating in
the meeting convened for the purpose of considering the no-confidence motion. The first part of the
section requiring the District Magistrate to convene meeting and to send notices to the members is
mandatory, any disregard of that provision would defeat the very purpose of the meeting, but the manner
of service of notice and publication of the same is directory in nature.

The purpose of service of notice by registered post and publication of the notice otherwise is to
ensure that members should get adequate notice, of the meeting to enable them to participate in the
debate over the no-confidence motion at the meeting. That purpose is not defeated if the notice is sent to
the members not by registered post but by other methods and seven clear days are given to the members.
The legislature never intended that unless notice is sent by registered post to the members the
proceedings of the meeting would be vitiated. The legislature, no doubt, stressed that if the two steps as
laid down in the sub-section are taken by the District Magistrate, i.e., notice of the meeting is sent to
members by registered post at their place of residence and further if it is published in the manner directed
by the District Magistrate, a presumption would arise and every member shall be deemed to have received
the notice of the meeting. In that case it will not be open to any member to contend that he did not
receive notice of the meeting or that the meeting was illegally constituted for want of notice. The purpose
of sending notice can be achieved even without sending the same by registered post. There may be a case
where the postal system may be disorganised and it may not be possible to send, notice by registered
post. (WORDS 505)

In that situation the District Magistrate may send notice to members of the Board by special
messenger giving them seven clear days before the date of the meeting. In that event the legislative
intent and purpose requiring sending of notice would be fully achieved, although in that event the rule of
presumption as laid down in the sub-section would not be available and if a challenge was made by a
member that no notice was received by him, the deeming provision will not be applicable and it would
require proof that the notice even though sent by ordinary post or by special messenger was actually
served on the member. The emphasis on sending notice to members by registered post and for publication
of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as
contemplated in the last sentence of the sub-section. In the absence of presumption, it is always open to a
party to prove that notice though sent in a different manner was served on the members. In view of the
above discussion. I am of the opinion that even if the notice is not sent to the members by registered post
the meeting cannot be held to have been illegally convened.
 EXERCISE NO. 74

In reply, learned Standing Counsel appearing for the State respondents has submitted that the
creation of post is within the sole domain of the State Government and it is purely executive function of
the State Government, which can be exercised keeping in view the necessity and requirement of the post
with a view to ensure proper and smooth administration and functioning of the State Government. It has
been urged that the creation of post of Deputy Director (Technical) does not come in the way of
functioning of incumbent of the post of Deputy Director, Engineering or Monitoring Cell occupied by the
petitioner as the respondent no.1 had been promoted on the newly created post of the Deputy Director
(Technical), which does not have any concern with the work, duties of the post of Deputy Director
Engineering Cell. He has urged that this Court has not restrained the answering respondent from creation
of any such post. He has further urged that since there was only one engineer available in the feeding
cadre for promotion to the post of Deputy Director (Technical) i.e. the fourth respondent, therefore, he
was considered and promoted. He has further urged that keeping in view the serious financial irregularity
committed by the petitioner, a disciplinary proceeding had been initiated against the petitioner and he was
placed under suspension, however this Court had interfered with the order of suspension and stayed it. In
compliance of the order passed by this Court, he has been reinstated in service. The disciplinary
proceeding is still pending against him. It has further been submitted that the post of medical officer was
abolished and in its place a new post of Deputy Director (Technical) was created, however since to the said
post only the person of engineering service could be promoted, it was the fourth respondent, who was
eligible for promotion and has been promoted in which no illegality has been done.

Mr. Mishra, learned counsel for the petitioner controverting the submissions of learned Standing
Counsel has submitted that the post of Deputy Director (Technical) is a higher post of medical officer and
has submitted that on abolition of the post of medical officer, the post of same status could be created in
another feeding cadre but the post of Deputy Director, which is a post of higher pay scale, could not be
created as it is a post of promotion also unless the rules are amended. Since Rule 5 provides only three
feeding cadres as a source of recruitment to the post of Deputy Director in proportionate manner, the
proportion of source neither could be increased or decreased without amending the Rules and if there was
necessity to increase the post of engineers, the State Government could increase it by abolishing the post
of medical officer but for the purpose of promotion to the higher post, no engineer could be considered
beyond ratio provided under the Rules, He, with full belief, has submitted that till date Rules 4 and 5 of the
Rules, 2004 have not been amended. (WORDS 505)

Insofar as the initiation of a departmental proceeding against the petitioner is concerned, he

submitted that it was initiated on a complaint allegedly made by one former Member of Parliament Smt.
Sushila Saroj, who after coming to know about the said fake complaint, wrote a letter to the Principal
Secretary on 29.01.2016 and explained that she had never made any such complaint. She had also
requested to get investigated the matter and further to take strict and stringent action against the person,
who is found guilty to make such a fake complaint. The fourth respondent had come forward to file counter
affidavit and has made his best efforts to justify his promotion to the post of Deputy Director (Technical)
stating therein that since the post of medical officer cadre was abolished and it was restructured by
creating a post of Deputy Director (Technical), there were two posts of Deputy Director from engineering
services for the reason that after abolition of medical officer cadre, there was no occasion to keep alive the
post of Deputy Director from medical services.
 EXERCISE NO. 75

We are told that dispute is only in respect to property No. 5 which has led to filing of two suits.
Appellants did not insist on division of this property by metes and bounds and agreed that respondents
shall pay value of share of appellants and thereafter, appellants shall forego their claim. It is pursuant
thereto value of house was worked out and the same was acted upon after making payment of three
installments by respondents. Appellants also acted upon by handing over possession to respondents. This
document has been relied by both the parties in defence also. It does not recognize any new right of
parties, but the parties have their own existing rights and it is only declaration of such rights as also
exchange of rights in one or other way. We are of the view that registration of this document was not
necessary in respect to property No. 5. In any case under Section 49 even an unregistered document was
admissible for collateral purpose particularly when both sides relied on the said document in support of
their case as well as in defence of their case to rely on as what was consented between parties. Hence
Court below has rightly decreed Suit-1 filed by respondents and dismissed Suit-2 filed by appellants.

Now, coming to Issue no. 6, we are of the view that Trial Court while considering interest, ought
not to have moderated upon rate of interest by directing respondents to pay only 10 per cent simple
interest on remaining amount of fourth installment. Instead rate of interest as provided by Mediator ought
to have been adhered to. Mediator has directed for payment of interest in the case of fourth installment at
the rate of 15% per annum. Meaning thereby it was compound interest in respect to last installment of
Rs.1.08 lacs. In respect to other installments it only says that interest shall be 15 per cent per annum. It
has not been stated specifically that it shall be payable annually. Hence, in respect to earlier three
installments the rate of interest was only 15 per cent per annum as simple interest and that has actually
been paid by the respondents. In respect to last installment i.e. second installment of Rs.1.08 lac, interest
is payable at the rate of 15 per cent per annum. Words "payable annually" particularly in reference to
interest means that interest is calculable annually and it renders the rate of interest to be calculated on
compound basis for the reason that interest, if payable annually, will be computed every year and if not
paid it shall be treated as unpaid amount and entitled to earn interest further. The mention of words
"payable annually" only with respect to fourth installment i.e. second installment of Rs. 1.08 lacs and non
mention of these words in respect of earlier installments make it clear that interest herein is different than
what it was payable in respect of earlier installments. (WORDS 492)

We find substance in the submission of appellants that in respect of fourth installment, i.e.,
second installment of Rs. 1.08 lacs, interest at the rate of 15% was calculable on compound basis. Court
below in taking otherwise view has erred in law and has further erred in law by going to the extent of
moderating interest which was admitted by parties for the reason that when particular terms and
conditions are accepted by parties, it would not open to any party to wriggle out of one or more conditions
and adhere to other conditions. All the conditions have to be taken as a whole or not at all. We, therefore,
hold that 15% interest in respect of unpaid amount of fourth installment is to be computed on compound
basis and has to be paid by respondents in order to get sale deed executed by appellants. In the
agreement it was contemplated that entire payment shall be made by 15.06.1981 but for the reasons
stated above, i.e., non availability of clearance certificate from Ceiling Department etc. and thereafter
involvement of parties in litigation last installment has remained unpaid till date. We, therefore, hold that
same rate of interest on compound basis will have to be paid by respondents to appellant on unpaid
amount of installment.
 EXERCISE NO. 76

Sri Raghvendra Kumar Singh, learned Senior Counsel for the respondent-University has invited
the attention of the Court to the entire material relating to parliamentary debates, the deliberations of the
Standing Committee of the Parliament and the objects and reasons to contend that firstly, the University
was established under a special Act, namely, the 1994 Act. The said Act clearly provided for special
reservation for Scheduled Castes/Scheduled Tribes and accordingly, the First Academic Ordinances provide
for 50% reservation to such classes. He therefore submits that this stood protected and could not be
abrogated by the general provisions of the 2006 Act. His contention is that the 1994 special Act continues
to hold the field and any exercise of framing of Ordinances under the said Act that provides for 50%
reservation could not have been taken away for which the amendment in the 2012 Act came to be
introduced. He submits that the respondent-University being a special University meant to uplift the cause
of Scheduled Castes/ Scheduled Tribes in particular is fully justified in providing 50% reservation which
stands protected under Article 15 (5) of the Constitution of India. He submits that even if the validity of
the 2006 Act has been upheld the same does not abrogate the provisions of the 1994 Act that can still
exist independently and which now stands even otherwise protected with the 2012 amending Act. He
contends that the petitioners having not challenged the competence of the Parliament or prayed for
declaring the said provisos as ultra vires to Part-III of the Constitution of India, the wisdom of the
legislature in introducing the statutory limitations cannot be said to be violative of Article 14 of the
Constitution of India. He submits that the provisos simply preserve and contain what was provided under
the 1994 parent Act of the University and hence all the arguments advanced on behalf of the petitioners
deserve to be rejected. He has also questioned the locus standi of the petitioners on the ground that
reservation is not a fundamental right and no such rights can be enforced by the petitioners.

He further submits that the University Ordinances were also laid before the Parliament and there
is a presumption of the validity of the 50% reservation provided for in the Ordinances. On the issue of
interpretation, he submits that the provisos, if literally as they stand, carve out an exception which does
not in any way violate either the main clause of Section 3 being an exception to the same and once having
been included, the wisdom of the Parliament or the reasonableness thereof cannot be questioned by the
petitioners. He submits that the purpose of a proviso is to make a provision which but for the proviso
would not be in the main Section and the same can also simultaneously stand with the main Section. There
is a presumption against implied repeal as such the 2006 Act does not override the 1994 Act, which is a
special Act. (WORDS 496)

Sri S. K. Kalia, learned Senior Counsel for the intervenors contends that the amending Act of 2012
does not in any way affect the status of the respondent-University or the reservation to the extent of 50%
provided by it under the 1994 Act which is a special Act. He submits that this special Act would exist and
any action taken thereunder cannot be questioned on the ground of any provision being made later on
through another act of Parliament. There is neither any repeal nor a presumption of implied repeal. The
First Ordinances of the University have the status of law and have come to form part of the Statute itself.
The 1994 Act being a special law would override the general provisions of the 2006 Act as amended in
2012. The statement of objects and reasons as well as the legislative debates leave no room for doubt that
the 2012 amending Act clearly intends to preserve the status of the University and also the extent of
reservation in favour of Scheduled Castes/Scheduled Tribes as was existing prior to the 2006 Act.
 EXERCISE NO. 77

Learned Standing Counsel appearing for the petitioner-employer contends that since engagement
of respondent workman was on contract basis, he could not have been granted relief of reinstatement
alongwith continuity of service with 75% back wages. It is also urged that claim before labour court is
barred by res judicata as claim stood rejected by the Public Services Tribunal. It is also argued that finding
of continuous working of 240 days in a calender year is based upon no material and that in the facts and
circumstances of the case, no adverse inference could be drawn against the petitioner employer, inasmuch
as the records demanded were not in existence at all. It is also stated that even if a finding of violation of
section 6 of the Act was returned, at best monetary compensation could have been awarded, but relief of
reinstatement alongwith 75% back wages is perverse. From the materials placed before this Court, it
appears that although a claim of regularization had been filed before the Public Services Tribunal, which
was rejected on the ground that respondent-workman is a daily wage employee and not a regular
government servant. It is not in dispute that issue of validity of termination was not the subject matter
before the Public Services Tribunal and, therefore, the argument advanced by learned Standing Counsel
that claim before the tribunal was barred by res judicata cannot succeed.

So far as the engagement of respondent-workman is concerned, it is alleged that he was

appointed on contract basis. Such a plea however was not taken in the written statement and was taken
for the first time in rejoinder statement. It is further recorded by the labour court that no agreement or
contract has been produced in order to demonstrate that engagement of respondent-workman was on
contract basis. The alleged letters filed as Annexure-7 to the writ petition recording that monthly wages of
persons engaged on contractual basis are being released, were not filed or proved before the labour court
and, therefore, such documents need not be entertained and scrutinized by this Court at the first instance.

So far as the working of respondent-workman from February, 1994 onwards is concerned, a

finding in favour of respondent-workman has been returned essentially by drawing adverse inference
against the petitioner-employer. A specific direction was issued to the employer to produce attendance
register and wages register for the period in question, which admittedly was not produced. The defence
taken that in respect of contract employee such registers are not maintained, has been rejected in view of
the finding that petitioner employer had failed to establish that respondent-workman was engaged on
contract basis. The Labour court has also relied upon the certificate issued by Deputy Sports Officer dated
10.8.1999, which was duly exhibited and proved. Petitioner employer has not been able to dispute such
certificate. The Labour court has further relied upon a communication of Regional Sports Officer dated
24.12.1997 for payment in respect of various employees including respondent workman. (WORDS 496)

Learned Standing Counsel has relied upon a judgment of the Apex Court in R.M. Mittal vs.
Assistant Executive Engineer, (2006) 8 SCC 213 in order to contend that it is for the workman to establish
his continuous working. This judgment would not be of much assistance to the petitioner employer
inasmuch as in the facts of the present case, the workman had discharged his onus by adducing his oral
statement and documentary evidence coupled with adverse inference, which led to a finding of 240 days'
working being returned by the labour court. Two important documents i.e. the certificate of working as well
as release of remittance to workmen had been brought on record and proved. Petitioner's case of
contractual employment has been disbelieved for cogent reasons. The non production of attendance
register and wages register was also material.
 EXERCISE NO. 78

It is not disputed that the accused-appellant Ram Dularey is a handicapped person, who has filed
his disability certificate issued by Medical Board of Chief Medical Officer, Mau certifying 60% disability in
his right leg and it has been admitted by PW-2 and PW-3 that accused-appellant is a handicapped person
disabled with one leg and cannot walk properly because of problem with one leg. It is not the case of the
prosecution that the accused-appellant was having love affair with the victim, the minor girl and enticed
her away on account of the love affair. It is also pertinent to mention that since the accused-appellant is a
handicapped person until and otherwise proved, no girl is supposed to fall in love with such a disabled
person and so even in case of any one side liking of victim by accused-appellant, there can be no reason
for the victim to go with the accused-appellant at her own. There is no whisper of any force having been
used by the accused-appellant or other accused persons in forcibly sitting the victim in Jeep with the
accused-appellant. It has been contended by the accused-appellant that the victim was major and was
living with her parents in Jaunpur and the police have not made any efforts to trace out the victim at
Jaunpur or anywhere else, where the appellant allegedly taken her away. It is pertinent to mention that
the first informant is a law graduate and it is expected from him as a prudent man to inform the police
immediately after the incident, so that there could have been better possibility of tracing out the victim.
The prosecution has also not made any efforts of tracing the victim by taking the accused-appellant on
police remand. The prosecution has failed to explain the inordinate delay of around 4 days in lodging FIR.
It has also been contended that as per entries in the family register, the victim was major at the time of
incident. The possibility of eloping of victim in the darkness of night without knowledge of anybody, may
not be ruled out.

Admittedly the first informant-PW 3 is highly educated person and postgraduate as has been
admitted by him in his cross-examination at page 8 of his cross-examination that he is M.A., LL.B. He has
stated that he lives at home and does agricultural work and since the matter was related to his prestige he
was very much nervous and so instead of writing the written report himself, got it written by Harish Yadav
on his dictation and in dictating there was no problem. It is pertinent to mention that the father of the
victim had come the very next day, but no reason has been assigned as to why the FIR was not lodged by
father himself. PW-1 and PW-2 are only chance witnesses and have also stated to have enquired into with
co-accused as to where the victim and accused-appellant have gone, but even when no reply was given by
them, they did not inform the first informant or father of the victim. (WORDS 512)

Similarly on alleged asking by PW-1 and PW-2 from Ram Manohar and others, not giving any
threat by them is quite unnatural, while on mere enquiry by the first informant, they allegedly threatened
him. The first informant has not assigned any reason when neither he was eye witness of the occurrence
nor got any information from alleged eye witnesses then why and on what ground he approached the
family members of accused/ appellant i.e. co-accused persons for enquiring about the victim. It is settled
principle of law that the evidence of interested or related witnesses should be considered with caution and
until and unless it is found to be trustworthy the conviction of accused on the basis of evidence of related
or interested witness is not justified. In view of the discussions made above and considering the unnatural
conduct of PW-1 and PW-2, I am of the considered view that they are not proved to be eye witnesses of
the incident of enticing away victim by accused/ appellant in presence of co-accused persons or otherwise
and their testimony is neither reliable nor trustworthy.
 EXERCISE NO. 79

In the light of documentary evidence available on record, learned counsel for the appellant invited
attention of this Court to the specific finding recorded by the Tribunal where it is said that the appellant
having failed to produce any record beyond 15th April, 2003, thus suppressed the relevant evidence,
hence the liability. It was argued that the Tribunal by making such an observation clearly fell into an error
once the relevant record of vehicle movement register was made available up to 31.5.2003. The
submission put forth was carefully analyzed in the light of material placed on record. It is seen that
photocopy of the agreement between the appellant and the owner i.e. respondent no. 2 placed on record
indicates that the offending vehicle had come in the operation of appellant under an agreement.

Insofar as the operation of vehicle as on 21.4.2003 is concerned, there is no specific denial in the
written statement by making a mention to the agreement and date of its validity. If any agreement
between the appellant and owner of the offending vehicle had overrun its validity period as on the date of
accident, there was no reason as to why such a fact would not find mention in para-24 of the written
statement. The denial of liability in paragraphs 37 and 38 also does not make a mention of the agreement
which existed between appellant and owner of the vehicle. This clearly goes to indicate that the appellant
had not set up a case on the strength of agreement of which a photocopy was filed and the invalidity
whereof ought to have been proved on the strength of evidence. The agreement placed on record,
however, gives a sufficient indication for this Court to draw an adverse inference due to the reason that
the agreement does not bear date of its commencement in the opening para. It is further gathered that
the addition of period of validity in the relevant paragraph is handwritten whereas rest of the paragraphs
drawing the agreement valid for a period of eleven months extendable for a further period of three months
would make the sense complete. The addition in handwriting restricting the operation of agreement is
suspicious. The date mentioned at the foot of the agreement is not clear as to its validity which reflects
nothing but an evasive attempt on the part of appellant.

The agreement having been filed by the appellant alongwith an affidavit shows that there was a
contract between the appellant and the owner whereunder possession of the vehicle vested in the
appellant as on the date of accident. The appellant had also placed on record a photocopy of the Vehicle
Movement Register which was handwritten but photocopy of the document which contains a resembling
number of the vehicle involved was not found admissible and was also not proved by the appellant.
Objection as regards the possession of the vehicle under a contract in the facts and circumstances of the
case, cannot be disbelieved even if the finding recorded by the Tribunal is found to be erroneous. (510)

This Court while exercising the appellate jurisdiction under Section 173 of Motor Vehicles Act is
competent to record a finding of fact having regard to the material available on record. Once possession of
the offending vehicle is found to be vested in the appellant on the date of accident and the view taken is
supported by the apex court decision rendered in the case of Uttar Pradesh State Road Transport
Corporation v. Kusum and others, (2010) 8 SCC 238 the question that crops up is as to the extent of
liability that can be fixed upon the appellant. From the perusal of agreement it is further evident that the
appellant has secured liability on his part by incorporating an indemnity clause in respect of the negligent
acts of the driver plying the vehicle. Thus, it is open to the appellant to claim from the owner any loss that
would arise out of negligent acts of the driver.
 EXERCISE NO. 80

All the three Investigating Officers have duly investigated the case and have recorded statement
of various witnesses including the accused persons and disclosure made in the statement of all the
witnesses and accused persons were duly verified and connected with the incident, which on the whole
proves and establishes culpability and involvement of the accused persons in the incident. Demand for
ransom Rs.5 lac has been specifically proved by the testimony of Shiv Shanker P.W.1 and Heera Devi
P.W.2 and nothing more than that was required to be proved for offence of demand for ransom. To say
that the demand of ransom was not proved, is not correct and charge made under Section 364A IPC is
accordingly justified. Right from the very beginning of the incident on 8.3.1999 and upto the filing of the
charge-sheet against the accused persons, all the material circumstances, facts and evidence, which was
necessary to establish in order to prove guilt of the accused, have been consistently established. Whatever
contradictions appear in the testimony of the prosecution witnesses are natural and bound to occur looking
to the facts and circumstances of the case and these contradictions cannot be termed either substantial
one or of the nature eroding the foundation of the prosecution case. The case of the prosecution is proved
beyond reasonable doubt against the appellants and the trial court has taken just and consistent view of
the evidence on record vis-a-vis factual as well as legal aspects of the case that formed basis of conviction.

We have also considered the rival submissions and also considered the various assertions and
denials made pros and cons between the parties and after considering the entire record the moot point
that arises for determinations of this appeal relates to fact whether the prosecution has been able to prove
charges under various sections of Indian Penal Code beyond reasonable doubt against the appellants. At
the very onset we may discuss certain admitted facts. It is asserted on behalf of the prosecution that the
incident of abduction of Adesh Tiwari took place on 8.3.1998 and it is alleged that the abduction was
masterminded and facilitated by Fakkad Gang. It is admitted to the prosecution that no name of any
member of Fakkad Gang has been specifically mentioned in the first information report. Bare perusal of
contents of first information report itself reveal that the report was lodged on 1.10.1998 approximately
after elapse of six months and three weeks of the occurrence. We may proceed with scrutiny of facts from
this point. It has come in the testimony of P.W.1 and P.W.2 that after Shiv Shanker who was also abducted
by Fakkad Gang was released in the month of May, 1998. He returned to his village then informed about
the incident to Smt. Heera Devi. He also informed Heera Devi about murder of Adesh Tiwari by the
members of Fakkad Gang including the appellants and a report in regard to these facts was given at the
police station but no action was taken by the police. (WORDS 505)

Here we may observe that this factual aspect of prior reporting to the police has its inkling in the
first information report itself where it has been alleged that after the report was made, the concerned
police station officer came to the village and advised informant Heera Devi to accede to the demand for
payment of ransom. However, the three Investigating Officers of this case- to be specific- first
Investigating Officer- Lallu Ram Tyagi, Second Investigating Officer- Chand Hussain and third Investigating
Officer- Ram Nath Singh Yadav P.W.8, P.W.7 and P.W.6, respectively have denied fact of any such prior
reporting at the police station and they have flatly denied the claim of prior information of the incident
being made to the police station. At this stage, we may observe that some whisper and guess could have
been exercised by us, if some worthy document or circumstance regarding lodging of prior report were
either produced for perusal of the trial court or were shown by circumstances of the case but no worthy
and authentic paper, record or circumstance has been brought forth by the prosecution by the informant.
 EXERCISE NO. 81

The present appeal by the Insurance Company is directed against the order dated 27 th March,
1989 by the High Court dismissing in limine the appeal filed by the appellant against the order of the
tribunal holding the Insurance Company liable under the policy. The question raised in this appeal is
whether the Insurance Company is liable on a policy taken at a time, which is after the time of the
accident though admittedly it being of the same date. According to the appellant the policy was taken for
which reliance is placed on the covering note. On the other hand, according to the respondent-owner, the
insurance was taken in the morning and not in the evening. It is not in dispute that the accident had taken
place at 11.30 a.m. The question, which was considered and decided by the tribunal, was that when the
policy is of the same date of accident, notwithstanding the same being issued after the accident, it would
still cover the liability of the insurer from the previous mid-night of the same date. Accordingly, it held that
the appellant is liable for the same.

It is not necessary for us to enter into this controversy in this appeal regarding the correctness of
time of the issuance of the insurance policy as this is a question of fact and this point has not been
adjudicated by the tribunal or taken note by the High Court. But now in view of the decision by this Court
in the aforesaid two cases, the adjudication of time becomes necessary for which it would be necessary
that now adjudication be made by the Tribunal as to what was the time of the issuance of the policy itself.
In view of this, we set aside the impugned order of the High Court qua the liability of the Insurance
Company and remand the case back to the Tribunal for deciding the aforesaid limited question regarding
the time when the insurance policy was issued and then decide consequential liability if any on the
Insurance Company, Since this point was not in issue, then we grant opportunity to both the parties to
lead any further evidence if they are so advised before the Tribunal to the extent it affects the appellant.

There is nothing on the record to show whether the claimant has received any sum decreed for an
accident, which took place in the year 1987. It is appropriate on the facts and circumstances of this case
that both the Insurance Company and the insured viz. the owner, who are both represented today before
us, to pay half and half of the decretal amount and this payment should be deposited by them before the
Tribunal within four weeks from today. The amount so deposited may be withdrawn by the claimant
without any security. The Tribunal shall intimate to the claimant about the amount being deposited so that
they may come to receive the said amount without any security. (WORDS 496)

However, there is dispute of time as to when this Insurance Policy issued. According to the
insured the policy was taken out at 10.00 A.M. and not 4.45 p.m. Reliance is placed about his deposition
and that insurance policy does not refer to any time though the date is there. Further submission is that no
cover note was issued to the insured. On the other hand submission on behalf of the appellant is that
cover note clearly indicates date and time of the insurance policy and thus non mentioning of time in the
insurance policy would be of no consequence as it can only follow the cover note. Further the insurance
policy refers to the number of cover note co- relating to the same number as that referred in the cover
note. Therefore, submission is the time recorded in the cover note is correct. The insured seriously
disputes the time of issuance of the insurance policy. Normally the liability would either be on the
Insurance Company or the insured. After the matter is adjudicated by the Tribunal, the person succeeding
will have right to recover the balance amount to the extent of success from the other person. (197)
 Exercise No. 82

The contesting respondents had allegedly filed a revision challenging the impleadment order,
which remained pending and was ultimately dismissed directing the parties to appear before the
Settlement Officer, Consolidation. A transfer application was also moved by the petitioners before the
Consolidation Commissioner and the appeal was ultimately decided on 30.08.2010 setting aside the order
of the Consolidation Officer and remanding the matter back to him for decision afresh. It is this order,
which was assailed by way of two revisions and the same have been dismissed vide order dated
31.01.2011 impugned herein.
Sri Rajneesh Rai, learned counsel for the petitioners vehemently submitted that there was no
ground for the Settlement Officer, Consolidation to have condoned the delay in filing of the appeal,
inasmuch as the notification under Section 52 of the Act had taken place on 23 rd March, 1991 and there
was no occasion for entertaining the appeal in relation to such an objection after such a long time. He
further contends that the alleged compromise was a valid compromise and it had also been signed by the
respondent no. 5. In such a situation, this aspect has completely escaped, , which was essential as the
respondent no. 5 had full knowledge of the proceedings as well as the sale deeds in favour of the
petitioners, but no steps were taken for seeking any declaration in relation to the sale deeds of the
petitioners before the appropriate forum. He further contends that the name of the petitioners had already
been entered into revenue records under the orders of the Tehsildar, which have not been challenged and,
therefore, the petitioners have acquired a legal right over the land in dispute, which cannot now be
reopened by the Consolidation Officer on the basis of the remand order. He, therefore, submits that the
orders of the Deputy Director of Consolidation as well as the Settlement Officer, Consolidation deserve to
be set aside. Sri Rajneesh Rai further contends that the revision has been dismissed treating the order of
the Settlement Officer, Consolidation to be not final between the parties as an interlocutory order, which is
also an erroneous approach in law and so far as the aforesaid observation of the Deputy Director of
Consolidation is concerned, the order of the Settlement Officer, Consolidation is not an interlocutory order.
It is evident that there was no substantial delay on the part of the contesting respondents,
inasmuch as the order which was sought to be set aside in appeal was dated 19.08.1997. In such a
situation, the Settlement Officer, Consolidation was perfectly justified in condoning the delay and
entertaining the appeal. On the merits of the claim, it is evident that a compromise was being made the
basis for the order dated 19.08.1997. The respondent no. 3 admittedly was not a party to the said
compromise even if his natural father has signed the same. The respondent no. 3 was not claiming his
rights through his natural father but on account of his share being the alleged adopted son. (WORDS 505)

Sri K.R. Sirohi, learned Senior Counsel for the contesting respondent, therefore, is right while
making his submissions that the Consolidation Officer while proceeding to dispose of the matter ought to
have taken notice of all the prospective heirs of the deceased Smt. Sona Devi and, therefore, the
Consolidation Officer fell in error by not issuing any notice to the respondent no. 3 before having
proceeded to accept the alleged compromise and decide the objections. The other contention of Sri Sirohi
has also to be accepted, inasmuch as, on the point of delay, the order itself was passed by the
Consolidation Officer on 19.08.1997 long after the denotification. The issue raised by the learned counsel
for the petitioners that the matter has been decided much after the denotification in 1991 has, therefore,
no substance. (words 133)
 Exercise No. 83

Learned counsel for the appellant has raised the plea of promissory estoppel before us and has
contended that the Government having itself assured the appellant and his other colleagues that they
would be promoted as Lecturers and having itself taken steps to prepare the seniority list of Demonstrators
working in various Government Medical Colleges, was bound by its promise and, therefore, ought to have
issued the necessary notification that the posts of Lecturers in the Department of Pharmacy would be filled
up to promotion of Demonstrators. Since this was not done, the High Court should itself have commanded
the Government to issue such a notification so that the promise, which was made to the appellant, was
fulfilled. It is contended that the Government had already issued such Notification in respect of the posts of
Professors and Readers by providing that they would be filled up to the extent of fifty per cent by
promotion of Readers and Lecturers and, therefore, in respect of the Department of Pharmacy, the same
policy should have been adopted.

It is not disputed that the posts of Lecturers in the Department of Pharmacy as also in other
Departments of Pharmacy are filed up by direct recruitment. It is also not disputed that so far as
Demonstrators are concerned, there are no rules, statutory or otherwise, which provide that they would be
promoted to the posts to Lecturers. The High Court has also considered this aspect of the matter and has
recorded a finding that medical education in Government Medical Colleges is a three-tier system consisting
of the posts of Professors, Readers and Lecturers. While these posts were earlier filled up by direct
recruitment by the two Government Notifications issued in the year 1977, it was provided that the posts of
Professors and Readers would be filled up to the extent of fifty per cent by promotion of Readers and
Lecturers and the remaining fifty per cent would be filled up by direct recruitment. The scheme of personal
promotion was also introduced under which a Lecturer of Reader who had put in service for a specified
period, was to be automatically promoted to next higher grade available to the Readers or Professors as
the case may be. No such provision was made for the promotion of Demonstrators nor was any scheme of
personal promotion made applicable to them. The High Court has also found it as a fact that the
respondents or any of them had not given any assurance to the appellant or other Demonstrators that
they would be promoted to the posts of Lecturers. In view of these findings, which are findings of fact, we
need not enter into the factual dispute once again. Assuming that any such assurance was given to the
appellant either by the State Government or by the Director that the appellant or any of his colleagues
would be promoted as Lecturers, let us examine whether the Rule of promissory estoppel could be invoked
in the particular circumstances of the case. (502)

Applying the above principles to the instant case, even if it is accepted that the State Government
or the Director, Medical Education & Training assured the appellant or any of his colleagues that they
would be promoted to the posts of Lecturer, such a promise cannot be enforced against the respondents as
the avenue of promotion for Demonstrators to the post of Lecturers was not provided either under the
Statute or any executive instruction. Moreover, if the post of Lecturer was filled up by promotion of
Demonstrator, it would defeat the existing mode of recruitment, namely, that it can be filled up by direct
recruitment only and not by promotion. It may also be stated that the appellant did not make any clear,
sound and positive averment as to which officer of the Government, when and in what manner gave the
assurance to the appellant or any of his colleague that hey would be promoted as Lecturers. (words 156)
 Exercise No. 84

The State Government thereafter issued a Government Order dated 6.9.2006, which relates to all
the animal Slaughter Houses owned by Urban Local Bodies in the State of U.P. By the said Government
Order, licence was to be granted for a minimum period of five years and maximum period of ten years.
Certain other conditions relating to transparency in granting the licence by public auction as well as
obtaining the mandatory permission from the State Pollution Control Board had also been mentioned. The
said policy decision was later amended by the State Government to the extent that the term of licence
mentioned in the said Government Order would be amended as minimum period of five years and
maximum period of twenty years. The other terms of the said Government Order were remain the same.
By another notification dated 29.9.2009, the constitution of Bid Evaluation Committee was notified in
terms of the said Government Order, which consisted of the Infrastructure and Industrial Development
Commissioner as Chairman and six other members. It may be relevant to mention here that during the
intervening period, a contempt petition was filed before the Apex Court for implementation of its directions
issued in the judgment and order dated 7.12.2006. In the said proceedings, the Principal Secretary of the
Government of U.P. submitted a proposal of modern Slaughter House as also the status report was placed
by the Nagar Nigam, Meerut before the Supreme Court mentioning that land has been acquired for
establishment of a modern Slaughter House. After considering the report of the Nagar Nigam, Meerut as
well as affidavit of the Principal Secretary, the contempt notice was discharged on 23.10.2009.
In compliance of the directions of the Apex Court for construction of modern Slaughter House as
well as the policy decision taken by the State Government, an expert consultant firm was appointed for
making the complete project report of Slaughter House in District Meerut. On 11.1.2010 further decision
was taken by the State Government to the effect that the Board of the Nagar Nigam, Meerut shall pass
resolution for the construction of modern Slaughter House, which should be strictly in accordance with the
U.P. Municipal Corporation Act and the same was to be informed to the Cabinet of Ministers of the State
Government and after the approval by the Cabinet, the Nagar Nigam was to publish the advertisement for
request for qualification and request for proposal. After completing the formalities and having appointed
the expert consultant and getting its report, the Nagar Nigam, Meerut published an advertisement/notice
on 1.7.2010 inviting tenders of request for qualification for establishment of a new modern Slaughter
House in District Meerut. In the said advertisement, the estimated cost of the project was shown as Rs.
100 crore and the project was to be implemented within 24 months. The pre-application conference was to
take place on 6.7.2010 and the last date of application was 13.7.2010 at the office of Municipal
Commissioner, Meerut. In response to the same, three applications were received, which included the
petitioner. (WORDS 505)

After examining the applications, the expert consultant examined the R.F.Qs. and expressed its
opinion to the B.E.C. that all the three parties were ineligible. Consequently, a fresh advertisement for
R.F.Q. was made, in response to which, five applications have been made, out of which two firms were
found to be the same and thus four applicants were invited for discussion by the High Powered Committee
of the State Government where discussions and deliberations were held on several dates. The Bids
Evaluation Committee thereafter fixed 8.9.2010 for considering R.F.Q. and R.F.P. of the three short-listed
firms. After considering all the applications, the Bid Evaluation Committee in its meeting on 8.9.2010
accepted the bid of the petitioner for developing and constructing the modern Slaughter House. (124)
 Exercise No. 85

Mr. Jaspal Singh, learned senior counsel appearing on behalf of the accused-appellant, submitted
that the order of conviction recorded by the trial court and confirmed by the High Court is not sustainable.
His main submission was to the effect that there was delay in filing the FIR on the part of the prosecution
witness. Had the story narrated by PW-4 been correct, he would have immediately rushed to the police
station to file the FIR but he waited for around 20 days for filing the FIR and the said delay has not been
sufficiently explained by PW-4. The learned counsel also submitted that the pistol had been recovered from
a public place, which was about half a kilometer away from a bridge and the pistol belonged to PW-9 and
not to the accused. There was sufficient evidence to show that the owner of the pistol was PW-9 as
established from the record and, therefore, the recovery of the pistol could not have been a ground for
conviction of the accused.

He further submitted that the parents of the deceased had not been examined by the prosecution
though as per the version of PW-4, he had talked to the parents of the deceased after the offence had
been committed. According to him, the FIR filed by PW-4 contained a story, which was not correct. There
was no reason for PW-4 to be afraid of anyone and yet he did not lodge the FIR for a long period of about
20 days. By not examining the parents of the deceased, there was suppression of material witnesses by
the prosecution. He further submitted that the statement made by the accused leading to the recovery of
the pistol had not been produced in the evidence and only the memo, which is in the nature of the
secondary evidence, was produced and, therefore, recovery of pistol could not have been believed by the
trial court. According to him, even the memo, which revealed that in presence of witnesses the pistol was
recovered, was not correct because there was only one witness when the pistol was recovered. According
to him, at the time of making a recovery memo, there were policemen who were not examined and there
was no justifiable reason for not examining those policemen.

On the other hand, the learned public prosecutor appearing for the State submitted that there was
proper investigation and upon appreciation of evidence adduced before the trial court, the trial court rightly
convicted the accused. According to the learned counsel appearing for the State, the discrepancy, if any,
with regard to identification of the pistol or the memo of recovery were so insignificant that it would not
lead to any serious consequences. According to him, the prosecution had established the case against the
accused and there was no reason to set aside the order of conviction. He had replied to all the submissions
made by the learned counsel appearing for the accused. (WORDS 500)

We have heard the learned counsel at length and have also gone through the relevant evidence.
We have also carefully gone through the judgments cited by the learned counsel appearing for the accused
and we do find that the said judgments support the legal submissions made by him. Upon perusal of the
impugned judgment and judgment of the trial court along with evidence, we are of the view that the order
of conviction passed by the trial court and confirmed by the High Court is just and proper for the reasons
set out hereafter. In our opinion, the trial court has rightly appreciated the evidence and the High Court
has also confirmed the order of conviction for justifiable reasons, duly incorporated in the judgment and
order confirming the conviction. So far as the delay in filing the FIR is concerned, there appears to be
substance in what has been stated by PW-4. Every human being would not react in the same manner when
he sees commission of an offence. A person might be bold enough to catch the offender or he might run
away and someone might never inform the police. (words 192)
 Exercise No. 86

There is distinction between the exercise of powers by the Chief Justice in framing the rules with
respect to the condition of service of Officers and servants of the High Court under Article 229, including
the power of modification and variations of the rules of the State Government applicable to the High Court
employees by virtue of power preserved under Rule 50 of the Rule of 1992 and the exercise of powers by
the Chief Justice as Executive Head of the High Court establishment under the rules framed by him. The
Chief Justice has to follow the rules framed by him punctually and faithfully as others are to follow. Any
breach of rule by the Chief Justice cannot be construed as exercise of power of modification of rules.
Reverting to the direction dated 2.9.1997, in my view, the Hon'ble the then Acting Chief Justice was in
error in considering that the 12 persons against whom there were adverse remarks, could be excluded
from the zone of consideration. What is the effect of adverse remarks in the ACR, was a matter for the
Selection Committee to consider. A person cannot be excluded from the zone of consideration for the
reason that there is adverse entry. Similarly, it was wrong to consider that six persons against whom
departmental inquiry was pending, could be excluded from the zone of consideration. If the departmental
inquiry is pending against a person in the eligibility list, the Selection Committee is required to follow a
known procedure of sealed cover. Thus, the very premises on which the zone of consideration has been
extended is contrary to law.

It is stated that upto 1979, promotions were given on the basis of seniority-cum-merit. The merit
was considered on the basis of confidential reports and other service record. However, thereafter, a
method of judging the capacity of the Senior Assistants due for promotion to hold the Supervisory post of
Section Officer from their performance on the tables on which they were working was not found adequate
and, therefore, it became necessary to evolve some method in addition to the consideration of the
confidential reports and other service record whereby the suitability or otherwise of the candidate can be
assessed properly in the interest of office efficiency. It is also submitted that the system of taking written
and oral test to assess suitability or otherwise on a comparative evaluation of the eligible candidates thus
came into existence after 1979. In November 1979, the Hon'ble the then Chief Justice directed to take
interview of the Assistants concerned and prepare select list in the order of merit. They were also tested
by asking them to prepare some submissions. Thereafter, in the year 1981, written test and oral interview
were taken on 31.7.82. In para 14, it is stated that the Selection Committee also considered the adverse
reports recorded in the ACR against the candidates. This fact does not find confirmation from the
proceedings of oral test. (WRODS 495)

Thus, the Hon'ble Chief Justice, in his wisdom, while exercising the powers under Article 229 of
the Constitution of India in framing Rule 47 of the Rules of 1992, provided combination of three
components i.e. past performance, written test and oral test for determination of merit in the matter of
promotion on selection post. However, the mechanism evolved prior to 1992 has been carried forward,
unmindful of the fact that it does not contain the important component of past performance. Without over-
emphasizing the importance of past performance, it cannot be disputed that for recruitment from among
the persons of matured personality, appraisal of past performance is the basic and essential requirement.
It is also not in dispute that the system of writing annual confidential report is in existence in the High
Court establishment. It is of course true that it has been subject to criticism to certain extent, but for that
efforts can be made to bring change therein by substituting a new and more open Participatory Appraisal
system. (words 170)
 Exercise No. 87

Before the High Court, the appellant strongly defended the judgment of the trial court and pointed
out that the respondent had not even led any evidence in support of her case. The High Court, however,
took the view and we think quite rightly that even though the respondent did not produce any evidence, no
decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings
and the evidences produced by him that his case was covered by Section 13(1) of the Hindu Marriage Act.
On a consideration of the materials on record, the High Court found and held that no case of cruelty could
be made out against the respondent and hence, the appellant was not entitled to the decree of dissolution
of marriage on that ground.

The High Court found that the judgment of the trial court was mainly based on three allegations
cited by the appellant as instances of the respondent's cruelty. First, she put the blame on the appellant
and his family members for the miscarriage suffered by her when she went to attend the marriage of the
appellant's brother against his advice. The High Court pointed out that the miscarriage would have caused
the greatest distress and pain to the respondent and instead of sympathizing with her, the appellant chose
the incident to cite as an instance of her cruelty. This showed not the cruelty of the respondent but the
complete insensitivity of the appellant himself. The High Court also observed that a marriage in the family
is an occasion for rejoicing in India in which all the family members are supposed to participate. If the
respondent had failed to go to attend the marriage of her husband's brother, then also she would have
been liable to be blamed. The High Court then took up the other allegation that the respondent did not
come to attend and take care of the appellant when he was undergoing medical treatment in a hospital for
the injuries caused in an accident. The High Court found that this allegation was not part of the appellant's
pleadings and the matter was introduced in course of evidence.

The court observed that not being stated in the pleadings, the allegation could not be taken into
consideration. Even otherwise, apart from the oral statement made before the trial court, there was no
material to support the allegation. The appellant did not examine any doctor or produce the medical
records in connection with his treatment. In any event, one single instance in isolation was hardly
sufficient for the dissolution of marriage on the ground that the respondent treated the appellant with
cruelty. The court also rejected the third allegation by the appellant that the respondent did not come to
attend and serve his mother when she was admitted in a hospital for eye surgery. The Court did not
believe the case as neither the mother nor the attending doctor was examined nor was any documentary
evidence produced showing the mother's surgery. (WORDS 505)

Having thus dealt with all the allegations made by the appellant and having considered the
materials on record in some detail, the High Court found that the appellant had not been able to bring his
case under section 13(1) of the Hindu Marriage Act. It accordingly allowed the respondent's appeal and set
aside the judgment and decree passed by the trial court. On hearing counsel for the parties and on going
through the judgments of the trial court and the High Court, we are in agreement with the view taken by
the High Court and we are satisfied that its findings do not warrant an interference by this Court in appeal.
We are not impressed by this submission at all. There is nothing to indicate that the respondent has
contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage by his own
conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek
divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits
of his/her own misdeeds. (WORDS 188)
 Exercise No. 88

Mr. Raj Malhotra, learned Senior Counsel appearing on behalf of the appellant would submit that
the Division Bench of the High Court committed a serious error in passing the impugned judgment insofar
as it failed to take into consideration the importance of holding a physical test before preparation of the
select list. The learned counsel urged that arbitrariness on the part of the Selection Committee is apparent
from the fact that the order of holding tests was pushed to the background. It was furthermore submitted
that the Division Bench of the High Court did not assign sufficient and cogent reasons for interfering with
the well considered judgment of the learned Single Judge and proceeded to modify the same without any
application of mind. Our attention was moreover drawn to the fact that the purported reasons for
modification, which were enumerated in paragraph 12 of the impugned judgment, really contain the
statement of facts and thus the same is wholly unsustainable.

Mr. P.K. Goswami, learned Senior Counsel appearing on behalf of the private respondents, on the
other hand, would contend that the appellant, in the facts and circumstances of this case, must be held to
be estopped and precluded from raising any contention with regard to the validity or otherwise of the
procedure for selection adopted by the Selection Committee as he had participated in the Selection process
without any demur whatsoever. It is stated that pursuant thereto and in furtherance thereof only the said
respondent had been appointed and had been working since then.

Our attention was furthermore drawn to the fact that against the order of the learned Single
Judge, a writ appeal had been filed by him, which is pending. Indisputably in the advertisement, the
candidates were required not only to qualify in the written test but also the physical ability test. A plain
reading of the advertisement clearly goes to show that the interview was to be conducted only after
holding of the said two tests. In tune with the said requirements only, the candidates were asked to
appear in the written test on 26.4.1998 and in the physical test on 28.4.1998. There cannot, however, be
any doubt whatsoever that a Selection Committee in a given situation, may lay down a procedure for the
purpose of short listing the candidates but that does not mean that for the said purpose, the order of
holding a requisite test would be changed.

In terms of a decision, which was taken on 7.4.1999, the Selection Committee thought to take
interview prior to holding of the physical ability test. Physical ability test keeping in view the nature of the
job required to be performed by the candidates was an extremely important one. Passing in the physical
ability test is a sine qua non for selection of the candidates in the post of Sub-Inspector of Police. It was
indeed a competitive test and the merit list should have been prepared not only on the basis of the written
test and interview but also the physical ability test. (506)

The Selection Committee, in our opinion, committed a serious error in changing the order of
holding the tests. The learned Single Judge, therefore, was correct in arriving at a conclusion that physical
ability test should have been held prior to holding of the interview.
 Exercise No. 89

The Commission contends that the manner of conducting examination by the Commission even in
regard to recruitment to Judicial Service, is governed by the Uttar Pradesh Public Service Commission
Rules, 1976 made by the Commission in exercise of the power conferred by the UP State Public Service
Commission Act, 1974. Rule 26 provides for preparation of a panel of Examiners or constitution of a
Committee for the purpose of holding examination in each subject. Rule 28 provides that the question
papers set by the examiners shall be placed before the Commission to ensure conformity with the required
standard of examination and the Commission may moderate the question papers or constitute a
Committee to perform the work of moderation. Rule 30 provides for advertisement of vacancies for which
selections are to be made and scrutiny of applications received. Rule 33 provides for the determination of
place, dates and time of examination and the centres for examination. Rule 34 provides for the list of
persons suitable to be appointed as invigilators and appointment of invigilators. Rule 37 provides for
fictitious roll numbers to be allotted to each candidate before the answer books are despatched to the
examiners for assessment. Rule 38 provides that the number of answer books to be sent to each examiner
shall be fixed by the Commission.

Rule 44 requires the Secretary of the Commission to take steps for tabulation of marks obtained
by each candidate as soon as the answer scripts are received after valuation and removal of discrepancies
and corrections. Rule 45 provides for random checking of the tabulation to ensure correctness and
accuracy of tabulation. Rule 47 provides that the original roll numbers of candidates shall thereafter be
restored to the answer-scripts and for issue of interview letters. Rule 49 authorizes the Commission to
decide the number of candidates to be called for interview to appear before a Board on any day. Rule 50
provides that the interview marks awarded shall be kept in safe custody. Rule 51 provides that mark-
sheets shall be opened on the last day of interview and immediately thereafter the marks of
interview/personality test shall be added to the marks obtained by the candidates in the written
examination, and thereafter on the basis of the total so obtained, the merit list shall be prepared and
placed before the Commission for final declaration of the result. It is no doubt true that Judicial Service
Rules govern the recruitment to Judicial Service having been made in exercise of power under Article 234
in consultation with both the commission and the High Court. It also provides what examinations should be
conducted and the maximum marks for each subject in the examination. But the Judicial Service Rules
entrust the function of conducting examinations to the Commission. The Judicial Service Rules do not
prescribe the manner and procedure for holding the examination and valuation of answer-scripts and
award of the final marks and declaration of the results. (WORDS 495)

Therefore, it is for the Commission to regulate the manner in which it will conduct the examination
and value the answer scripts, however, to the provisions of the Judicial Service Rules. If the Commission
has made Rules to regulate the procedure and conduct of the examination, they will naturally apply to any
examination conducted by it for recruitment to any service, including the judicial service. But where the
Judicial Service Rules make a specific provision in regard to any aspect of examination, such provision will
prevail, and the provision of PSC Procedure Rules, to the extent it is inconsistent with the Judicial Service
Rules, will be inapplicable. Further, if both the Rules have made provision in regard to a particular matter,
the PSC Procedure Rules will yield to the Judicial Service Rules. (WORDS 133)
 Exercise No. 90

Mr. Shanti Bhushan, learned senior counsel appearing for the appellant submitted that the High
Court has gravely erred in declining the anticipatory bail to the appellant. He submitted that Section 438
Cr.P.C. was incorporated because sometime influential people try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes by getting them detained in jail for some days. He
pointed out that in recent times, with the accentuation of political rivalry, this tendency is showing signs of
steady increase. He submitted that the appellant has been implicated in a false case and apart from that
he has already joined the investigation and he is not likely to abscond or otherwise misuse the liberty while
on bail, therefore, there was no justification to decline anticipatory bail to the appellant.

Mr. Bhushan also submitted that the FIR in this case refers to an incident, which had taken place
on the instigation of the appellant about eight days ago. According to him, proper analysis of the
averments in the FIR leads to irresistible conclusion that the entire prosecution story seems to be a cock
and bull story and no reliance can be placed on such a concocted version. Mr. Bhushan contended that the
personal liberty is the most important fundamental right guaranteed by the Constitution. He also submitted
that it is the fundamental principle of criminal jurisprudence that every individual is presumed to be
innocent till he or she is found guilty. He further submitted that on proper analysis of Section 438 Cr.P.C.,
the legislative wisdom becomes quite evident that the legislature wanted to preserve and protect personal
liberty and give impetus to the age-old principle that every person is presumed to be innocent till he is
found guilty by the court.

Mr. Bhushan also submitted that an order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their power and right to fully investigate into charges made against
the appellant. He further submitted that when the case is under investigation, the usual anxiety of the
investigating agency is to ensure that the alleged accused should fully cooperate with them and should be
available as and when they require him. In the instant case, when the appellant has already joined the
investigation and is fully cooperating with the investigating agency then it is difficult to comprehend why
the respondent is insistent for custodial interrogation of the appellant. According to the appellant, in the
instant case, the investigating agency should not have a slightest doubt that the appellant would not be
available to the investigating agency for further investigation particularly when he has already joined
investigation and is fully cooperating with the investigating agency. Mr. Bhushan also submitted that
according to the General Clauses Act, 1897 the court which grants the bail also has the power to cancel it
and the grant of bail is an interim order. The court can always review its decision according to the
subsequent facts, circumstances and new material. (WORDS 505)

Mr. Bhushan also submitted that the exercise of grant, refusal and cancellation of bail can be
undertaken by the court either at the instance of the accused or a public prosecutor or a complainant on
finding fresh material and new circumstances at any point of time. Even the appellant's reluctance in not
fully cooperating with the investigation could be a ground for cancellation of bail. Mr. Bhushan submitted
that a plain reading of the section 438 Cr.P.C. clearly reveals that the legislature has not placed any fetters
on the court. In other words, the legislature has not circumscribed court's discretion in any manner while
granting anticipatory bail, therefore, the court should not limit the order only for a specified period till the
charge-sheet is filed and thereafter compel the accused to surrender and ask for regular bail under section
439 Cr.P.C. (WORDS 142)
 Exercise No. 91

However, we have considered the present petition moved by the petitioner in person. It appears
to us that the petition, which has been presented before this Court, lacks in material particulars and it is
also very difficult to discern precisely the allegations sought to be made in the said application. The
petitioner has also made a wide and sweeping allegation against a Judge of the High Court without giving
any instance how and in what manner the said Judge has influenced the other judicial officers of the State.
Such sweeping allegations against a Judge and other judicial officers need to be deprecated in no uncertain
term. But it appears to us that the petitioner is a confused person and perhaps has failed to appreciate the
consequence of making wild allegations against judicial officers. Even in this application, the petitioner has
alleged that this Court should pass a direction for making Hindi as a national language because such
direction should have been given twenty eight years ago. He has also contended that he should be
compensated for the loss alleged to have been suffered by him without indicating how and in what manner
he has suffered losses. He has also alleged that the nation should also be compensated for the loss
suffered by the nation from the pockets of the concerned persons, who did not care to take action against
illegal and improper activities by the Mill Owners and some other persons. Such statements reveal utter
confusion and obsessions of the petitioner. We are, therefore, not inclined to take any serious view of the
wild allegations made against some of the members of the judiciary.

We may indicate here that as a matter of fact when these matters were taken up for hearing
before another Bench of this Court on 12th August, 1994, the said Bench with respect rightly could not
appreciate the precise relief which the petitioner was seeking and as the petitioner was appearing in
person and was making reference about various cases filed in different courts without giving relevant
particulars of such cases and orders passed in such cases. Hence, the Bench in its order dated 12 th August,
1994 indicated that it was not possible for the Court to understand what were those cases and against
whom the same had been filed because the copies of those orders were not available on the record. By the
said order, it was directed that the Secretary, Supreme Court Legal Aid Committee, would render
assistance to the petitioner to project his grievance and assist the Court and the petitioner was directed to
approach the Supreme Court Legal Aid Committee for that purpose. It appears that in view of the
direction, a counsel of this Court was engaged by the Supreme Court Legal Aid Committee but for the
reasons best known to the petitioner, the petitioner chose to address the Court in person and in his
submission he made general and sweeping remarks about the increase in corruption and malpractices
gripping the country seriously affecting the progress of the nation. (WORDS 508)

He also alleged that various smuggling and nefarious activities relating to narcotic and
psychotropic drugs were being committed by the owners of Oil Mill and various complaints made by him in
different law courts were simply dismissed. In the absence of the copies of complaints alleged to have
been presented in various courts of law and orders passed on such complaints, it is not possible to
appreciate whether such complaints were maintainable or not and whether or not orders passed on such
complaints were justified. That apart, if an order is passed by a court, a party aggrieved may move against
such order in a manner known to law and within the framework of law. As the impugned order of the High
Court dated 8th December, 1993 passed in Civil Misc. Petition No. 63 of 1993 does not call for any
interference and as these petitions do not merit any further consideration, we dismiss the same without
any order as to costs. (Words 161)
 Exercise No. 92

A bare reading of this provision makes it clear that the prerequisite to exercise of jurisdiction by
the Commissioner suo motu is erroneous insofar as it is prejudicial to the interests of the revenue. The
Commissioner has to be satisfied with two conditions and there can be no doubt that the provision cannot
be invoked to correct each and every type of mistake or error committed by the Assessing Officer. It is
only when an order is erroneous that Section will be attracted. An incorrect assumption of facts or an
incorrect application of law will satisfy the requirement of the order being erroneous. The phrase
'prejudicial' to the interests of the revenue is not an expression of art and is not defined in the Act.
Understood in its ordinary meaning, it is of wide import and is not confined to loss of tax.

In this context, it must be regarded as involving a conception of acts or orders, which are
subversive of the administration of revenue. There must be some grievous error in the order passed by
the Income-tax Officer, which might set a bad trend or pattern for similar assessments, which on a broad
reckoning, the Commissioner might think to be prejudicial to the interests of Revenue Administration. In
our view, this interpretation is too narrow to merit acceptance. The scheme of the Act is to levy and collect
tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an
erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will
certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial' to the interests of the
revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss
of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the
interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible
in law and it has resulted in loss of revenue or where two views are possible and the Income-tax Officer
has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous
order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is
unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed
as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as
such will be erroneous and prejudicial to the interests of the revenue. In the instant case, the
Commissioner noted that the Income-tax Officer passed the order of nil assessment without application of
mind. Indeed, the High Court recorded the finding that the Income-tax Officer failed to apply his mind to
the case in all perspective and the order passed by him was erroneous. (WORDS 504)

It appears that the resolution passed by the board of the appellant- company was not placed
before the Assessing Officer. Thus, there was no material to support the claim of the appellant that the
said amount represented compensation for loss of agricultural income. He accepted the entry in the
statement of the account filed by the appellant in the absence of any supporting material and without
making any inquiry. On these facts the conclusion that the order of the Income-tax Officer was erroneous
is irresistible. We are, therefore, of the opinion that the High Court has rightly held that the exercise of the
jurisdiction by the Commissioner under Section 263(1) was justified. The second contention has to be
rejected in view of the finding of fact recorded by the High Court. It was not shown at any stage of
the proceedings, the amount in question was fixed or quantified as loss of agricultural income and
admittedly it is not so found by the Tribunal. (WORDS 166)
 Part 5 EXERCISE NO. 1

The Tribunal, in the instant case, has issued notices and has called upon the opposite party in the
Contempt Application for appearing before it in order to frame charges and then proceed in the matter. In
our opinion, this stage cannot be a stage for entertaining a writ petition on the ground as if the Contempt
Application was not maintainable and the Tribunal had no jurisdiction to proceed with the same. To our
mind, it appears that the Tribunal on a perusal of the order dated 18 th November, 2009 as well as the
order dated 6th December, 2006 was of the prima facie opinion that disobedience has been committed.
The Contempt Application was filed against three named officials. Unfortunately the said officials, who were
summoned in person have not filed the present writ petition. The present writ petition has been filed in the
name of the designation of the officials and not in their own personal capacity. The writ petition, therefore,
as framed on behalf of the personnel in their official capacity would not be maintainable when the notices
have been issued in person to the then officials who were being complained of having disobeyed the
orders.

The issue of finality in relation to the dispute of the vacancy and availability of the post of Lab
Assistant was an issue which was decided in paragraph no. 5 of the judgment dated 6th December, 2006
as extracted hereinabove. Even if, it is presumed that the operative part of the said judgment in paragraph
no. 8 allowed the authority to proceed if the vacancy was available then too, an order came to be passed
by the High Court dismissing the writ petition filed by the petitioners on 27th March, 2008. The finding
recorded in paragraph no. 5 of the order dated 6th December, 2006 was therefore, upheld and not set
aside. Apart from this, an attempt to get the judgment of the Tribunal reviewed also failed and the review
application was dismissed on 10th December, 2007. The respondent no. 1 filed a Contempt Application No.
92 of 2007 and the order passed therein and extracted hereinabove directed the authority to ensure
compliance within three months. Thereafter also the petitioner-General Manager passed an order on 25th
April, 2008 again rejecting the claim of the respondent no. 1 which was set aside in the execution
application decided on 18th November, 2009. The said order in the execution application was never
challenged by the petitioners and has attained finality. The petitioner no. 1 then proceeded to pass an
order on 24th February, 2010 which has given rise to the action for contempt. The Contempt Application
would therefore, be maintainable if a disobedience is being alleged in respect of an order which has
attained finality. The defence of the petitioners on this issue can be examined only after the charges are
framed and their defence is considered in order to establish as to whether the order dated 24th February,
2010 passed by the General Manager is contemptuous or not. (WORDS 503)

This trial cannot be preempted by taking recourse to the discretionary jurisdiction or supervisory
jurisdiction of this Court under Articles 226 and 227 of the Constitution of India as this would amount to
preventing the Central Administrative Tribunal from determining its own authority to proceed in a matter
of contempt where disobedience is alleged. An order amounting to prohibition or a mandamus restraining
the Tribunal from exercising its authority to examine the nature of the contempt alleged therefore, would
not be permissible under the garb of a writ of certiorari which has been prayed for to quash the order
whereby the officials have been summoned.
 Part 5 EXERCISE NO. 2

It was urged that the petitioner has no grievance as he was not residing at the premises in
question and only an ex-Judge was residing who exerted his authority in getting the registration under the
Sarais Act cancelled. It was urged that the grant of registration under the Sarais Act was a matter
between respondent no. 3 and the authority as well as the petitioner or his brother had no locus standi to
raise any objection. It was alleged that the brother of the petitioner used his influence to get the
registration cancelled. This assertion, in our opinion, is patently erroneous and bereft of any merit. There is
not an iota of evidence brought on record to indicate that any kind of pressure or influence was exerted by
an ex-Judge of this Court upon the administration in cancelling the registration. The petitioner had a locus
as well as a right to object to the grant of the registration under the Sarais Act and after the grant when
the terms and conditions of the registration certificate was violated with impunity, the petitioner had every
right to object and pray for cancellation of the registration.

On the other hand, the Court finds that after the cancellation of the registration certificate by the
authority, respondent no.3 initially took a legal recourse by filing a writ petition, in which an interim order
was granted by the Court, but, subsequently respondent no.3 withdrew the writ petition to enable him to
approach the authority, based on which a review application was filed, which was rejected by the authority
and the matter came to an end thereafter. After the expiry of six months, the record reveals that a
recommendation was obtained by respondent no.3 from a powerful State Minister as well as from a local
Member of Legislative Assembly. Based on the recommendation from the Minister, the matter was
reopened on the second review application of respondent no.3. When no action was being taken on the
second review application, the State Minister again writes to the authority directing him to pass orders and
not to make it a prestigious issue. On this basis, the order of cancellation was recalled without giving
opportunity to the petitioner. From the evidence that has been brought on record, it is apparently clear
that there is no evidence filed by respondent no.3 to indicate that the brother of the petitioner exerted any
kind of influence upon the administration. On the other hand, there is sufficient material to indicate that
the impugned order has been passed at the behest of the politicians, upon pressure being exerted by
them. The respondent no.3 asserted that the petitioner was also running a marriage hall in its premises
under the name of Lakshmi Narain Vatika. This allegation has been vehemently refuted by the petitioner.
The petitioner contended that there has been a partition in the family and a portion of the land has gone in
the name of his nephew, who is is running this marriage hall. (WORDS 500)

These facts have not been refuted by respondent no.3 nor any evidence has come before the
Court to indicate that these facts are incorrect. Further, nothing has been brought on record to indicate
that any resident made a complaint about the running of this marriage hall by the nephew of the
petitioner, which was in violation of the Government Order of 2012 or under the Act of 1973. It was
contended that no review application lies as there is no provision under the Sarais Act for filing a review
application. It was also contended that in any case a second review application cannot be filed. On the
other hand, it was contended that there is always an inherent power of the authority to review its order
and that the second application was not a review application, but was a representation for reconsideration
of the matter, which was permissible in law.
 Part 5 EXERCISE NO. 3

The submission which was urged before the learned Single Judge was that denial of arrears of
salary to the first respondent was illegal and without jurisdiction on the ground that no such punishment
was prescribed under the Rules and in the garb of reducing the punishment, arrears of salary could not
have been denied. The learned Single Judge observed that the Appellate Authority did not find the order of
dismissal to be correct and consequently directed reinstatement. According to the learned Single Judge,
the denial of back wages was a punishment imposed by the Appellate Authority and since the Rules do not
provide for imposition of such a punishment, the order was contrary to the statutory Rules and hence a
nullity.

Learned counsel appearing on behalf of the appellant submits that the impugned order of the
learned Single Judge is based on a patent misreading of the order passed by the learned Administrative
Judge as Appellate Authority. It has been urged that denial of back wages in the present case was not
imposed by the learned Single Judge as a punishment. The learned Administrative Judge held that this was
fit and proper case for reducing the extreme penalty imposed upon the first respondent on humanitarian
grounds and consequently directed reinstatement. However, back wages were denied not by way of
punishment but for the reason that while ordering reinstatement, an order has necessarily to be passed in
terms of the Financial Handbook in regard to the pay and allowances payable to a government servant for
the period of his absence from duty including the period of suspension preceding his dismissal. On the
other hand, it is urged on behalf of the first respondent that if the order of the Administrative Judge is
properly construed it would appear that the Appellate Authority had arrived at a finding that the charge of
misconduct was not proved and once a charge of misconduct was held not to have been proved, the first
respondent was entitled to reinstatement and a consequential order of back wages was necessary. There
being no statutory penalty of reducing the quantum of back wages, the learned Single Judge was justified
in setting aside the order of the learned Administrative Judge and ordering full back wages.

The judgment of the learned Single Judge would indicate that the only submission which was
urged by the first respondent at the hearing of the petition was that denial of arrears of salary to the first
respondent was without jurisdiction since no such punishment is prescribed under the Rules and in the
garb of reducing the punishment, arrears of salary could not have been denied. This is the only ground
which weighed with the learned Single Judge because the impugned judgment proceeds to hold that the
denial of back wages is not one of the prescribed penalties and hence cannot be imposed by way of a
punishment. There is a fundamental fallacy in the submission which was urged before the learned Single
Judge and which found acceptance in the impugned order. (WORDS 506)

At the outset, it is necessary to note that a plain reading of the order of the learned
Administrative Judge would indicate that as an Appellate Authority, the learned Judge was of the view that
the punishment of dismissal was disproportionate and "appears to be highly excessive". On this ground,
the learned Administrative Judge directed reinstatement. However, back wages were denied. There is
nothing in the order of the learned Administrative Judge to indicate that the denial of back wages was by
way of a punishment.
 Part 5 EXERCISE NO. 4

Bare perusal of the testimony of the complainant and the statements of accused persons under
Section 313 Cr.P.C. would reveal that both the parties had inimical relationship. This fact has been
mentioned in the first document prepared after the incident i.e. the first information report. The FIR itself
says that the rival parties had hostile relationship. Few months prior to the incident, election for assembly
took place, in which the complainant party was supporting an independent candidate while Late Mishri Lal
and his family were supporting candidate of political party.. This created tension between the rival families.
It is suggested that accused persons were in fact searching for right moment to attack on the deceased.
This incident occurred almost 4-6 months prior to the main episode.
We have carefully examined the factual evidence of P.W.-1 and P.W-2 and we believe that there is
absolutely no reason to disbelieve or to discard their testimony. As far as question of lack independent
witness is concerned, it is evident that in every case the independent witnesses are not available. It is also
not necessary to produce them in every eventuality. When the witnesses of fact are not fully trustworthy
then alone courts can seek some corroboration. In the present case, evidence given by both P.W.-1 and
P.W-2 is highly natural and consistent with the normal human conduct. If the evidence, produced by the
prosecution is trustworthy and reliable then this evidence cannot be rejected merely on the ground that
independent witnesses, though available, were not produced. Criminal cases are decided on the basis of
available evidence. If available evidence is trustworthy then even the testimony of sole witness can be
relied to convict the perpetrator of the crime.

Argument of appellants that both the witnesses of facts are not reliable as both are partisan, is
not acceptable. Of course, both witnesses are partisan but there is nothing on record to demonstrate that
witnesses of facts are either lying or economical with truth. Fact of the matter is that it is much more
difficult for partisan witnesses to spare real culprits of commission of grave crime like murder and to
implicate falsely someone with whom they merely had some minor altercation 5-6 months prior to the
incident on a very trivial matter during surcharged atmosphere of election. Ordinarily, people do take such
things in their stride and this observations finds support from a fact that neither party went to the police
after this incident. In the instant case, FIR was lodged promptly. Initial medical examination was done at
3.30 p.m. meaning thereby that within 30 minutes of the said incident, both injured persons were present
at P.H.C. Kaurihar, Allahabad. Incident occurred at 3 p.m. Medical examination started at 3.30 p.m. It can
safely be presumed that injured persons and their supporters went to the Kaurihar PHC after spending
some time at the place of occurrence and arranging a transport for the hospital. This indicates that
prosecution witnesses did not get any time for fabrication, concoction or false implication. (WORDS 504)
 Part 5 EXERCISE NO. 5

Sri Mishra contends that the said regulation in relation to extension of the period of probation
requires recording of reasons in writing by the appointing authority. He therefore submits that in a lesser
adverse situation where the period of probation is to be extended the regulation provides for recording of
reasons. Therefore, while discharging a probationer such recording of reasons are all the more necessary
as discharge is a harsher measure than extension of probation. For this, the guidelines are provided in
Regulation 46(v) where the satisfaction has to be recorded by indicating as to whether the work and
conduct of an employee is satisfactory or not. In addition thereto, the requirement is certification of
integrity and the third criteria is that the appointing authority should be satisfied that the employee has
otherwise successfully and satisfactorily completed his period of probation. Dr. Mishra contends that there
is only one recital in the communication that the work and conduct was not found to be satisfactory. He
submits that this recital in the communication is not born out from any such endorsement or expressed
opinion having been recorded by the appointing authority. He contends that on the submission of a report
for approval the appointing authority has to independently apply his mind and record his satisfaction may
be in a very few words to maintain brevity. In the instant case the appointing authority has not even
chosen to do that and has simply put his initials. He, therefore, submits that Regulation 46 has not been
complied with and the judgment relied on by the learned counsel for the respondents had only an
endorsement of signatures certifying approval cannot be a ratio applicable in the present case as there is a
different statutory provision with a clear requirement of recording satisfaction.
Before we proceed to deal with the aforesaid submission of Dr. Mishra it would be apt to comment
upon the status of the records as indicated above. We find that the letter of the Head of the Department
dated 2.5.2015 in relation to appraisal of performance for the period of probation recites that the integrity
of the petitioner was poor and this letter finds mention in the report dated 29.5.2015 submitted by the
Director for approval that has been counter signed with the initials of the President. In our considered
opinion, if this is treated to be a concurrence then it also certifies concurring with the endorsement of a
poor integrity of the petitioner in the letter dated 2.5.2015. However, at the same time in simultaneous
proceedings relating to the endorsement in the ACR, the Head of the Department endorses the column of
integrity as having not been tested. This ACR is also tested by the reviewing authority on 27.5.2015 and is
concurred expressly by the President who is the appointing authority on 1.6.2015 which is the same date
on which he has put his initials on the probation report dated 29.5.2015. (WORDS 490)
 Part 5 EXERCISE NO. 6

It is admitted case that the petitioner had applied for allotment of a flat in the above mentioned
scheme. The normal procedure of allotment of a flat has been prescribed in 1979 Regulation. Regulation
34, in unequivocal terms says that a plot/building shall be allotted by a lottery drawn publicly. It has also
been mentioned in the same Regulation that all the applicants shall be sent written information regarding
the place, date and time of the lottery and such information shall be made public by publishing the same in
news papers and promulgation through other similar sources. It is the admitted case of the petitioner that
she did not participate in the draw made through lottery and that her name and the disputed flat were
kept segregated. The main contention of the petitioner is that since the Housing Commissioner kept her
name and the disputed accommodation out of the drawl of lottery, it means that the disputed flat was
allotted to her and the Housing Commissioner and the respondent no.1 are bound under law to approve its
allotment in her favour. It is her further contention that the segregation process by itself means that the
respondent no.1 as well as the Housing Commissioner have decided that keeping in view her request the
said flat was allotted to her and giving an approval of the same is nothing more than a formality. This
contention has been vehemently opposed by the official respondents. They have categorically stated that
there were few more applications pending before the Housing Commissioner regarding the same flat and
after due consideration the Housing Commissioner took the decision that this flat should be exchanged by
flat No. L-410 which was allotted through lottery to private respondents.

Learned counsel for the petitioner Sri Satish Chaturvedi has argued that since the flat in question
was segregated for allotment in favour of the petitioner awaiting formal approval of the same, the flat in
question stood allotted in her favour. It has been further submitted that the decision taken by the Housing
Commissioner on 20.12.2006 to segregate the flat from normal mode of allotment and the fact that the
application of the petitioner was kept out of lottery draw simply means that the Parishad had actually
allotted the same in favour of the petitioner. It has been further submitted by Mr. Chaturvedi that the
allotment of the disputed flat in favour of the private respondents is bad as it was done under the orders of
the respondent No.3, who did not have any authority to pass such an order. It has also been argued from
the side of the petitioner that due to her difficulties and genuine need the petitioner had requested the
Chief Minister of U.P. for allotment of the particular flat which was duly considered by him and in this
background the Commissioner exercised his powers in favour of the petitioner. (WORDS 481)

In our opinion this argument does not have any force. From the perusal of Regulation 48 it is
evident that the law has given certain powers to the Housing Commissioner keeping in view certain
unforeseen contingencies and difficulties which may arise any time before the Parishad. It may be true
that the petitioner is living separately from her husband since long but she has the capacity to purchase a
HIG Flat in the Metropolitan City of Kanpur which indicates her reasonably good financial status also.
Therefore, one can not say that she is a poor lady having no means. From the records it is evident that the
husband of her real sister is the Provident Fund Commissioner of Uttarakhand State who too had
approached the officers of the Parishad with request that the disputed accommodation be allotted to the
petitioner. This fact is evident from the notings of the officers on various letters which are available on
record. It is also clear from the records that in the event of the death of the petitioner, her sister who is
the wife of the Provident Fund Commissioner will be her nominee. This by itself shows her good
relationship with the sister who is the wife of a very senior officer of a State and therefore it is clear that
the petitioner does not belong to the weaker section of the society.
 Part 5 EXERCISE NO. 7

The facts arising out of the present writ petition are that on the basis of advertisement made by
the respondent in the year 1989 for the purposes of appointment on the post of Constable, as the
petitioner was fully eligible to be considered and appointed, he submitted relevant documents and on the
basis of aforesaid document, petitioner was considered treating his date of birth as 15th November 1969.
The High School certificate issued by the Board of High School and Intermediate of the year 1983 was
submitted at that time. Petitioner on the basis of aforesaid appointment was working and the conduct of
the petitioner was always appreciated by the relevant authority from time to time. It appears that on the
basis of some complaint regarding various persons who have obtained the appointment claiming
themselves to be dependent of the employees working in the Department under the Dying in Harness
Rules, some investigation was made without any notice to the petitioner and it was found as alleged by the
respondent that in the certificate submitted by the petitioner of the High School the date of birth of the
petitioner is entered as 15.11.1965. Though in the certificate which has been submitted by the petitioner,
the date of birth is recorded as 15.11.1969.

The contention of the petitioner to this effect is that in case on the basis of some complaint if the
respondent was of the opinion that on the basis of some inquiry made thereunder the certificate submitted
by the petitioner was having some discrepancy or wrong date of birth according to respondent is entered,
the petitioner was entitled to have a show cause notice and opportunity. The appointment of the petitioner
cannot be cancelled without any notice and opportunity that too after completion of about 17 years of
service in the Police Department. In case the petitioner would have been given a liberty he would have
submitted a certificate issued by the High School Board which was submitted at the time of entrance in
service. Without any notice and opportunity to the petitioner, the order impugned dated 22.02.2008
cannot be passed. The petitioner has placed reliance upon a judgment of apex court reported in 1991 SCC
330 Shrawan Kumar Jha and others Vs. State of Bihar and others. On the strength of the aforesaid
decision, learned counsel for the petitioner submits that in case on the basis of some inquiry it was found
by the respondents that certificate submitted by the petitioner is not correct or they have come to the
conclusion that it is a forged certificate, the principle of natural justice has to be observed and no order
can be passed without any opportunity to the petitioner. The Division Bench of this Court has also held that
termination without any show cause notice or opportunity to defend has been held to be violative to the
principle of natural justice and has quashed the order of termination. (WORDS 490)

In Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta
and others reported in (1999) 3 SCC 60, the apex court has held that if finding has been arrived at an
inquiry as to the misconduct behind the back of the Officer without a regular departmental inquiry, the
same is not permissible on the allegation of fraud without any notice and opportunity the order passed by
the respondent is in violation of Rule 8 and 14 of the U.P. Police Officers of Subordinate Rank (Punishment
& Appeal) Rules, 1991. Rule 14(1) of the Rules provides initiation of proceeding which has to be adhered to
before passing the order of dismissal or cancellation of the appointment of the petitioner. Admittedly, no
notice and opportunity was ever given to the petitioner before passing the order impugned. As such, the
order impugned is liable to be quashed.
 Part 5 EXERCISE NO. 8

The petitioners contend that the Tribunal has committed an error by allowing the claim petition in
view of the fact that the claim of the respondent no. 2 had already been rejected as he himself had
voluntarily refused to take up the job of a Sweeper and, therefore, the respondent no. 2 cannot claim
compassionate appointment as a matter of right. It is further submitted that several reasons have been
given while passing the order that the vacancies were not available within the 5% quota and the
appointment on compassionate ground is not a matter of right and further respondent no. 2 and his family
was financially well off so as to provide enough aid and hence compassionate appointment was not
permissible in view of the guidelines framed by the Government Policy. Another reason given is that the
claim is on account of death of respondent no. 2 and, therefore, the compassion did not exist so as to give
rise to any claim.
Sri I.P. Srivastava submits that the answering respondent was prepared even to perform the job
of a sweeper and the appointment of the answering respondent was cancelled vide order dated 14 th
November, 1998, which is bereft of any reasons. He further submits that so far as the subsequent order
dated 4th July, 2002 is concerned, the same reflects non-application of mind, inasmuch, it does not even
refer to the earlier offer of compassionate appointment made by the respondents and further none of the
aforesaid contingencies are available for denying compassionate appointment as have been indicated
therein. He further submits that the answering respondent is even now prepared to accept the job of a
sweeper and his claim survives, inasmuch as he had approached the authority well within time.

Having heard learned counsel for the parties, it is evident that the claim for compassionate
appointment was made immediately after the death of the father of the answering respondent. The said
claim was processed and the appointment was offered to the respondent. It appears that another
application had been moved by the answering respondent on 22 nd May, 1998, which was also pending
consideration for being appointed as a Majdoor. The answering respondent appears to have made a
request to the authorities that he would be unable to perform the job of a sweeper due to fear of a social
boycott and, therefore, he may be offered the job of a Majdoor. The cancellation order of 14 th November,
1998 appears to have been made only after such request had been made. The said cancellation order
coupled with the subsequent rejection on 4 th July, 2002, were challenged by means of an application before
the Tribunal and the Tribunal after considering the submissions raised, allowed the claim of the petitioner
quashing the aforesaid two orders and the authority was directed to re-consider the applicant for
appointment on the post of Majdoor and in the interregnum period was also directed to allow the
respondent to continue as Safaiwala. (WORDS 497)

To our mind in view of the facts as disclosed, the Tribunal could not have directed for a
reconsideration of the appointment of the respondent on the post of Majdoor as there is no second choice
available in matters of compassionate appointment as held by the Apex Court in the case of State of
Rajasthan Vs. Umrao Singh, 1994 6 SCC 560. A perusal of the application moved by the respondent
subsequently on 24.9.1998 does not indicate that the respondent had surrendered his right to receive
compassionate appointment and had made a request to the authority to change his status on account of a
fear of social stigma being attached on working as Safaiwala. The respondent never wanted to surrender
his right of employment and wanted a resolution of the aforesaid apprehension in his mind. The same was
taken to be denial by the respondent to receive compassionate appointment and accordingly it was
cancelled on 14.11.1998. (words 156)
 Part 5 EXERCISE NO. 9

The respondent preferred a writ petition before the High Court of Judicature at Bombay, which
was ultimately allowed by the High Court by its judgment dated 27.7.2004. After briefly noticing the facts
of the case, the High Court accepted the finding of the Appellate Bench that the appellant had not left the
premises with the intention of staying with her brother permanently. The High Court also accepted the
finding of fact recorded by the First Appellate Court that the appellant had no share in the flat in Ashoka
Apartments and, therefore had no right to stay therein. However, the High Court was impressed by the
subsequent events, which were brought to its notice by a civil application. The subsequent events, which
impressed the High Court, were that the appellant's mother had died in the year 1976 and her sister-in-
law had also died in the year 1982. Her brother was residing permanently in Goa to look after the ancestral
family property. The learned Judge held that apart from the appellant all the others, who were earlier
residing with the appellant, had either expired or had settled down elsewhere and, therefore, the need of
the other family members did not survive. The High Court concluded that her brother being a bachelor, the
appellant has also inherited a share in his flat at Ashoka Apartments and thus became a co-owner having a
right to reside in the flat in Ashoka Apartments. Her brother, no doubt, was also a co-owner of the
premises since he owned the premises jointly with her late brother. In view of the fact that she, as a co-
owner, had a right to reside in the premises, her need of her own apartment did not survive. The High
Court, therefore, concluded that in the changed circumstances and subsequent events, which happened
during the pendency of the writ petition before the High Court, the need of the appellant did not survive
and, therefore the decree passed by the Appellate Court deserved to be set aside. Accordingly, the writ
petition was allowed and the eviction petition was rejected.
Having noticed the evidence on record and the findings recorded by the Courts below, we have
come to the conclusion that this appeal must be allowed. The finding of bona fide personal need recorded
by the Appellate Court is a finding of fact based on the evidence on record. We have considered the
evidence on record and we find that the finding recorded by the Appellate Court did not deserve to be set
aside. In fact, the High Court also was of the same view, but in the changed circumstances having regard
to the events that took place during the pendency of the writ petition, the High Court interfered with the
order of the Appellate Court. We hold that the High Court was not justified in doing so. It cannot be lost
sight of that the premises which the appellant required for her personal bona fide need belonged to her.
(WORDS 500)

Unfortunately, she suffered an accident and in the absence of any other grown up male member
in the family she was persuaded by her brother Lawrence to come and reside in his apartment which was
one of the flats in the Ashoka Apartment and which was owned by him and his brother Tito. After residing
there for several years, the appellant felt that she should not burden her brother any more and, therefore
wanted to shift to her own accommodation which was then in occupation of the respondent. The Trial Court
made much of the fact that the appellant had also pleaded her bona fide need of providing accommodation
to other members of the family. While doing so the Trial Court completely lost sight of the fact that apart
from the requirement of other members of the family, the appellant also required the premises for her own
accommodation. Thus, even if the other members of the family no longer required the premises, the
requirement of the appellant survived. She had every right to occupy her own premises and she could not
be told that she should share accommodation with her brother in another apartment. (words 194)
 Part 5 EXERCISE NO. 10

The background in which the dispute arose appears to be the availability of a huge amount of
funds for the Zila Panchayat from the State Finance Commission through the communication dated
27.02.2015. The Zila Panchayat had already passed resolution nos. 4 and 5 on 27.12.2014 for utilization of
the grants that were proposed to be made available to the Zila Panchayat for seventy eight projects. Part
of the grant was utilized on being approved after following the due process of tender and award of
contracts. For the other projects, the tenders and contracts are stated to have been approved by the
Chairman where after an advertisement was published in two local newspapers as well as other
newspapers of repute inviting tenders / bids. Permission was sought from the competent authority through
proper channel namely the Chief Development Officer and during this period a query was made by the
respondent no. 2 i.e. the Collector in relation to publishing of such tenders and award of contracts.
The petitioner urges that even before any reply could be submitted to the query, the District
Magistrate passed an order sitting in office on a second Saturday i.e. 08.08.2015, that is officially not a
working day, alleging that she had received some complaints that the funds are to be misutilized for award
of such contracts which have already being executed by adopting dubious methods of splitting the amount
of such contracts. She therefore imposed a restraint on the opening of the tenders through the order dated
08.08.2015 and 10.08.2015, appointing a three member committee to enquire into the said allegations. A
three member committee was accordingly appointed to make a fact finding inquiry with regard to the said
process having been adopted upon which the matter was inquired into and a report is said to have been
submitted. It is in this background that the Upper Mukhya Adhikari sent a letter dated 10.08.2015 stopping
the entire tender process pursuant to the impugned orders of the District Magistrate. A representation was
filed by the Chairperson alleging that this was being done on account of an alleged political rivalry and
personal malice, as the Chairperson had contested the election against Sri Rakesh Yadav, son of a minister
in the State Government Sri S.P. Yadav and, therefore, in order to impede the functioning and carrying out
of the execution work of the Zila Panchayat, this method was adopted and the District Magistrate /
Collector surrendered her jurisdiction in favour of such persons so as to annul the aforesaid tender
process. This writ petition was filed and an interim order for holding the tenders in custody was passed by
the Division Bench that had entertained the writ petition on 01.09.2015. The petition proceeded on the
aforesaid allegations and affidavits were exchanged. When the matter appeared before us, upon hearing,
learned Counsel and the Court were faced with the question with regard to the availability of the power
with the District Magistrate to proceed in the matter as indicated in our order dated 15.10.2015. ( WORDS
502)
 Part 5 EXERCISE NO. 11

Learned counsel for the petitioner submits that the plaintiff petitioner is 58 years' old lady who
had instituted suit for injunction in the year 2005 after having purchased the property by way of registered
sale deed in the year 2003. It is submitted that the plaintiff- petitioner had been bona fidely pursuing the
matter and there has never been any act on her part, which could even remotely suggest any mala fide
conduct on her part to delay the disposal of the proceedings. It is submitted that the plaintiff has been
bona fidely contesting the matter and the delay occasioned in filing of the written statement to the counter
claim was entirely due to lack of proper advise by the counsel for which plaintiff ought not to have been
punished. It is further submitted that even otherwise all evidence in connection with due execution of the
sale deed had already been placed on record and there was no occasion for either of the parties to file any
further evidence on account of acceptance of the written statement. It is submitted that grave injustice
would be caused to the plaintiff in case the written statement to the counter claim is not accepted, as all
such evidence led in this regard would not be liable to be considered in the absence of any written
statement to the counter claim. Contention, therefore, is that delay in moving of the written statement was
wholly bona fide and for any inconvenience caused, the defendant could have been compensated by
payment of cost.
Per contra, learned counsel appearing for the respondent submits that there was absolutely no
justification for accepting the written statement to the counter claim after expiry of 8 years and no
justifiable cause has been brought on record to accept the written statement to the counter claim. It is also
submitted that the provisions of Order 8 Rule 1 CPC clearly bars entertaining of such belated written
statement and therefore, there is no error in the orders passed by the courts below, which may require
any interference.
Having considered the respective submissions urged by learned counsel for the parties, this Court
finds that the plaintiff had filed the suit for injunction in respect of the property, which she had purchased
by way of registered sale deed dated 29.10.2003. A counter claim was filed in February, 2006 challenging
the sale deed itself. The court had proceeded to frame issues including the question of validity of the sale
deed and whether the defendant was the owner of the suit property. The parties have already led their
evidence and a clear stand has been taken by the plaintiff-petitioner that they do not intend to bring any
additional evidence on record, even if the written statement was to be accepted. From the materials
available on record, this Court finds that conduct on part of the plaintiff petitioner was not intended to
delay the proceedings nor was she to gain anything on account of non-filing of the written statement to the
counter claim. (WORDS 505)
 Part 5 EXERCISE NO. 12

Now coming to the second question, I am of the view that the appointment made on a post which
is not in accordance with law would not confer any right upon the incumbent either to hold the post or to
continue in service on such post in any manner. Mere length of service or lack of any fault on the part of
the employee concerned is not relevant inasmuch it is the observance of statutory provisions and not the
personal or individual act on the part of the parties concerned which would decide the rights of the persons
to hold the post. If a person does not possess the requisite qualification or is otherwise appointed on a
particular post in violation of the statute, he/she cannot claim to have a right to continue in service simply
because it has worked for a long time for the reason that estoppel does not apply against statute and any
appointment against the statute is void ab initio. Even, on the ground of sympathy, no such relief can be
granted since a Court of law is primarily concerned with rule of law consistent with constitutional provision
and mere sympathy, which is directly against the statute and constitutional provisions would be a case of
misapplication of the understanding of principles of equity and justice. It would be difficult to hold that an
action which would be contrary to statute has the effect of violating others' fundamental right of equal
opportunity of employment, can be equitable and sympathetic though it is otherwise unconstitutional. A
sympathy or equity which will result in upholding illegal and unconstitutional orders or acts can not be
considered to be within the four corners of principles of administration of justice in equitable exercise of
power under Article 226 of the Constitution. It would be a travesty of justice if we allow the concept of
sympathy or equity to influence the mind of the Court even when the action is ex facie illegal and
unconstitutional, violative of Article 16 (1) of the Constitution. Recently, the Apex Court has declined to
grant any relief to a person merely because it has worked for long time though did not possess requisite
qualification at the time of appointment in accordance with rules and the appointment is not in accordance
with the procedure prescribed.

Now coming to the third question, it is no doubt true that before passing the impugned resolution
and giving effect thereto, no opportunity has been afforded to the petitioner by issuing a show cause
notice, but the petitioner has been given extensive hearing before this Court to show whether her
appointment on the post of Assistant Teacher, Junior High School was valid and the arguments at length
have been heard. In view of the discussion made above, the only conclusion possible in the case in hand is
that the appointment of the petitioner on the post of Assistant Teacher, Junior High School was in the
teeth of the statutory rules and can not be sustained. (WORDS 502)

It is well known exception to the principles of natural justice, where no other view is possible than
what has been taken by the authorities, this Court would not interfere only on the ground of denial of
opportunity and violation of principles of natural justice. Whatever the petitioner could have stated in reply
to the show cause notice, had the same been given to the petitioner, has been argued before this Court at
length and, therefore, I do not find it a fit case to allow the parties to have another inning only on the
ground that show cause notice was not issued particularly when the petitioner having been given a
complete hearing before this Court on every aspect of the matter, does not show to have been prejudiced
in any manner otherwise. When the facts are admitted, statutory provisions are clear, merely because a
show cause notice was not issued, in my view, would not be proper for this Court to interference on this
ground.
 Part 5 EXERCISE NO. 13

We have given our thoughtful consideration to the various pleas raised by the parties. We are of
the considered opinion that it is not necessary for us to go into the question as to whether the President of
Nagar Palika Parishad can be said to be a person aggrieved by the order dated 30.3.2010 or not, or the
appeal is not maintainable as it has been filed against an interlocutory order as the present appeal itself is
liable to be dismissed on the ground that whatever material has been placed in the appeal can very well be
placed before the Hon'ble Single Judge as the scope of intra court appeal is limited to see the correctness
of the order passed by the Hon'ble Single Judge on the basis of material or evidence which is before him
and not on the basis of material or evidence which are filed along with the appeal by way of additional
evidence.

As held by the Hon'ble Supreme Court in the case of Shobha Devi (supra), a Letters Patent Appeal
as permitted under the Letters Patent, is normally an intra court appeal whereunder the Letters Patent
Bench corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such
is not an appeal against an order of a subordinate court. In such appellate jurisdiction, the High Court
exercises the power of a Court of Error. Therefore, we can, in exercise of appellate jurisdiction which is
being exercised in an intra court appeal, correct errors in the order of the learned Single Judge on the
basis of material which was on record before the learned Single Judge and not on such documents or
material which have not been placed before him, more so when the intra court appeal is against an ex-
parte interim order passed by the learned Single Judge.

It is true that in an intra court appeal additional evidence can be filed. In the case of Ram Prasad
(Supra), a Division Bench of this Court has held that though the provisions of Code of Civil Procedure are
not applicable to writ proceedings, the provisions contained in Rule 27 of Order XX of Civil Procedure Code
may be considered as general principle for admission of additional evidence in writ appeal. However, this
remedy is not available in all situations. It may be available where the learned Single Judge has decided
the writ petition after which he becomes functus officio except having the powers of review and therefore,
in such an eventuality the only remedy available to the aggrieved person is to bring on record the
documents by way of additional evidence after satisfying the requirements provided under Order 41 Rule
27 of the Code of Civil Procedure. However, in a case where an intra Court Appeal has been filed against
an ex-parte interim order, the appellant shall have an opportunity to file the documents which were not
before the learned Single Judge and which he wants to rely upon along with an affidavit in the pending
proceedings. (WORDS 508)

Otherwise it would give an occasion to consider the validity and correctness of the order passed
by the learned Single Judge on the basis of materials which were not before him at the time of the passing
of the order. Certainly the scope of the intra Court Appeal cannot be stretched to such an extent. In this
situation the right of filing additional evidence would not be available. That being the position, we are of
the considered opinion that the appellant should file the documents which are sought to be filed in this
Appeal as additional evidence before the learned Single Judge. If any documents are filed then the learned
Single Judge shall consider the same and pass appropriate orders in accordance with law. Subject to the
above observation the appeal stands dismissed.
 Part 5 EXERCISE NO. 14

The revisionist is one of the defendants in Original Suit No.352 of 2006. The suit was instituted by
the plaintiff-opposite party for mandatory injunction. The defendants in the said suit moved an application
69 Ga before the trial court pointing out that a matter arising out of Original Suit No.721 of 2005 is
pending before this Hon'ble Court, in which validity of Will dated 27.3.1985 on the basis of which the
plaintiff claims title to the suit property, is an issue under consideration. It was further pointed out that by
an order dated 13.11.2006 the instant suit was clubbed with Original Suit No.721 of 2005 and the said suit
was made the leading case. Consequently, it was prayed that since the leading case is pending before this
Court and, therefore, proceedings of Original Suit No.352 of 2006 be stayed. The application was opposed
by the plaintiff stating that there was no stay by any court to the proceedings of the instant suit.

The trial court, by an order dated 11.5.2015, rejected the application. Aggrieved thereby, some of
the defendants preferred application under Article 227 No.3830 of 2015 before this Court. The petition was
dismissed by order dated 18.8.2015 by noting that the defendants themselves admit that Original Suit
No.721 of 2005 stood dismissed and as such the application filed by them on the ground that the
proceedings of the instant suit are to be stayed during the pendency of the Original Suit No.721 of 2005,
was a misconceived one. However, liberty was reserved in favour of the defendants to move a separate
application raising plea of Section 10 C.P.C., in case they are so advised. In pursuance of the liberty so
granted, the defendants filed an application 73 Ga before the trial court for framing an issue relating to
applicability of Section 10 C.P.C. The trial court, after taking into consideration the objections filed by the
plaintiff, rejected the said application. In the order, it is noted that Original Suit No.721 of 2005 was
rejected, as the plaintiff did not pay the requisite court fee. The trial court further noted that no evidence
has been filed by the defendants to demonstrate that the said suit or any appeal arising out of order
dismissing the said suit is pending before any court of law. Consequently, it came to the conclusion that
Section 10 C.P.C. will have no application and rejected the application. The aforesaid order was not
challenged by the defendants, instead they filed another application 80 Ga for recalling the order dated
24.9.2015 and for taking fresh decision in accordance with the directions issued by this Court on
18.8.2015. The trial court has rejected the said application by order dated 2.12.2015 holding that no case
for recall of the order dated 24.9.2015 is made out and in case the defendant was aggrieved by the said
order, the same should have been challenged before the higher court. Aggrieved by the order dated
2.12.2015, instant revision has been filed under Section 115 C.P.C. (WORDS 501)

Learned counsel for the revisionist submitted that the trial court has failed to comply with the directions of
this Court dated 18.8.2015 in not framing an issue relating to applicability of Section 10 C.P.C. It is urged
that in such circumstances, the revisionist was justified in filing the application 80 Ga for recall of the order
dated 24.9.2015. He further submitted that an appeal against the order rejecting the plaint for non
payment of court fee is pending before this Court and thus, Section 10 C.P.C. will have full applicability in
the matter. Under Section 10 C.P.C., no court could proceed with trial of any suit in which the matter in
issue is also directly or substantially in issue in a previously instituted suit between the same parties. Thus,
for application of Section 10 C.P.C. it is necessary that there has to be a duly instituted previous suit
between the same parties in which the issue is directly and substantially the same. In the instant matter,
admittedly, as per the assertions made in paragraph 13 of the affidavit, the plaint of Original Suit No.721
of 2005 was rejected on ground of non payment of court fee. In para 14, it is stated that First Appeal
No.330 of 2008 is pending before this Court.
 Part 5 EXERCISE NO. 15

Learned counsel for the petitioner raised several issues and contended that the principles of
natural justice was violated with impunity. which caused prejudice to the petitioner and therefore, the
impugned orders stood vitiated. The learned counsel submitted that a show cause notice was issued for
the incident which occurred on 16.9.2007 whereas the petitioner has been expelled taking into account his
previous conduct and taking into account the intelligence report for which the petitioner was not put to
notice nor an opportunity to rebut the allegations made in intelligence report was given. The non-supply of
the intelligence report and by not providing an opportunity to rebut these documents seriously prejudiced
the petitioner which was in gross violation of the principles of natural justice. The learned counsel further
submitted that the intelligence report which was relied upon by the Disciplinary Committee was not signed
by any person and had been prepared subsequently and therefore, no cognizance on this report could be
taken into consideration by the Disciplinary Committee. The learned counsel further submitted that the
Circle Officer had certified that the petitioner was not involved in the destruction of the University and that
the petitioner was given a clean chit and was absolved from the incident which unfortunately had been
discarded by the Disciplinary Committee without assigning any valid reason. The learned counsel for the
petitioner further submitted that the resolution of the Executive Council was also liable to be quashed as it
suffered from various infirmities. The learned counsel submitted that the quorum of the Executive Council
was incomplete and therefore, the resolution of the Executive Council stood vitiated on account of the
mandatory non-compliance of having a proper quorum for holding a meeting. Further, the Vice Chancellor
not only chaired the meeting of the Executive Council but also participated in the deliberations and voted
for the resolution which action of the Vice Chancellor was totally illegal since it was his own order which
was challenged in the appeal. The learned counsel for the petitioner submitted that the Vice Chancellor
could not be a judge of his own cause and therefore, the resolution of the Executive Council stood vitiated
on account of this fatal error. In support of his submission, the learned counsel for the petitioner placed
reliance upon a decision of this Court in Daya Shanker Gupta vs. Aligarh Muslim University Aligarh and
others, (2014) 11 SCC 941.

On the other hand, Sri Shashi Nandan, the learned Senior Counsel submitted that the petitioner
raised no grievance against the intelligence report before the appellate authority and therefore, it was too
late for the petitioner to raise such technical infirmities which, in any case, was removed and that full
opportunity was given by the Grievance Committee to the petitioner to dispute the correctness of the
intelligence report. The learned counsel submitted that inspite of an opportunity being granted, the
petitioner could not point out any error in the intelligence report and that most of the allegations made in
the intelligence report was admitted by the petitioner. (WORDS 505)

The learned counsel submitted that even though the intelligence report was not supplied to the petitioner
by the Disciplinary Committee, nonetheless, the contents of the report had been supplied and that the
petitioner was cross-examined on this aspect and therefore, the learned counsel submitted that the
principles of natural justice was duly complied with. The learned counsel further submitted that the
intelligence report was duly signed by the officers who had prepared the report but for the reasons of
security, the names, were not disclosed when a copy of the intelligence report was given to the petitioner.
The learned counsel has placed the original intelligence report before the Court which the Court has
perused and finds that the said report has been signed by the persons, who had prepared it.
 Part 5 EXERCISE NO. 16

Sri G. K. Singh, learned counsel appearing for the petitioners submitted that after elections were
already approved by the District Inspector of Schools and no parallel Committee of Management was set
up by any rival claimant, the Joint Director could not have adjudicated on the validity of the elections set
up by the petitioners. He further submitted that the irregularities, if any, on which the election held on 31
March 2014 has been declared invalid, are not such on which the result of the election could be said to
have been materially affected. It has been submitted that according to the report of the post office since
the year 2011, certificate of posting was not being issued, therefore, apart from publication in newspaper,
agenda was circulated personally to the members who have signed in acknowledgment. Thus, there was
substantial compliance of the provisions of the Scheme of Administration with regard to the proper
publication of the election program and notice to the members of the General Body and, therefore, on the
said ground the election could not have been declared invalid. Further, the affidavit of Principal and alleged
25 members denying holding of elections was nothing but false as the alleged members were close relative
of rival group and so far as the Principal is concerned, a complaint was filed against him with regards to his
qualification, therefore, he made false allegations. It has been submitted that the representation was made
to the Joint Director of Education for removing the Prabandh Sanchalak and, therefore, the Joint Director
of Education was only required to see whether the continuance of the Prabandh Sanchalak was legally
justified in view of the fresh elections or not. It has been submitted that minor variation in the procedure
cannot be a ground to declare the election invalid unless a finding is returned that there is substantial non
compliance of the procedure.

Sri P.C. Pathak, who has put in appearance on behalf of respondent No.6 submits that the
respondent No.6 had submitted a detailed objection before the Joint Director of Education, in which various
grounds were taken to demonstrate that the elections set up on 31 March, 2014 were not valid and,
therefore, the prayer of the petitioners for removal of the Prabandh Sanchalak was liable to be rejected.
Sri Pathak further submitted that the last election of the Committee of Management was held on
12.10.2008. The term of the Committee of Management was five years and one month and therefore the
term of the Committee, even if assumed to be a valid Committee, stood expired in the month of November
2013, therefore, elections held in the month of March 2014 by the outgoing Committee, which had become
defunct, were completely invalid, inasmuch as elections could have been held only by a Prabandh
Sanchalak. Sri Pathak further submitted that from the records, it is clearly established that the Prabandh
Sanchalak was managing the affairs of the institution on the date on which the elections were held,
therefore, such elections could not have been held by the outgoing committee. (WORDS 509)

At this stage, it would be useful to observe that under the scheme of administration, the term of
the Committee of Management is five years with a grace period of one month. Clause 10 (a) of the
Scheme of Administration, provides that on expiry of five years, the officer bearers of the out going
Committee would continue for further period of one month and if, within the said period, fresh elections
are not held then the Committee of Management would become defunct and the Regional Joint Director of
Education would appoint a Prabandh Sanchalak for managing the affairs of the institution and to hold the
elections. Sri G. K. Singh, appearing for the petitioners, submitted that even though the election of the last
out going committee was held on 12.10.2008, but since the Committee was accorded recognition on
31.3.2009, the term of the Committee would commence from that date and, therefore, the term would
extend up to April 2014.
 Part 5 EXERCISE NO. 17

Sri P.N. Saxena learned counsel for the appellants contends that the procedure adopted by the
two Professors in declaring the result on a manual check of the OMR sheets is in contravention of the mode
prescribed which should have been done by the Computer Centre through a scanner. He submits that there
was no occasion for the two Incharge Professors to have undertaken the evaluation themselves manually.
He further submits not only this, the manner in which there has been a substantial change in marks of one
of the students and few minor changes in the case of six other students raises a serious suspicion and a
genuine doubt about the conduct of the two Professors, who undertook the exercise of change of answer
sheets manually. He further submits that there was no provision for any such re-checking or scrutiny and
the declaration of the list on 1.4.2010 was unsupported by any authority. It has further contended that the
learned Single Judge committed an error by accepting the submissions made by the respondents, which
was directly in conflict with the relief claimed by them. He submits that the respondents had clearly
questioned the correctness of the subsequent list and had prayed for admissions being made on the basis
of the first list published on 19.2.2010. Accordingly it is submitted that the learned Single Judge ought not
to have granted the relief as prayed for. Sri Saxena has further invited our attention to the application
moved in this special appeal making a prayer that an appropriate direction be issued to the University to
ensure transparency in holding of the examinations and the declaration of the results as well as evaluation
of the OMR sheets so that in case any student has any doubt, the same can be ascertained by adopting a
fair procedure.

Sri V.K. Singh, learned senior counsel for the University contends that the University may not
have filed an appeal against the impugned order, yet the University supports the cause of the appellants
and at the same time would abide by the orders of this Court. He however takes exception to the finding
and observations that were made by the learned Single Judge on the steps taken by the Vice Chancellor
and he submits that the Vice Chancellor in order to ensure fairness had taken a decision to cancel the
examinations on the asking of the candidates themselves. He further submits that prompt decision by the
Vice Chancellor was taken as he was wholly unaware about the two Incharge Professors having manually
evaluated the results who upturned the same through a revised list. He further informs the Court that the
Vice Chancellor was not made aware of any such action being taken by the two Professors and they did it
on their own without any authority. Accordingly, the Vice Chancellor immediately constituted an Enquiry
Committee and after having received the findings of the said Committee cancelled the examination in order
to ensure fair admission in the Post Graduate courses. (WORDS 500)

Sri Ashok Khare, learned senior counsel for the respondents has come with a case that as a
matter of fact there was an error of tabulation and even though the respondents-petitioners had initially
prayed for maintaining the selection on the basis of the first list, yet they were satisfied with the second
list and therefore, this Court may not interfere with the directions of the learned Single Judge, more so
when the admissions have already been completed within the time schedule given by the Apex Court.
Having carefully examined the record we may at the very out set clarify that in view of the specific
schedule fixed by the Apex Court for finalising of admissions for the allotted courses by 30.6.2010 we
would not prefer to disturb the admissions and issue directions for holding of a fresh examination. In our
opinion, this would violate the deadline fixed by the Apex Court in Writ Petition (Civil) No(s). 189 of 2010
Naval Asija and others Versus Union of India and others disposed on on 13.5.2010. The admissions as
intimated by the learned counsel having been completed, the same need not be disturbed at this stage.
 Part 5 EXERCISE NO. 18

It is submitted that the petitioner filed a review petition, which was rejected by learned Single
Judge, against which the petitioner has filed a Special Appeal Defective No.402 of 2013, which is still
pending. He submits that in view of the aforesaid, the order of punishment has become final which
includes the recovery of the amount and which is sought to be recovered by a procedure provided in the
Rules, which is retrospective in nature. The procedure and the method of recovering the amount does not
give any substantive right to the petitioner on the basis of which he may challenge the recovery
proceeding. Shri Shrikant Shukla further submits that in pursuance to a Public Interest Litigation filed in
Lucknow Bench of this Court an enquiry was made with regard to serious irregularities in shortage and
distribution of food grains in which an investigation was conducted by the Special Investigation Team of
the State Government and in which these godowns were also involved. Large scale irregularities have been
found in the investigation. Large quantities of food grains were found to be transported through trucks,
whereas the registration number of the vehicles were found to be of scooters and motorcycles. He submits
that the Court should not interfere and relegate the petitioner to file an appeal, and that since the
petitioner has not submitted adequate security in compliance with the orders passed in Writ Petition
No.57919 of 2011, the writ petitions be dismissed.

We have considered the arguments and find that the departmental enquiry was conducted in
gross violation of principles of natural justice, which are incorporated in the Model Conduct Discipline &
Appeal, Rules 1992, applicable to the Corporation. Though the charge sheet was submitted prior to the
retirement of the petitioner, and the enquiry could have continued, the charges of lack of administrative
and financial supervision would have required a detailed enquiry in which the petitioner was required to
participate. The enquiry report was not served on the petitioner. Out of 36 charges, only charge nos. 7, 14,
20, 23 and 36 related to financial irregularities on which the findings are cryptic and vague. The
disciplinary authority has merely reiterated the charge and the finding of enquiry officer, without
discussing the enquiry report and the reply given by the petitioner to the charge. We have looked into each
of the charges and find that in none of the charges the petitioner was held responsible for misappropriation
mis-utilisation or embezzlement of the food grains or the property of the Corporation. The allegations in
the charges were with regard to lack of supervision and control and in failing to carry out regular
inspections. There was no immediate report of any shortage in the godowns. In the special audit report of
the year 2004-05, dated 9.1.2006 it was found that there were some discrepancies in the stock in the
godowns which related to the period when the petitioner was posted as Incharge of the godowns. (493)

In the punishment order these shortfalls have not been directly attributed to the petitioner. The imputation
in the charges is of lack of administrative and financial control. The entire punishment order is vague,
sketchy and does not fix responsibility of any losses on any person including the petitioner, nor does it
apportion the liability. The losses are presumptive in nature and the responsibility is deemed to be fixed on
those who were in administrative control of the godowns. Out of the five charges of financial irregularities,
only charge no.14 appears to be of serious in nature in which the financial loss of Rs.49,20,276.67 is
attributed to the petitioner. A perusal of the allegations in charge no.14 would show that the petitioner was
held responsible for lack of supervision over the godowns on account of which the loss was caused, which
was detected in the special audit.
 Part 5 EXERCISE NO. 19

The State of UP in exercise of its power under Section 110 of U.P. Panchayat Raj, 1947 enacted
the U.P. Panchayat Raj Rules, 1970 which provide for the preparation of family register which is popularly
known as Kutumb register. Rule 2 of the aforesaid Rules provides for preparation of Kutumb register in
Form 'A' containing family wise names and particulars of all persons ordinarily residing in the village. These
entries are to be made quarterly. All the changes made in the Kutumb register are to be ratified by the
Gram Panchayat in the next meeting. The object behind maintaining the Kutumb register under the
aforesaid Rules is to maintain a list of all persons who are ordinarily resident in the area of the Gram
Sabha to be recorded family wise. Therefore, entry in the Kutumb register may be a conclusive proof of a
fact that a person whose name appears therein is a resident of the village and belongs to a particular
family but as its purpose is not to maintain the record of date of birth or death of a person it can be a
conclusive proof about the date of birth or even the death of a person whose name happened to be
recorded therein though it may form a piece of evidence. Such date of birth or death could have been
proved conclusively by producing a certificate of registration under the Registration of Births and Deaths
Act, 1969. No such certificate of registration under the above Act either with regard to the date of birth of
Smt. Suchita Patel or of the death of her mother Smt. Sakhi Devi was produced, which could have been
the most authentic document to establish the date of birth of the respondent Smt. Suchita Patel or of the
date of death of her mother.

A perusal of the above Kutumb register reveals that it contains the names of all family members
of Jokhan Ram but it does not mention the name of the respondent Smt. Suchita Patel therein. It records
the date of death of Smt. Sakhi Devi as 15.10.1984 and as such if Smt. Suchita Patel was born earlier her
name ought to have appeared in the Kutumb register which is conspicuous of her absence. Besides the
above, the date of birth of all family members recorded in the Kutumb register happens to be 1st of
January of the year concerned. This itself proves that the Kutumb register was not maintained for the
purposes of recording exact/actual date of birth or death of the persons mentioned therein but only for
recording the names of the family members. Moreover, no evidence was produced to show as to under
whose orders and when the entry of the date of death of Smt. Sakhi Devi was made in the Kutumb
register. There is no evidence to prove that her date of death was recorded in the year 1984 or
immediately thereafter. Thus, the aforesaid Kutumb register cannot be regarded as a reliable document to
prove even the date of death of her mother. (WORDS 509)

The father of the respondent Smt. Suchita Patel had applied for the correction of her date of birth vide
application dated 5.2.2006 and the application mentions that in support of the correction prayed for, a
copy of the Kutumb register is being enclosed. The alleged enclosed copy of the Kutumb register, on
closure examination reveals that it was issued on 17.2.2006 and as such it was not possible for her father
to have enclosed it with the application dated 5.2.2006. This being the over all position with regard to the
Kutumb Register which has been made the foundation for seeking change in the date of birth of the
respondent Smt. Suchita Patel, I am of a definite view that such a document cannot be of any trustworthy
evidentary value to prove the actual date of birth of the respondent Smt. Suchita Patel. An attempt has
been made to justify the death of respondent's mother on 15.10.1984 by producing a certificate of the
doctor who was also produced as a witness in support thereof. However, the said certificate of the doctor
was never made the basis for any claim that the mother of the respondent died on 3.7.184 before any of
the authorities concern.
 Part 5 EXERCISE NO. 20

The petitioners are aggrieved by the exclusion of the names of 239 members from the list
finalized by the Election Officer. According to the petitioners, these 239 members had been validly inducted
and there was no justification for the Election Officer to exclude their names. The petitioners claim to have
filed objections to the tentative list and also before the Assistant Registrar, the Vice-Chancellor of the
University and the District Inspector of Schools after the elections were held and the result was declared.
The grievance is that the Vice-Chancellor of the University and the District Inspector of Schools completely
ignored the objections filed against the finalization of the voters list while granting approval to the
Committee of Management of the Post Graduate College and the Intermediate College.

Before examining as to whether the objections were required to be considered, it will be

appropriate to first ascertain whether the objections had at all been filed before the Vice-Chancellor of the
University or the District Inspector of Schools because an objection has been raised by the respondents to
this effect. A perusal of the objections indicates that they were addressed to the Assistant Registrar for
setting aside the elections held on 15th February 2015. Copy of the representation was sent to both the
Vice Chancellor of the University as also the District Inspector of Schools for information and necessary
action at their end. This objection was received in the office of the Vice Chancellor and the District
Inspector of Schools as the endorsements indicate. It cannot, therefore, be said that the objections had
not been served. The dispute, therefore, is not as to whether the objections were actually received in the
office of the Vice-Chancellor and the District Inspector of Schools but whether they were required to be
considered before a decision was taken on the validity of the elections held for the Post Graduate College
and the Intermediate College.

It needs to be noted that three elections were held in regard to the Society, the Post Graduate
College and the Intermediate College. The Assistant Registrar could take a decision only with regard to the
Society. The Vice-Chancellor of the University and the District Inspector of Schools were required to take a
decision with regard to the elections held for the Post Graduate College and the Intermediate College.
What also needs to be noted is that objections had to be examined in view of the directions issued by the
Court on 19th December 2013. Since the main issue that was raised by the petitioners before the Assistant
Registrar was with regard to the finalization of the list of members and the same objection was to be taken
before the two authorities, a copy of the same could have served the purpose, if the same objection was
required to be taken before the two authorities for taking a decision. The endorsement on the copy meant
for the Vice-Chancellor of the University and the District Inspector of Schools also specifically stated that
necessary action should be taken at their end. (WORDS 506)

The learned Judge found that separate objections were not filed before the Vice Chancellor of the
University and the District Inspector of Schools and it is for this reason that the learned Judge observed
that the Vice-Chancellor of the University and the District Inspector of Schools were not required to decide
the representations. In fact, the learned Judge drew a fine distinction between the representations raising
a grievance about the exclusion of 239 members and an objection regarding finalization of the voters list.
The exclusion of 239 members is directly linked to the finalization of the voters list as it seeks to exclude
these 239 members. It cannot, therefore, be said that the petitioners had not raised any objections against
the finalization of the voters list because they had specifically raised objections regarding the exclusion of
239 members.
 Part 5 EXERCISE NO. 21

The petitioner has prayed for issuing a mandamus to the respondents to consider his
regularization on the post of Assistant Accountant and further to pay arrears of salary of the said post. The
petitioner has also assailed the order dated 6 February 2014 passed by the U.P. State Public Service
Tribunal, Lucknow. The petitioner had claimed his regularization on the post of Assistant Accountant on the
basis of long officiation on the said post. It was stated that his case was also recommended by the Project
Manager for regularization on the post of Assistant Accountant vide letters dated 4.1.1990 and 8.12.1990.

Mr. Shishir Jain, learned counsel for the respondents 1 and 2 has raised objection against the
maintainability of the writ petition on the ground that the petitioner had sought the regularization on the
post of Assistant Accountant earlier by filing a writ petition being writ petition No. 3158 of 2014 before this
Court. This Court vide order dated 7 July 2014 dismissed the writ petition on the ground that the petitioner
had earlier approached the State Public Service Tribunal by filing a claim petition seeking a direction for his
regularization of his service on the post of Assistant Accountant w.e.f. 1.12.1990 and further for payment
of salary of the said post with all consequential benefits. The learned Tribunal had allowed the Claim
Petition and issued direction to the respondents to consider his case for appointment/regularization on the
post of Assistant Accountant whereas the petitioner's claim was rejected by the respondents on the ground
of non availability of post of Assistant Accountant vide order dated 20.8.2007. Since the department had
not considered his case for regularization, he had filed a Contempt Petition being Contempt Petition No. 41
of 2014 before the Tribunal for compliance of its order, which was dismissed being barred by time but the
order passed by the Tribunal was not challenged. Therefore, the learned Single Judge has dismissed the
writ petition.

It has been submitted that since the relief sought by the petitioner for regularization as well as for
payment of salary against the post of Assistant Accountant had already been dealt with by the learned
Single Judge, there is no reason for this Court to entertain the writ petition for the same very relief again.
Insofar as the order dated 6.2.2016, passed by the Tribunal in Contempt matter is concerned, the learned
Tribunal has observed that since no post of Assistant Accountant in general category was vacant, the
petitioner could not be appointed and accordingly his representation was disposed of, therefore, there was
no error in the order. Mr. Jain has further submitted that the learned Tribunal vide order dated 17.2.1998
passed in Claim Petition No. 2252 of 1995 had allowed the claim petition with direction to the petitioner to
accept the appointment on the post of Messenger and the respondents were directed to consider his case
of regularization on the post of Assistant Accountant in due course in accordance with Rule in the light of
observations made by the Tribunal in the judgment. (WORDS 508)

The facts of the case reveal that the petitioner being appointed as Messenger was allowed to work as
Office Assistant, but there was no order of appointment issued appointing the petitioner as Assistant
Accountant. Pursuant to the order passed by the Tribunal, the petitioner was offered the post of
Messenger, but he declined to accept it, rather he claimed his appointment directly on the post of Assistant
Accountant on the basis of his continuous working as such, whereas he had failed to establish his any kind
of appointment on the said post. That apart, the petitioner had claimed his regularization on the basis of
his working for more than ten years on the post of Assistant Accountant in the light of judgment of the
Hon'ble Supreme Court rendered in the case of State of Karnataka versus Uma Devi, 2006(4) SCC 1 as
well as the order passed by the Coordinate Bench of this Court in writ petition No.267 (SB) of 2011, in
which the petitioner was made entitled to be considered for regularization.
 Part 5 EXERCISE NO. 22

The sole question which arises for consideration is whether if an order of appointment is procured
by playing fraud then whether such an appointee can be held to be a holder of a civil post in order to seek
protection under Article 311 of the Constitution and can be subject to regular departmental inquiry under
the provisions of the Rules governing his service conditions or the appointment being void ab initio is liable
to be cancelled without following the procedure prescribed for dispensing with the services. In the present
case also, the appointment was obtained by the petitioner on the basis of a caste certificate certifying him
to be a member of a Scheduled Tribe to which he did not belong. Thus, the very basis of the appointment
of the petitioner was gone and the appointment was void ab initio. The argument of the learned counsel for
the petitioner that he had applied for the certificate disclosing his caste as 'nat' and had filed the certificate
as was issued to him by the authorities and thus, there was no question of any fraud having been
committed by him is worthy of no credence. The assertion of the petitioner in this regard is his own
without any verification from the authorities, inasmuch as on account of the non-availability of the records
with the authorities, the veracity of the application made by him for issuing a caste certificate could not be
certified. In the absence of any material, it is hard to believe that the authorities would have issued an
incorrect caste certificate to the petitioner.

It is too much of coincidence to believe that a certificate was issued certifying him to be a
member of the Scheduled Tribe wrongly and the post for the said reserved category was also available and
he was appointed extending the benefit of reservation. The petitioner has nowhere disputed that 'nat'
caste is not notified as Scheduled Caste but what he alleges is that the authorities issued him a certificate
of Scheduled Tribe without his involvement in any manner and the same was filed by him along with the
application form. In any view of the matter, the petitioner got an appointment on a post reserved for
Scheduled Tribe, though he did not belong and thus, the very foundation of his appointment collapsed and
cannot be said to be a legal and valid appointment in the eyes of law. In the case of Bank of India Vs.
Avinash Dayal, 2005 (7) SCC 690 where an employee got an appointment in 1976 on a post which was
reserved for a member of Scheduled Tribe and subsequently the caste certificate was invalidated by the
scrutiny committee in 1987, which led to the termination of service. In the present case, the petitioner
though not a member of the Scheduled Tribe, usurped the post which should have been filled in by
appointment of a member of said caste and thus, he was disqualified to hold the post and appointment
was void from its very inception. (WORDS 505)

The order cancelling the appointment also cannot be said to be in violaiton of principles of natural
justice, as suggested by the learned counsel for the petitioner, inasmuch as a show cause notice was
issued and the reply submitted in response thereof has been taken into account by the authority while
passing the impugned order. Thus, the requirements of the principles of natural justice were fully followed
and the order cannot be said to have been passed in violation thereof. For the facts and reasons discussed
above, both the writ petitions are devoid of any merits and, accordingly, stand dismissed. However, in the
facts and circumstances, there shall be no order as to costs.
 Part 5 EXERCISE NO. 23

In pursuance of the order of the learned Single Judge, the District Magistrate passed an order
dated 15 June 2010 terminating the services of the eight persons who had been granted regular
appointment. After a fresh exercise was carried out, the appellants filed a fresh writ petition. That writ
petition was disposed of by a learned Single Judge by an order dated 5 July 2011. The learned Single
Judge observed that once 50% posts were required to be filled up from amongst Seasonal Collection Peons
and sixteen posts were still lying vacant, the Collector would have to undertake a fresh exercise for filling
of those posts in accordance with the Rules of 2004. In pursuance thereof, it is not in dispute that all the
appellants were regularized on 13 March 2012. The appellants filed a writ petition being Civil Misc. Writ
Petition No. 63049 of 2011 seeking payment of their salary for a period of two years eight months and
fourteen days between 1 October 2007 and 15 June 2010.
A counter affidavit was filed on behalf of the State to the writ petition. Specifically with reference
to the averments contained in paragraphs 28 and 29 of the writ petition, it was stated that following the
interim order dated 25 January 2006 passed in Writ Petition No. 4880 of 2006, the payment of salary to
the appellants was stopped. However, as the writ petition was dismissed in default on 2 May 2007, they
were paid their salary from the date of appointment upto 30 September 2007. The writ petition was
restored on 13 August 2007. Following this, between 1 October 2007 to 15 June 2010 no salary was paid
as no permission or order was obtained of the learned Single Judge of this Court and the matter was sub
judice. Hence, according to the State, the District Collector terminated the services of the appellants on 15
June 2010 and since no direction was issued in the order of the learned Single Judge for the payment of
salary during the pendency of the writ petition, the appellants were not paid their salary from 1 October
2007 to 15 June 2010 awaiting the final verdict of the Court.
At the outset, we may indicate that we are not accepting this submission for the payment of
salary to the appellants as regular Collection Peons during the aforesaid period. The order of appointment
dated 19 December 2005 was a subject matter of a writ petition in which an interim order was passed by
the learned Single Judge on 25 January 2006 that the appellants herein shall not be allowed to join or if
they have already joined, they shall not be paid their salary. The orders of appointment of the appellants
were set aside by the judgment of the learned Single Judge dated 6 May 2010. There was no direction in
the judgment of the learned Single Judge for the payment of salary to the appellants as regular Collection
Peons during the pendency of the writ proceedings. (WORDS 503)
 Part 5 EXERCISE No. 24

The Labour Court answered both the questions in affirmative and made an award that the
increased emoluments to the second category of workmen will become payable from 1.10.1983. The
correctness of the said award was challenged in a writ petition filed by the appellants. The learned Single
Judge of the High Court while deciding the writ petition held that the settlement dated 3.9.1979, which
became effective from 1.10.78 having been acted upon and during the subsistence of the settlement, the
reference could not have been made and moreover the parity claimed in the emoluments to be paid to the
workmen and the ministerial staff forming separate categories cannot be drawn and, therefore, enhancing
the remuneration from 1.10.1983 is untenable and allowed the writ petition by setting aside the award
made by the Labour Court and rejecting the reference made by the Government. On an appeal, the
Division Bench of the High Court reversed the decision of the learned Single Judge and restored the award
made by the Labour Court. Hence this appeal.
The view of the learned Single Judge is commended for acceptance by the learned counsel for the
appellants. Undoubtedly, the legal position is that during the subsistence of a settlement, it is not open to
any of the parties to raise a dispute. A settlement once entered into between the parties shall be operative
until the same is terminated as provided in Section 19 of the Industrial Disputes Act, 1947. The object of
such a provision is to ensure that once a settlement is entered into, then industrial peace prevails between
the parties during the period agreed upon. The same position should continue by extension of the
settlement by operation of law. There is an option given to either party to terminate the settlement and
such a course having not been adopted in the present case, the dispute could not have been raised by the
parties. But in an appropriate case, the Government may make a reference under the Act on the ground
that since the settlement was entered into, there has been material change in the circumstances. In the
present case, the Labour Court noticed such a situation arising as a result of the second settlement
entered into with the workmen that is the third category of employees. In the original settlement between
the parties, there has been no provision of working in the mills all seven days in a week nor was any
provision made in regard to higher emolument applicable to either class of workmen. The Labour Court
noticed that a gardener who had been categorized as a member of the staff coming under category two
could get less emoluments than his helper who comes under category three and, therefore, in those
special circumstances in view of the change in the working conditions, the Labour Court gave relief to the
employees coming under second category but from a date on the expiry of the agreed settlement entered
into by the parties. (WORDS 496)

Section 19 of the Act limits the variation of settlement but if there has been any material change
in the circumstances available in the establishment of an employer certainly such a situation can not be
ignored altogether to state that settlement alone should be adhered to whatever be the situation. If such a
settlement cannot be worked out in a congenial atmosphere between the workmen and the employer it will
be difficult to maintain industrial peace and these aspects are to be borne in mind by the Labour Court. We
do not think that such considerations would be altogether irrelevant in giving the relief as sought for by the
respondents and to deny the same on the short ground of reference not being maintainable. Secondly, on
the question whether there should be parity in payment between the employees working in the
establishment in different categories, ultimately what decides the matter is a sense of fairness in providing
different scales of pay. (words 161)
 Part 5 EXERCISE No. 25

In reversing the order of acquittal and passing the impugned order, the High Court first
reappraised the evidence in the light of the above findings and demonstrated that each of them was
perverse. It then considered the evidence of the three eye witnesses to ascertain whether it could be
safely relied upon to base a conviction. On such consideration, the High Court found that PWs 1 and 2 were
the most probable and natural witnesses and that their evidence was credit worthy. The High Court
however left the evidence of PW 3 out of consideration as he was not an independent witness. The High
Court further found that the evidence of PW 1 stood fully corroborated by the FIR, which was lodged within
half an hour of the incident and that the evidence of both PWs 1 and 2 stood corroborated by the medical
evidence. This being a statutory appeal, we have carefully perused the evidence adduced by the
prosecution particularly that of PWs 1 and 2 keeping in view the judgments of the learned Courts below
and we are constrained to say that none of the grounds canvassed by the trial Court to acquit the
appellants, can be sustained. The contradictions, which persuaded the trial Court to disbelieve the eye
witnesses related to their omissions to make certain statements before the Investigating Officer, which
they made before the Court. On perusal thereof, we find that the omissions were so minor and insignificant
that they did not amount to contradictions at all.

As regards the comment of the trial Court that the prosecution made no attempt to dispel the
anomaly about the place where the deceased was attacked and his dead body was found, we are in
complete agreement with the observations of the High Court that the above comment was the outcome of
non-consideration of the evidence. According to the evidence of P.W.6, the dead body of deceased was
found lying near the pagdandi. The evidence of the prosecution witnesses thus clearly proves that
deceased met with his death at the place where his dead body was lying. The finding of the trial Court in
this regard must, therefore, be said to be perverse. In our opinion, neither the criticism of the trial Court
nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site
plan, the Investigating Officer can certainly record what he sees and observes that it will be direct and
substantive evidence being based on his personal knowledge but as he was not obviously present when the
incident took place, he has to derive knowledge as to when, where and how it happened. When a witness
testifies about what he heard from somebody else, it is ordinarily not admissible in evidence being hearsay
but if the person for whom he heard is examined to give direct evidence within the meaning of Section 60
of the Evidence Act, the former's evidence would be admissible to corroborate the latter in accordance with
law. (WORDS 503)

However, such a statement made to a Police Officer, when he is investigating into an offence in
accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the
maker thereof in view of the embargo in Section 162 (1) Cr.P.C. appearing in that chapter and can be used
only to contradict him in accordance with the proviso thereof except in those cases where sub-section (2)
of the section appeals. That necessarily means that if in the site plan, P.W.6 had even shown the place
from which the shots were allegedly fired after ascertaining the same from the eye witnesses it could not
have been admitted in evidence being hit by Section 162 Cr.P.C. It would be extremely improbable for the
injury which was received by the deceased to have been caused on that part of the body where it had
been actually caused if the deceased was at the place marked on the map. (WORDS 162)
 Part 5 EXERCISE No. 26

The learned counsel for respondent contended that once arguments are commenced, there could
be no re-opening of evidence or recalling of any witness. This contention is raised by extending the
convention that once arguments are concluded and the case is reserved for judgment, the Court will not
entertain any interlocutory application for any kind of relief. The need for the Court to act in a manner to
achieve the ends of justice does not end when arguments are heard and judgment is reserved. If there is
abuse of the process of the Court or if interests of justice require the Court to do something or take note of
something, the discretion to do those things does not disappear merely because the arguments are heard
either fully or partly. The convention that no application should be entertained once the trial or hearing is
concluded and the case is reserved for judgment is a sound rule but not a straitjacket formula.
There can always be exceptions in extra-ordinary circumstances to meet the ends of justice and to
prevent abuse of process of Court subject to the limitation recognized with reference to exercise of power
under Section 151 of the Code. In this case, the applications were made before the conclusion of the
arguments. Neither the trial Court nor the High Court considered the question whether it was a fit case for
exercise of discretion under Section 151 or Order 18 Rule 17 of the Code. They have not considered
whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues
or lead to a just and effective adjudication. Both the Courts have mechanically dismissed the application
only on the ground that the matter was already at the stage of final arguments.

The appellant-defendant has taken a consistent stand in his reply, written statement and evidence
that the agreement of sale was executed to secure a loan of Rs.1,50,000/- as the respondent insisted upon
execution and registration of such agreement. If after the completion of recording of evidence, PW-1 and
PW-2 had admitted during conversations that the amount paid was not advance towards sale price, but
only a loan and the agreement of sale was obtained to secure the loan that would be material evidence,
which came into existence subsequent to the recording of the depositions having a bearing on the decision
and will also clarify the evidence already led on the issues. According to the appellant, the said evidence
came into existence only on 27.10.2008 and he prepared the applications and filed them at the earliest. As
the defendant could not have produced this material earlier and if the said evidence would assist the Court
to consider the evidence in the correct perspective, it was a fit case for exercising the discretion under
Section 151 of the Code. The Courts below have not applied their minds to the question whether such
evidence will be relevant and, therefore, the order calls for interference. (WORDS 497)

We may add a word of caution. The power under section 151 or Order 18 Rule 17 of the Code is
not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of
various amendments to the Code to expedite trials. But where the application is found to be bona fide and
where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the
issues and will assist in rendering justice, and the court is satisfied that non-production earlier was
for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the
fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic.
The court should firstly award appropriate costs to the other party to compensate for the delay.
Secondly the court should take up and complete the case within a fixed time schedule so that the delay is
avoided. (words 168)
 Part 5 EXERCISE No. 27

From the material brought on record of the writ petition, it appears that a copy of the instrument
in question fell for scrutiny before the Sub Registrar, Gautambudh Nagar who on 7 December 2012 put up
a note for consideration of the second respondent asserting therein that the instrument was in respect of a
property, which had been valued at agricultural rates. In the opinion of the Sub Registrar, the property
comprised in the instrument was liable to be taxed @ Rs. 6,500/- per square meter being the circle rate
prescribed by the second respondent for residential properties. Consequently, the Sub Registrar opined
that the instrument should be subjected to additional stamp of Rs.7,14,650/-. Taking note of the aforesaid
report, the second respondent assumed jurisdiction and issued a notice dated 30 August 2012 informing
the appellant that proceedings in respect of the adequacy of stamp duty paid on the instrument in question
were pending before him and that prima facie it appears that the appellant has evaded stamp duty to the
extent of Rs.7,14,650/-. This notice accordingly called upon the appellant to participate and show cause
why additional stamp duty together with penalty be not imposed upon him. The appellant filed his
response in the proceedings on 28 December 2012. During the pendency of the proceedings, he is stated
to have gifted the property comprised in the instrument to his wife Smt. Vijaya Jain on 17 December 2012.

During the course of the proceedings before the second respondent, an order came to be passed
on 23 October 2013 calling upon the Sub Registrar to conduct a fresh site inspection of the property and
submit an actual status report. Pursuant to the aforesaid order, the Sub Registrar is stated to have
submitted a report dated 16 November 2013 recording therein that the property in question appeared to
have been put to use as farm land. The second respondent upon a consideration of the material before him
has proceeded to hold that the land in question falls in the vicinity of the Greater NOIDA industrial
development area where land is largely being used for residential and commercial purposes. He proceeded
to hold that bearing in mind the area of the property, it was not possible to be utilized for agricultural
purposes and that the appellant himself owned no premises in the vicinity of the land in question, which
may lend credence to the contention that the property was to be utilized for agricultural purposes only. On
a consideration of the aforesaid facts, the second respondent accepted the initial report submitted by the
Sub Registrar on 7 December 2012 and proceeded to pass the order which was impugned in the writ
petition. The order passed by the second respondent against Smt. Vijaya Jain, was subjected to challenge
in a writ petition which too came to be dismissed by the learned Single Judge on the ground that she had
an equally efficacious remedy of filing an appeal under Section 56 of the Act. (WORDS 499)
 Part 5 EXERCISE NO. 28

In the rejoinder affidavit filed by the petitioner against the contentions raised in the writ petition,
he denied the averments made in the counter affidavit and stated that no demand notice was given to the
petitioner nor the allotment cancellation order dated 23.8.2006 was ever given to the petitioner and no
such documents have been annexed with the counter affidavit and hence the cancellation order was not in
the knowledge of the petitioner and is denied. The cancellation order was never served upon the petitioner,
only a communication regarding the said order was given by respondent no. 2 on the basis of which he
immediately applied for recall of the cancellation order on 24.8.2006. Since respondents no. 2 and 5 were
not considering the recall of the cancellation order and were planning to take possession of the property of
the petitioner and thus he had to file the writ petition. It is apparent that they delayed the decision on
recall application deliberately and hence they cannot claim any extra-charges from the petitioner except
those provided in Clause 11 of the Brochure. It is further submitted that there is no Government Order
dated 20.11.1999 on record and in the Brochure there is no provision that once an allottee defaults in
payment of installment, the casting guidelines of the Government Order dated 20.11.1999 shall be applied
to his case and the conditions given in para 11 of the Brochure has become redundant. Therefore, the
petitioner cannot be compelled to pay charges beyond the scope and ambit of Clause 11 of the Brochure.
It is further contended that why the prevailing rate on 9.10.2006 was taken into consideration when
Clause 11 of the Brochure did not provide the same, which has not been explained by the respondents. It
is further provided that according to Clause 11 of the Brochure, if the highest bidder/auction purchaser
wants restoration of the cancellation order within one month from its cancellation, then he is required to
deposit the entire due amount with panel interest and 7% restoration charges of the value of the land and
thereafter an order of restoration of his allotment order shall be passed and the remaining cost of the plot
shall be payable as per the terms and conditions agreed earlier.

From the contentions raised in the accompanying affidavit to the writ petition, in the counter
affidavit and rejoinder affidavit the main controversy which arises in the present writ petition is whether
the parties who have entered into an agreement as per contentions of the petitioner vide Annexure 2 and
it is not denied by the respondents whether the parties of the contract or agreement are bound by the
terms of the agreement as they were on the date of the execution of agreement i.e. 1.2.2005. Annexure 2
of the writ petition is the agreement executed between the parties. Admittedly the agreement was
executed in between Meerut Development Authority and the petitioner, a copy of which is annexed as
Annexure 2 to the writ petition. (WORDS 501)

It is nowhere stipulated in the agreement ( Annexure 2 to the writ petition ) on record that the
market value or the circle rate which shall from time to time be settled according to the future Government
Orders, on such rate which shall be prevailing on the date of order shall be recovered from the purchaser.
The question is that when an agreement has been arrived at between the parties then both the parties are
bound by the conditions as has been laid down in the agreement or in the information Booklet provided in
connection with the plot which was allotted. Hence they cannot exceed or go beyond the conditions and
stipulations as provided in the agreement itself as well as in the brochure supplied with the offer. Since
there is no such stipulation in the agreement itself, so the order dated 29.12.2006( Annexure 7 to the writ
petition)), order dated 20.1.2007( Annexure 8 to the writ petition) and order dated 9.7.2007 ( Annexure
12 to the writ petition) shall have to be considered in the light of the agreement and the Brochure showing
the conditions and stipulation.
 Part 5 EXERCISE NO. 29

The appellant in writ proceedings sought quashing of an order dated 2 April 2012 passed by the
second respondent cancelling her appointment as a Junior Clerk. The second respondent held that the
appellant had gained employment on the basis of a forged caste certificate and that consequently and in
light of clause 12 of the appointment order, her selection and appointment was liable to be terminated.
Unsuccessful in her challenge to the said order before the learned Single Judge, the instant appeal has
come to be preferred. The learned Single Judge while dismissing the writ petition on 4 February 2016 has
noted that the caste certificate on the strength of which the appellant obtained appointment was found to
have been never issued. It was further noted that while the appellant claimed to be belonged to the
Turaha caste, in the enquiry proceedings it was found that her father held a caste certificate which showed
him as belonging to the Dhimer caste. The learned Single Judge repelled the contention urged on behalf of
the appellant that her appointment could not have been cancelled after more than five years without
holding of the departmental enquiry on the ground that the cancellation of the appointment was not on
account of any misconduct but in terms of clause 12 of the appointment order which itself empowered the
appointing authority to annul the appointment in case it was found that any of the certificates submitted at
the time of gaining employment were forged or fabricated.
We find ourselves unable to accept either of the two submissions. At the outset, it may be noted
that when an internal enquiry was instituted, a report was called for from the Tehsildar, Kasganj in respect
of the caste certificate submitted by the appellant. The report of the Tehsildar, Kasganj dated 14
December 2011 stated in unequivocal terms that no such certificate had been issued in favour of the
appellant nor was there any record or any evidence of the issuance of the caste certificate to her by the
office of the Tehsildar, Kasganj. Additionally, it was found that the caste certificate of the father of the
appellant recorded him as belonging to the Dhimer caste while the certificate submitted by the appellant
showed her as belonging to the Turaha caste. It was on the above state of the record that the second
respondent proceeded to cancel the appointment of the appellant. As the facts noted above would
establish, it was not the allegation of the respondents that the appellant had either wrongly been granted a
Scheduled Caste certificate or that she did not belong to Turaha caste. These issues may have merited a
reference to the District Scrutiny Committee. However, the respondents were faced with a case where the
caste certificate was found to be a forgery and as per the report of the Tehsildar, Kasganj the said
certificate having never been issued by his office. As such, we find no merit in the submission that the
dispute was liable to be referred to the District Scrutiny Committee. (WORDS 509)
 Part 5 EXERCISE NO. 30

The dismissal of a writ petition filed by the appellant seeking interest on the delayed payment of
gratuity has resulted in a special appeal. The appellant was a Tax Clerk in the Nagar Palika Parishad at
Jalaun. During his tenure of service, an order for recovery was issued on 22 March, 2002 by the
Commissioner, Jhansi Division. The order was challenged by the appellant by instituting writ proceedings
under Article 226 of the Constitution. During the pendency of those proceedings, the appellant retired from
service on 31 August, 2007 on attaining the age of superannuation. The writ petition filed by the appellant
was allowed by a learned Single Judge of this Court on 18 November, 2013 and the order for recovery was
set aside. The appellant was paid his dues on account of gratuity in the amount of Rs. 2,03,049/- on 30
May 2014. The appellant claimed the payment of interest on the basis of a Government Order dated 30
October, 2002 which states that a delay in the payment of gratuity beyond a period of three months would
attract simple interest at the rate payable on the General Provident Fund.
The learned Single Judge dismissed the writ petition on the ground that it was only on 18
November 2013 that the order for recovery was set aside by a learned Single Judge of this Court and that
no relief was claimed in the earlier writ petition for the payment of retiral dues including gratuity.
Moreover, the learned Single Judge noted that sanction was given by the District Magistrate and the
Executive Officer, Nagar Palika Parishad in the months of April and May 2014 following which the gratuity
was paid within a period of approximately six months.
From the record before the Court what emerges is that the Commissioner, Jhansi Division had
ordered a recovery from the salary of the appellant on 22 March, 2002. The appellant had challenged that
order by filing writ proceedings in this Court and eventually succeeded upon the order of the learned
Single Judge setting aside the recovery. Consequently, once the order for recovery was quashed and set
aside, the withholding of gratuity must necessarily be treated as having taken place in pursuance of an
unlawful and unsustainable order for recovery. Even if the gratuity was withheld because of the order of
recovery, it is a well settled principle of law that the payment of gratuity can be adjusted or withheld only
in a manner known to law and after following a statutory provision enabling such action in the first place.
But once the order for recovery was in any event quashed and set aside, the order for recovery would
stand obliterated and would be of no consequence whatsoever. The appellant had been deprived of his
gratuity for no fault of his. The appellant retired on attaining the age of superannuation on 31 August,
2007 whereas his gratuity was paid to him only on 30 May 2014. (WORDS 492)
 Part 5 EXERCISE
NO. 31

Mr. Rakesh Sinha, learned counsel appearing for the appellant submitted that this Court has held
that the beneficial provisions of the Act are to be applied only for the purpose of interpretation of the Act
and not for arriving at a conclusion whether a person is juvenile or not and the question whether an
offender was juvenile on the date of commission of the offence or not, is essentially a question of fact,
which is required to be determined on the basis of the materials brought on record by the parties. He
submitted that this Court has further held that Section 35 of the Evidence Act, which provides that an
entry in a register maintained in the ordinary course of business by a public servant in discharge of his
official duty or by any other person in performance of a duty specially enjoined by the law of the country,
will only apply if the conditions mentioned in Section 35 are fulfilled.

He further submitted that Section 35 of the Evidence Act could not be applied to the entry of date
of birth of respondent no. 1 in the school records produced on behalf of respondent no. 1 before the trial
court and on the evidence as produced, the trial court rightly held that the date of birth of the respondent
no. 1 cannot be believed to be 05.10.1988. He submitted that the trial court after scrutinizing the evidence
has held that the evidence produced by respondent no. 1 have been created for escaping conviction for a
grave offence such as murder and was not believable and by physical appearance, respondent no. 1 looks
to be over 18 years of age and on 11.07.2004 he was an adult and not a juvenile. He submitted that this
finding of the trial court on a question of fact with regard to the age of respondent no.1 could not be
disturbed by the High Court.

In support of this proposition, he relied on Sita Mani v. State of UP, (1986) 4 SCC 447, in which
this Court has held that the High Court while exercising its jurisdiction under Articles 226 and 227 of the
Constitution should not interfere with a finding of fact of the inferior court or tribunal except where the
finding was perverse and not based on any material evidence or has resulted in manifest injustice. He
submitted that this Court has further taken a view that if the trial court came to a conclusion, the High
Court will not disturb the conclusion arrived at by the trial court merely because the High Court is of the
view that a different conclusion is also possible on the same evidence. He vehemently argued that the High
Court has lost sight of these limitations of its jurisdiction and on the basis of its own appraisal of the
evidence taken a view that the respondent no. 1 was a juvenile on the date of the commission of the
offence and has set aside the order of the trial court. (WORDS 504)
 Part 5 EXERCISE NO. 32

Having been unsuccessful in his challenge to an order of suspension, the original petitioner is in
appeal. The appellant instituted writ proceedings assailing an order of suspension dated 15 January 2016
passed by the second respondent. The writ petition has come to be disposed of with the learned Single
Judge holding that considering the allegations recorded in the impugned order, no interference was
warranted with the order of suspension. Noticing the submission of the counsel for the appellant that no
charge-sheet had been served upon him, the writ petition was disposed of calling upon the respondents to
issue a charge-sheet to the appellant within fifteen days in case they contemplate holding a departmental
enquiry and that the enquiry itself be completed within a period of two months. The judgment rendered by
the learned Single Judge on 10 February 2016 forms subject matter of this appeal.
The appellant is a Lekhpal attached to the office of the second respondent. It transpires that a
complaint with regard to illegal construction on public utility land was made on 5 January 2016. This
complaint was marked by the second respondent for further compliance to the appellant. As the order
impugned in the writ petition itself records, the complaint dated 5 January 2016 was handed over to the
appellant on 12 January 2016. On 15 January 2016, the second respondent passed an order suspending
the appellant. The order records that despite the complaint having been duly forwarded to the appellant for
compliance, no steps had been taken by him as a result of which the image of the department had been
sullied and the second respondent embarrassed before his superior officers. The second respondent
proceeded to hold that the appellant was guilty of having conducted himself in violation of the Conduct
Rules and also having failed to abide by directions issued by a superior officer. On this state of the record,
the second respondent proceeded to suspend the appellant. In the writ petition, the appellant had averred
that upon receipt of the complaint on 12 January 2016, he sent a communication to the complainant on 14
January 2016 to be present on site on 18 January 2016 when in his presence further action may be taken.
It was further asserted that on 18 January 2016 a spot inspection was undertaken whereafter a report was
submitted by the appellant recording that the encroachment and illegal construction cannot be removed by
the consolidation authorities and that the same would have to be demolished by the tehsil authorities with
the aid of police force. A report of the spot inspection was duly submitted. The appellant further points out
that the order of suspension carried two conflicting dates inasmuch as while the first page of the order
carries a date of 19 January 2016, the last page carries a date of 15 January 2016. It was lastly submitted
that the order of suspension itself had been made in violation of the provisions of Rule 4 of the U.P.
Government Servants Rules, 1999. (WORDS 503)
 Part 5 EXERCISE NO. 33

The last question is whether on merits the suspension order is liable to be set aside or not. In
view of the findings recorded by us that the suspension order was passed in violation of principles of
natural justice, it is not necessary to examine whether the order suspending the licence of the petitioner
was in accordance with government orders but since the Additional Chief Standing Counsel has vehemently
attempted to defend the order on merits, we consider it necessary to examine the correctness of the
suspension order in brief.
The petitioner's fair price shop licence/agreement has been suspended. The suspension order does
not disclose that any opportunity of hearing was given to the petitioner. It appears that Sub Divisional
Magistrate, Bareilly on the basis of oral complaints of the village got an enquiry conducted against the
petitioner on 27.5.2005 and in the enquiry it was found that the shop was closed and rate board was not
put outside the shop. The fair price shop licensee was charging Rs. 12/- per litre in excess of the scheduled
price of kerosene oil, which was in violation of condition no. 24-Ga of the licence/agreement. In the
enquiry, ration cards were also inspected and it was found that every month kerosene oil was not properly
distributed. The sugar was also not properly distributed to the persons who were below the poverty line,
which was in violation of condition no. 3-Gha of the licence/agreement. The shop of the petitioner was
suspended and attached to another fair price licensee. It is also not clear that if the shop was closed at the
time of enquiry then from where this fact was revealed that the petitioner was charging Rs.12/- per litre in
excess of scheduled price of kerosene oil and from where the ration cards were inspected by the enquiry
officer. The impugned suspension order does not disclose that any show cause notice was issued to the
petitioner to submit his reply as to why the petitioner's licence may not be cancelled. According to learned
counsel for the petitioner, on the basis of such vague allegations licence/agreement of the petitioner could
not be suspended.
Normally, we would have directed the petitioner to avail alternative remedy of appeal but we find
from the show cause notice that almost all the charges are absolutely vague without giving any specific
instance and without mentioning any material on the basis of which each of the charges is proposed to be
proved against the petitioner. For example when charge no. 2 says that distribution according to
entitlement of ration cardholders has not been made every month, the notice should also have indicated
when and to which cardholders, distribution was not made. Similarly, when charge no. 4 says that
kerosene oil is being sold at the rate of Rs. 12/- per litre, it should have been disclosed when and from
which person such extra value was charged. (WORDS 485)
Without specific instances of this kind and without informing the material which is sought to be
read against the petitioner in support of these charges, no proper effective defence or reply was possible.
The only thing, which the petitioner could have done, was to make an equally vague denial that he was not
guilty of these charges, which ultimately would lead nowhere. Levelling of charge is easy, proving of
charge is another matter. A person can be punished for proved charges and not for levelled charges. The
standard of proof may vary but nevertheless proof must be there. If evidence is there to prove charges,
this Court will not go into the sufficiency of the evidence. But a finding based on no evidence is not
sustainable. If no material is mentioned in the suspension order, then substituting the material in the
counter affidavit would be of no help to the respondents. (words 151)
 Part 5 EXERCISE NO. 34

The writ petitioner had taken a loan for purchasing pumping set and when the said loan was not
repaid within the stipulated time, proceedings were initiated for recovery of amount as arrears of land
revenue under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. The land belonging to
the writ petitioner was auctioned on 18.08.1989 and the bid of one Kedar Nath Dubey was accepted. The
writ petitioner filed objection under Rule 285 of the Uttar Pradesh Zamindari Abolition and Land Reforms
Rules, 1953. The stand taken was that there was material irregularity in the service of notice as well as in
conducting the sale and thereby Rule 285-A of the Rules had been violated. The said objection was
rejected and the sale was confirmed. The writ petition was filed in the year 1991 and the mutation
proceedings had been undertaken in the meantime by Kedar Nath Dubey.
In the counter affidavit filed before the High Court, the stand taken was that the order of the
concerned authority i.e. the Commissioner, Gorakhpur Division, Gorakhpur dated 7.1.1991 clearly
indicates that the plea of the writ petitioner was untenable. When the amount alongwith interest and other
dues were not paid, the bank had requested for recovery proceedings. Form-73 and Form-73A were sent
to the writ petitioner, which were personally served. Thereafter, the date of auction was fixed on
18.08.1989 and the request notice was duly served. As Kedar Nath Dubey was the highest bidder, his bid
was accepted. Considering the materials on record, it was found that the requisite procedure and the
prescribed rules had been followed and there was no necessity for interfering in auction. It was indicated
that the loan account had already been closed on 05.02.1991 as the entire amount had been recovered by
sale of the land. It was highlighted with reference to the order dated 07.01.1991 that the writ petitioner
was a habitual loan taker and had defaulted on many occasions in re-paying the loans. The writ petitioner
filed a rejoinder affidavit stating that there was no compliance with the requirements of confirmation. The
writ petitioner's stand was that he wanted to deposit the amount on 01.05.1991 but the same was not
accepted and therefore, he approached Additional District Magistrate to direct the Tehsildar to accept the
amount. The primary stand before the High Court was that the prescribed Rules were not followed and in
any event the auction sale was confirmed by the Sub-Divisional Magistrate who did not have the authority
to confirm the sale or conduct the sale. The confirmation was, according to the writ petitioner, by an
incompetent authority and therefore, the entire proceeding was invalid. The High Court took the view that
the application filed by the writ petitioner for setting aside the auction sale was full of vague and evasive
statements relating to the allegation that the norms laid down in Rule 285 were not confirmed and there
was material irregularity in the auction proceedings. (WORDS 495)
The High Court, therefore, held that the Commissioner was right in holding that the order passed
by the Commissioner did not suffer from any infirmity. However, it was held that the crucial issue was that
the Collector is the authority to confirm the sale. In this context reference was made to Rules 284 and 285
and it was held that under Rules 284 and 285 the confirmation of the sale has to be done either by the
Collector in person or by an Assistant Collector specifically appointed by him in that behalf. It was held that
the SDM did not have any authority. A reference was made to a Notification dated 17.1.1976 to conclude
that the Assistant Collectors of the First Class who are in charge of the Sub Division can discharge the
function of the Collector subject to the condition that the sales are approved by the Collector. The High
Court was of the further view that except power of approval of sale, the SDM has every other power of
Collector. (words 172)
 Part 5 EXERCISE NO. 35

Refuting the assertion made by learned counsel for the petitioner, learned counsel appearing for
the respondents submits that the scheme of compassionate appointment filed along with the
supplementary affidavit with the covering letter dated 16.1.2013, which has subsequently been adopted by
the FCI vide circular dated 26.3.2013, will not be applicable upon the petitioner as the date of
determination of the claim of the petitioner at the time of death of his father is 2004. It is submitted that
in the circular prevailing at the time of the death of the father of the petitioner is dated 2.2.1977 wherein it
has been categorically provided that an application for compassionate appointment will have to be made
within six months from the date of death/retirement of the deceased employee and this, in no case, should
be extended. The said circular come into effect from 1st of January, 1977. It is submitted that at the time
of death of the father of the petitioner i.e. in 2004, the petitioner was a minor, as such he could not have
applied but his mother could have applied but she did not apply and the petitioner finally applied when he
was major in the year 2006, which was way beyond the maximum limit of six months, therefore, the claim
of the petitioner has been rejected.

Learned counsel for the respondents has further pointed out that the relaxation in the period for
making of application for compassionate appointment as mentioned in circular dated 3.7.1996 is not
applicable in the case of death of an employee but it is only for seeking compassionate appointment of a
regular employee being retired on medical ground on his own request. It is submitted that both these
circulars cannot be equated and since there is no power to relax the period for making application under
circular dated 2.2.1977, the claim of the petitioner has rightly been rejected. Learned counsel for the
respondents further submits that the subsequent scheme of compassionate appointment as filed along with
the supplementary affidavit with the covering letter dated 16.1.2013, will not be applicable. The same
cannot be applied with retrospective effect. It operates prospectively, therefore, the provision of extension
of period upto five years was not available to the petitioner at the time when his application was being
considered. He however submits that the said scheme of compassionate appointment would also not be
applicable since the same has been adopted only for such employees and the staff of the Corporation, who
are governed by the provision of the Food Corporation of India Regulations, 1971. The aforesaid
regulations are applicable to all the employees of the Corporation other than the persons governed by the
Industrial Employment (Standing Orders) Act, 1946 and/or the Food Corporation of India Standing Orders
framed under the said Act. Since the father of the petitioner was governed by the later, the Dying-in-
Harness Rules of 2013 would not be applicable to the case of the petitioner. (WORDS 491)

The clear provision of law as per the circular dated 2.2.1977 is that the application for
compassionate appointment has to be made within six months form the date of death of the deceased
employee. This period cannot be extended. The relaxation that the petitioner has claimed, is under another
circular of dated 3.7.1996, which circular is applicable only upon compassionate appointment on the
ground of retirement of the employees on medical ground upon their own request and, therefore, both the
circulars are distinguishable and operate in different set of employees. However, learned counsel for the
petitioner then point out the paragraph 3 of the impugned order wherein the authorities below have relied
upon the said circular dated 3.7.1996 to state that for making compassionate appointment financial
condition of the family must necessarily be gone into.
 Part 5 EXERCISE NO. 36

The admitted case of the petitioner is that his father Ram Lal was granted a lease of certain
agricultural land on 1.7.1950 for a period of thirty years. During the period of the lease, in the year 1964 a
small portion of the land leased to the father of the petitioner comprising an area of 0.45 acre was
acquired under the provisions of Land Acquisition Act 1984, for which due compensation was paid to the
father of the petitioner, who was the lease holder at the time of acquisition of the land. The remaining
10.88 acres of land continued in the possession of the father of the petitioner. In the meantime, the father
of the petitioner expired and the lease, which was granted in favour of Ram Lal, was transferred in favour
of the petitioner and his brother Rajendra Kumar and the names of the petitioner as well as Rajendra
Kumar Suri were entered in the revenue records. The petitioner's claim is that under the provisions of U.P.
Government Estate Thekedari Abolition Act, 1958 the petitioner has acquired right of heritable tenant and
as such, even on the expiry of the lease on 30th June 1980, the right of the petitioner had continued.

After the expiry of the lease granted in favour of the father of the petitioner, the respondent
authorities proceeded to evict the petitioner from the land in question. The petitioner filed a civil suit, in
which temporary injunction was rejected. The petitioner as well as his brother filed an appeal before the
lower appellate court, which was dismissed. The petitioner as well as his brother filed Civil Misc. Writ
Petition No. 2832 of 1984 Rajendra Kumar Suri Vs. State of U.P. and others, in which this Court, after
considering the totality of the circumstances, held that the claim of the petitioners was upto 31st June
1982 but since the land revenue had been deposited by the petitioner and his brother upto 31.3.1983,
thus while dismissing the writ petition, allowed the petitioner to continue in possession till 31st March
1983. The petitioner as well as his brother also gave an undertaking that they shall hand over the peaceful
vacant possession of the land in question to the respondents on or before 31st March 1983. While
dismissing the writ petition on the basis of the said undertaking, the petitioner continued to be in
possession till March 1983. It is not disputed that the petitioner has handed over the possession in terms
of the said undertaking.

The grievance of the petitioner did not end here and he thereafter moved an application before
the State Government claiming compensation for his eviction from the land in dispute, which was denied to
him by the State Government vide order dated 14.1.1986. Challenging the same, the present writ petition
has been filed with a prayer to issue directions to the respondents to immediately start proceedings for
grant of compensation in accordance with the provisions of the Land Acquisition Act. (495)

The claim of the petitioner rests on the basis of handing over the possession of the land in
question in terms of the High Court's order dated 26.11.1982 passed in Civil Misc. Writ Petition No. 2832 of
1982 wherein according to the petitioner, he had made an endorsement that the handing over of the
possession is subject to the such rights as may be available to him for receiving compensation. It has been
contended that the father of the petitioner had acquired heritable right in terms of the provisions of Act
No.1 of 1959 and as such the petitioner was legally entitled to continue in possession and since they were
required to hand over possession which was not in accordance with law, thus, they would be entitled to
payment of compensation. In our view, such contention of the learned counsel for the petitioner is
misconceived. Once the possession of the land in question had been directed to be handed over by the
order of this Court dated 26.11.1982 passed in Civil Misc. Writ Petition No. 2832 of 1982 (Rajendra Kumar
Suri and another Vs. State of U.P. and others) in which the petitioner had not claimed any such heritable
right in terms of the provisions of the Act No.1 of 1959.
 Part 5 EXERCISE NO. 37

On behalf of the respondent no. 2, it was contended that no specific allegations against the
Members of the BCCI or Directors of the India Cement Limited have been levelled and, therefore, the plea
based on conflict of interest was rightly negatived by the High Court. It was maintained before this Court
that India Cement Limited is a Company, which is managed through a Board of Directors of which
respondent no. 2 is the Vice Chairman and Managing Director but his holding of shares is only 5% and,
therefore, it is wrong to say that the respondent no. 2 takes decision without approval of the Board of
Directors of the Company. What was pleaded was that India Cement Limited has thousands of share
holders and the Company has an independent legal existence from its share holders whereas all the
decisions regarding management and administration of BCCI are taken by its Managing Committee
consisting of nine members of whom the respondent no. 2 is only one of the members and, therefore,
there is no conflict of interest as is claimed by the appellant. It was further argued that all the decisions of
the Managing Committee of the BCCI have to be approved by its General Body and as there are no specific
allegations against the Members of the General Body to the effect that they were also actuated by mala
fide in favouring the respondent no. 2, the plea based on conflict of interest should not be entertained by
this Court.
As noticed earlier, the learned Single Judge of the High Court before whom the suits were
instituted as well as the Division Bench of the High Court have refused to grant equitable relief of
injunction claimed by the appellant. This Court is of the opinion that grant of interim relief as prayed for
can amount to decreeing the suit without adjudicating the claims raised in the pleadings of the parties.
Such a course is not permissible at all. This Court has deprecated the practice of grant of interim relief,
which amounts to decreeing the suit in several reported decisions. The averments made in the plaints
would show that the final reliefs claimed are almost the same as claimed by way of interim reliefs. Whether
the appellant is entitled to equitable relief of injunction or not, will have to be decided after several
questions raised in the plaints are decided on the basis of evidence, which may be adduced by the parties.
The questions of law sought to be raised by the appellant are at the best mixed questions of law and facts.
As observed earlier the appellant has failed to disclose certain material facts nor the appellant has been
able to prima facie establish that his legal rights have been violated as required under Sections 34 and 41
of the Specific Relief Act, 1963. No material is placed by the appellant on the record of the case on the
basis of which a reasonable finding can be recorded. (WORDS 498)

Before the High Court, the contention of the appellant was that the suits were filed by him in the
capacity of past President of BCCI as he was an administrator within the meaning of the said phrase, as
defined in Clause 1(n) of the Regulations. The respondent No. 1 contended that the suits were instituted
by the appellant in his individual capacity and, therefore, the decision would be binding only on him but the
nature of the reliefs claimed indicated that the suits were filed in public interest and, therefore, the suits in
individual capacity were not maintainable. The High Court noticed that the proper course for a person for
instituting a suit in representative capacity was to obtain permission of the Court before instituting the
suit. The High Court found that in the present case no such permission was taken even after filing of the
suits. Having so held, the High Court expressed opinion that this question could be decided only after trial
was held but for the purpose of grant or refusal of the injunction orders claimed only a prima facie
consideration was required. (words 187)
 Part 5 EXERCISE NO. 38

Learned Senior Counsel for the appellant, while reiterating the contentions urged before the High
Court, submitted that the High Court failed to appreciate that the second para of Rule 49 carves out an
exception to the Bar created by Rule 49, precluding a full time salaried employee from practising as an
advocate. The said exception was subject to one limitation i.e. express bar created by Rules made by any
State Bar Council in exercise of its powers under Section 28(2) read with Section 24(1) of the Advocates
Act, 1961. Since the respondent has not framed any rule expressly barring such Law Officers from being
enrolled as advocate, the appellant was entitled for enrollment. According to the learned counsel, the High
Court also failed to note that it was not a case of refusal of enrollment to a Law Officer but it was a case
wherein the respondent was estopped from canceling the certificate of enrollment issued to the appellant
by the very respondent as early as on 9.7.1984. Therefore, cancellation of enrollment after almost a
decade based on erroneous interpretation of Rule 49 of the Rules of Bar Council of India, was unjust. It
was also urged that the appellant had placed all the material before the respondent before obtaining his
enrollment certificate and there was no concealment of facts on his part and that the appellant was
discriminately treated. The learned counsel added that the impugned action of the respondent was
unwarranted as it amounted to punishment of removal of the name of an advocate from the roll of the
State Bar Council as postulated by Section 35(d) of the Act without following the procedure.
Per contra, the learned counsel representing the respondent made submissions supporting the
orders impugned in this appeal. According to him, the appellant was not at all entitled for enrollment as an
advocate having regard to Rule 49 of the Bar Council of India Rules in the absence of any enabling
provision to a full time salaried employee for enrollment as an advocate. The learned counsel submitted
when the appellant was not at all entitled to be enrolled as an advocate, the action taken by the
respondent after lapse of some time is of no consequence and the delay in taking action in a case like this
itself does not give protection so as to sustain the enrollment. He further submitted that there was no
discrimination as alleged by the appellant looking to the nature of duties of the prosecutors in the State
Departments and the appellant. In terms of Section 24 of the Act, a person shall be qualified to be
admitted as an advocate if he satisfies the provisions of the Act and the Rules, if any, made by the State
Bar Council besides fulfilling other conditions as laid down in this Section. Even if no rules were framed
under Section 28(2) read with Section 24(1) of the Act by a State Bar Council, enrollment of a person shall
be subject to the provisions of the Act and the Rules. (WORDS 510)

Section 28 has conferred rule making power on a State Bar Council to carry out the purpose of
Chapter III of the Act. A State Bar Council can prescribe conditions subject to which a person may be
admitted on any such roll under Section 28(2)(d) of the Act. In the present case, the respondent has not
framed rules in this regard. Under Section 49 of the Act, the Bar Council of India has power to make rules
for discharging its functions under the Act. Rules are framed by the Bar Council of India exercising the
powers conferred on it. In the Preamble, it is stated that an advocate shall at all times conduct himself in a
manner befitting to his status as an officer of the court, a privileged member of the community and a
gentleman bearing in mind that what may be lawful and moral for a person who is not a member of the
Bar or for a member of the Bar in his non-professional capacity may still be improper for an advocate.
(WORDS 178)
 Part 5 EXERCISE NO. 39

The respondent applied for appointment on the post of an Assistant Clerk in pursuance of an
advertisement, which was issued by the State Bank of India in August 2009. The respondent was
appointed on 3 December 2010 and joined his services as an Assistant Clerk at Govind Nagar Branch of
the Bank in district Kanpur Nagar. He was deputed for training and on successful completion thereof, he
was placed on probation by an order dated 13 June 2011. The probationary period was extended by three
months since the work of the respondent was not found to be satisfactory. The services of the respondent
were terminated by an order dated 27 August 2011 of the Regional Manager by cancelling his
appointment, treating it as void ab initio.
The ground on which the order of appointment was cancelled was that at the written examination
conducted by the Bank on 8 November 2009 in pursuance of the recruitment process, it was not the
respondent who had appeared but, according to the Bank, some one else had appeared against the
candidature of the respondent impersonating him. The Bank treated this as a suppression of a material
fact that the respondent had not appeared at the written examination and had allowed some one else to
appear. The appointment was treated as void ab initio particularly, placing reliance on Clause 17 (i) of the
General Instructions, which stipulated that if it was detected at any stage of the recruitment that a
candidate does not fulfill the eligibility norms and/or that the candidate had furnished any incorrect or false
information or suppressed any material fact, the candidature would stand cancelled and if such
shortcomings are detected even after appointment, the services are liable to be terminated. Similarly,
reliance was placed on a condition of the letter of appointment under which suppression of material facts
would lead to the appointment being regarded as void ab initio.
The Bank filed a counter affidavit in response to the petition filed by the respondent challenging
the order of termination. The case in the counter affidavit was that a re-verification was done after the
appointment was made, when the Bank had called upon the respondent to submit his photographs and
also provide his signatures. In the meantime, the Office of the Bank received the file from the Zonal Office,
which had conducted the examination, which contained the photographs of the person who had appeared
at the written examination as well as in the interview along with the call letter. According to the Bank, the
photographs submitted by the respondent did not tally with those of the person who had appeared at the
written examination giving rise to an apprehension of impersonation. The Branch Manager of the Bank, by
a letter dated 29 April 2011, informed the controlling authority to have the matter investigated.
Thereafter, the matter was referred to a hand-writing forensic expert for verification of the thumb
impression and the signatures on the call letter of the present incumbent who was actually working in the
Bank. (WORDS 505)
 Part 5 EXERCISE NO. 40

On the strength of aforesaid judgments, it is canvassed by learned counsel that the signatures of
documentary evidence placed on record could not be compared without seeking expert opinion and Section
73 of the Evidence Act did not enable the trial court to record a finding on the basis of mere comparison of
the signatures on the documents, originals whereof were not produced before the court below. This,
according to learned counsel for respondent no.1, is a material irregularity, which the trial court has
committed while allowing the application. Learned counsel for respondent no. 1 has also argued that
despite there being an application filed by the respondent no.1 to call for oral evidence, the trial court
proceeded in a hasty manner and decided the application on the same date, when the application for
transfer was rejected by the learned District Judge. Rendering a detailed judgment on the same very day
according to learned counsel shows that the trial court had predetermined the issue, which clearly
amounts to a material irregularity in the process of adjudication.
Now coming to the scope of writ petition under Art.226 of the Constitution of India as directed
against the order passed by the revisional court, I am of the considered opinion that the revisional court
ought not to have interfered with the matter on the mere ground that the trial court did not undertake an
exercise of recording oral evidence or did not enter into a critical analysis of the documentary evidence.
The proceedings in respect of application under Order 22 Rule 10 CPC are summary in nature and the trial
court while adjudicating upon the same has clearly recorded that no other person except respondent no.1
has raised any dispute before the trial court and that finding of the trial court has not been found faulty on
the strength of any material whatsoever by the revisional court, therefore, the revisional court while
passing the impugned order has clearly exceeded the jurisdiction conferred under Section 115 of the Code
of Civil Procedure. The other grounds raised by learned counsel for respondent no.1 before the revisional
court to the effect that the trial court proceeded in a hasty manner and did not dispose of the application
for allowing evidences to be led is also devoid of merit inasmuch as no such evidence was actually led
before the trial court or is required to be examined after recording of oral evidence etc.
This Court is of the opinion that the trial court order allowing the application of Rama Kant
Kaushik not being a conclusive judgment as to the rights of parties would not preclude respondent no.1 to
participate in suit proceedings, once such a right is declared or based on the requirements under Section
25 of the Societies Registration Act, 1860 is laid as per the procedure prescribed under law. The trial court
while adjudicating upon the issue of rival succession/devolution in interest, being bound to frame an
inclusive issue is at liberty to transpose any of the contesting parties to be the plaintiff. (WORDS 507)
 Part 5 EXERCISE NO. 41

The submission is that the judgement dated 4.7.2006 in Civil Misc. Writ Petition No. 6351 of 2000
directing the extension of benefit to the respondent-petitioner on the same terms as another Constable Sri
Virendra Kumar Mishra was on the same terms that was provided for in the reinstatement order of
Virendra Kumar Mishra, and therefore the said terms became final as per the judgment dated 4.7.2006
which could not be altered subsequently by an order in a fresh writ petition that has given rise to this
appeal.
The background in which the aforesaid grounds have been raised are that the respondent-
petitioner Ramesh Bahadur Singh was subjected to a punishment of dismissal while posted as a constable
in the Provincial Armed Constabulary of the State of U.P. A dismissal order was passed after a
departmental enquiry against which the respondent-petitioner approached this Court by filing writ petition
No. 6351 of 2000. The writ petition was considered on both grounds namely that the procedure of the
disciplinary proceedings adopted was in violation of that which is prescribed, and the respondent-petitioner
having been acquitted in the criminal case was entitled to avail all service benefits with reinstatement; the
second ground raised was that another co-accused in the same establishment namely Virendra Kumar
Mishra had already been reinstated by the Appellate Authority vide order dated 22.9.1999 and therefore
the respondent-petitioner deserves to be at least given the benefit at par with Virendra Kumar Mishra. The
dismissal order, the subsequent appellate order and the revisional order that were under challenge came
to be set aside by the judgement dated 4.7.2006 but the final relief which was granted to the respondent-
petitioner was to the effect that the respondent-petitioner shall be entitled to the benefit at par with
Virendra Kumar Mishra on the ground that the respondent-petitioner deserves the same treatment. It is
undisputed between the parties that Virendra Kumar Mishra had been reinstated in service subject to the
condition that he shall not receive salary from the date of dismissal till the date of reinstatement and
joining and that he shall stand reduced to the minimum of the pay scale and be reverted accordingly.
However, all other consequential service benefits would be available without any benefit of increment. In
the case of the respondent-petitioner Ramesh Bahadur Singh what happened was that he filed the writ
petition in the year 2000 claiming the same benefits. The writ petition remained pending and was
ultimately allowed by the judgement dated 4.7.2006. While allowing the writ petition, the learned Single
Judge clarified that the benefit available to the respondent-petitioner would be to the same extent as given
to Virendra Kumar Mishra. Thus, the condition of non-payment of salary from the date of dismissal till the
date of joining remained the same under the said judgement. The writ petition was allowed on 4.7.2006,
whereafter, the respondent/petitioner was made to join under the aforesaid judgement. He was therefore
not paid salary from the date of dismissal till the date of joining in the year 2006. (WORDS 503)
 Part 5 EXERCISE NO. 42

The petitioner has accordingly prayed for issuance of a writ of mandamus quashing the order
dated 11.1.2016 whereby the Deputy Registrar (Medical), Chhatrapati Sahuji Maharaj University, Kanpur
informed him that there is no provision in the University for award of grace marks in the supplementary
examination. He has also prayed for a writ of mandamus commanding the respondents to award grace
marks to him and declare him passed in the second Professional examination so as to entitle him to appear
in the final Professional Part I examination. Learned counsel for the petitioner submitted that the
Regulations framed by Medical Council of India are binding on the University. It cannot make an imaginary
distinction between the main examination and the supplementary examination in denying the benefit of
grace marks to a candidate. It is pointed out that in the past the University had given benefit of grace
marks to one Ankit Pandey in the supplementary examination in declaring him passed and thus, the action
of the University vis-a-vis the petitioner is arbitrary and discriminatory.
On the other hand, learned counsel appearing on behalf of the University submitted that the MCI
Regulations permit award of grace marks in only one subject and that too in the main examination and not
in the supplementary examination. He further submitted that the MCI Regulation does not mandate award
of five marks but leaves it to the discretion of the University to exercise such power. It is urged that the
University is not awarding grace marks in the supplementary examination. It is pointed out that in this
regard, a decision had also been taken by the Course Committee on 31.7.2015. It is further submitted that
it had been the consistent policy of the University not to award grace marks in supplementary
examination, nor it had been done in the past. As regards the case of a candidate cited by the petitioner in
the writ petition, it is stated that the University is examining as to under what circumstances grace marks
had been awarded to him in the supplementary examination. Learned counsel for the MCI supported the
contention of the University. He also urged that although the Regulations are binding on the University,
but the actual award of grace marks has been left to the discretion of a particular University and it is open
to the University to frame its own policy in this regard. It is urged that it is not imperative on the
University to award grace marks of five in each and every case and the University is free to frame its own
guidelines. The issues for consideration before this Court are whether the MCI Regulation restricts award
of grace marks to the main examination or its benefit could also be extended to the supplementary
examination and whether the University is competent to frame its own policy in relation to award of grace
marks and whether the decision of the University not to award grace marks in supplementary examination,
is contrary to the MCI guidelines. (501)
 Part 5 EXERCISE NO. 43
The petitioner was appointed as Junior Plant Protection Assistant in the Department of Agriculture,
U.P. on 13.1.1954. Thereafter, he was promoted on the post of Deputy Director Plant Protection and
retired from service on 30.11.1990. According to petitioner's counsel, after retirement, petitioner moved
an application for payment of post retiral dues. According to petitioner's counsel, the Chief Accountant
Officer, Directorate, Agriculture Department is competent authority to release pension and gratuity in
accordance with the Government order contained in Annexure No.1 to the writ petition but the pension and
gratuity of the petitioner was not released, hence he submitted representation to the Director, Agriculture
U.P. on 22.2.1991 contained in Annexure No.2 to the writ petition followed by another representation
dated 30.5.1991, contained in Annexure No.3 to the writ petition.
Submission of the petitioner's counsel is that instead of adjudicating the controversy with regard
to payment of post retiral dues, charge-sheet dated 4.7.1991 was served on the petitioner along with
covering letter, a copy of which has been filed as Annexure No.4 to the writ petition. After receipt of
charge-sheet, the petitioner submitted letter dated 12.7.1991 to the inquiry officer in which the petitioner
inter alia pleaded that after retirement, no proceeding can be held since the charges are five years old. The
petitioner relied upon the Regulation 351A of U.P. Civil Service Regulations. Representation submitted by
the petitioner was followed by another representation dated 24.9.1991 contained in Annexure No. 6 to the
writ petition. Instead of adjudicating the controversy in the light of Regulation 351A of the Regulations, by
a letter dated 23.9.1991 contained in Annexure No. 7 to the writ petition, the petitioner was informed with
regard to change of inquiry officer. However, by subsequent representation dated 29.10.1991 followed by
another representation dated 5.9.1992 contained in Annexure No. 9 and 10 to the writ petition, the
petitioner again took stand that no inquiry can be proceeded against the petitioner. It appears that since
the petitioner failed to receive any response from the respondents, he approached this Court under writ
jurisdiction under Article 226 of the Constitution of India challenging the charge-sheet dated 4.7.1991
contained in Annexure No.4 to the writ petition. From the perusal of the charge-sheet, it appears that the
petitioner has been charged on three counts and the charges relates to the period between 26.7.1983 to
18.7.1986 when the petitioner was posted as Plant Protection Officer at Meerut. The allegation against the
petitioner is that the petitioner had caused loss to the State Government during the period in question.
During the pendency of the writ petition, the original petitioner died on 4.11.2005 and his wife and children
were substituted as legal heirs. However, later on petitioner's wife Prem Lata Misra also died on 2.8.2009.
Nor the original petitioner nor his wife could avail the benefit of post retiral dues. In pursuance of the
interim order passed by this Court, an amount of Rs. 1,16,000/- was directed to be paid to the petitioner.
(494)
 Part 5 EXERCISE NO. 44

The short question raised in this petition is as to whether the Sub Divisional Magistrate was right
in cancelling the license to run a fair price shop issued in favour of the petitioner as affirmed by the
Commissioner in appeal under the provisions of the U.P. Scheduled Commodities Distribution Order, 2004
read with the Government Order dated 28.10.2002. The petitioner was granted a licence to run a fair price
shop under the Government Order dated 28.10.2002, which was then prevalent in the year 2003. This was
done according to the petitioner under a valid resolution of the Gram Sabha to run the shop in the village
in question. The charges of mal-distribution were brought against him coupled with the charge of having
concealed the fact that his father was already a licence holder of a fair price shop of another village, which
disqualifies the petitioner for a licence under Clause 10 (e) of the Government Order dated 28.10.2002. An
enquiry was conducted with opportunity to the petitioner who, apart from defending the charges on the
ground of improper procedure adopted during enquiry, went on to urge that since he was living separately
from his father, he did not suffer any such disqualification as alleged aforesaid. It was also contended by
the petitioner in his reply that the documents which he wanted to support his stand, were lost on his way
to the Sub Divisional Magistrate's office. Relying on the extract of the family register, it was pleaded that
the petitioner's family has been shown separately from that of his father and as such, it is urged that the
conclusions drawn by the Sub Divisional Magistrate as affirmed by the Commissioner are erroneous. In
short, since the petitioner is separated from his father, therefore he does not belong to the same family as
per the Government Order dated 28.10.2002 and therefore, he does not suffer from any such
disqualification. The prayer is to accordingly quash the impugned orders as they proceed on erroneous
assumption of law and fact.
Learned counsel for the petitioner has reiterated the submissions that were advanced before the
authorities below and has invited the attention of the Court to the extract of the family register appended
to this writ petition to support the stand of segregation of the family status of the petitioner. He contends
that once the petitioner is recorded as the head of a separate family and the petitioner claims to be living
under a separate roof in a distinct household, the authorities have committed an error in construing the
provisions adversely against the petitioner. In response, learned standing counsel contends that the
definition of separation of family and its interpretation under personal law or under special statutes would
not govern the definition of family as occurring in the Government Order dated 28.10.2002. He urges that
the word 'family' has not been specifically defined but in view of the purpose of the order governing grant
of licence of running a fair price shop, the widest possible meaning should be construed. (WORDS 505)
 Part 5 EXERCISE NO. 45
The argument of the learned counsel for the petitioners is that the vacancies which occurred in
the year 2011 and were advertised by advertisement dated 15.7.2011 are liable to be filled up by following
the procedure as provided under the Rules of 2008. He has made this submission from different angles by
submitting that even though such vacancies were cancelled subsequently and re-advertised by new
advertisement dated 14.5.2013, however the vacancies as noted above are liable to be filled up by
following the Rules of 2008 and the Rules of 2013 as notified on 9.4.2013 will not apply on such vacancies;
the rules of game cannot be changed midway and the abovenoted vacancies are liable to be governed by
the Rules of 2008 and not by the Rules of 2013; even though the petitioners have appeared in the
selection process, still it is open to them to challenge the advertisement dated 14.5.2013 as there can be
no estoppel against the law and the settled law is that the Rules as applicable on the date of initiation of
recruitment process i.e. the date of advertisement will apply; no separate order cancelling the earlier
advertisement and earlier selection proceedings was passed by the State Government hence the Rules as
applicable in the year 2011 i.e. Rules of 2008, shall apply to the vacancies as noticed earlier; the
fundamental right of the petitioners is involved and therefore, they still have a right to challenge the
advertisement dated 14.5.2013 and the selection proceedings undertaken in pursuance thereof. Learned
counsel for the petitioners has relied upon various rulings of the Hon'ble Apex Court as well as of this Court
in support of his arguments, which shall be referred to subsequently.

Learned Standing Counsel at the very outset produced a copy of the Government Order dated 3rd
September, 2013 issued by the State Government to indicate that the State Government has decided to
cancel the advertisement and the partial selection proceedings undertaken in pursuance thereof, and has
decided to undertake the selection proceedings afresh. It was also clearly provided that the vacancies
which will occur till June, 2015 due to promotion and retirement shall also be included in the aforesaid
advertisement. A copy of the same is taken on record. He further submitted that admittedly the petitioners
have already appeared in the selection process throughout and it is only when they found that they will not
be selected, they have come up challenging the advertisement itself and the selection process in
pursuance thereof, which in itself, is mala fide and is not permissible under the law. The submission is that
after having taken chance in the selection and on realizing that they will be unsuccessful, they cannot be
permitted to challenge the very norms on the basis whereof the selection was held. They cannot resile
back after having participated in the entire selection process, and if at all they had any right to challenge
the same, such participation would amount to waiver of such right or objection on the part of the
petitioners. (WORDS 507)
 Part 5 EXERCISE No. 46

The dispute relates to the claim of promotion of the petitioner on the post of Lecturer (History) in
Dayanand Inter College, which is an institution governed by the provisions of U.P. Intermediate Education
Act, 1921 and the U.P. Secondary Education Service Selection Board Act and the regulations framed
thereunder. The vacancy on the post of Lecturer in History came into existence on the retirement of the
permanent incumbent on 30.6.1998. The respondent No. 5 is admittedly senior to the petitioner and one
Shishu Pal Singh was also senior to the petitioner and the respondent no.5. The respondent no.5
succeeded in completing his Post Graduation in the subject of History with the declaration of his result on
8.7.1998. The Respondent No.5 was, therefore, admittedly not qualified on the first day of the year of
recruitment upon the vacancy coming into existence. The relevant date, which is admitted between the
parties, would be 1.7.1998. The Management appears to have promoted Shishu Pal Singh whose
promotion was never approved. The Respondent No.5 claimed that he became qualified as on 1.7.1999
and since Shishu Pal Singh had retired, therefore, he ought to have been promoted. The Respondent No.5
had staked his claim before the District Inspector of Schools which was not being considered, as a result
whereof he filed Writ Petition No.43080 of 1999 which was disposed of on 6.10.1999 to consider his claim.
The matter was taken up by the District Inspector of Schools who vide order dated 19.8.2000 came to the
conclusion that the Respondent No.5 was not qualified as on the first date of the year of recruitment and
hence his claim was accordingly rejected. The order, therefore, practically went in favour of the petitioner,
which was never challenged in any court of law.
The said order of the District Inspector of Schools was not being implemented by the Committee
of Management, as a result whereof the petitioner approached this Court by filing Writ Petition No.28605
of 2001, in which orders were issued on 6.8.2001 commanding the Management to take a decision afresh.
The Manager passed an order on 1.10.2001 rejecting the claim of the petitioner. It is in these
circumstances that the dispute came to be taken up further before the Joint Director of Education. The
petitioner filed another Writ Petition No.21997 of 2002, which was disposed of with a direction to decide
the claim of the petitioner. Accordingly, the Joint Director of Education, being the Chairman of the Regional
Level Committee, proceeded to pass the order dated 28.2.2004 and rejected the claim of the petitioner
and reversed the order of the District Inspector of Schools passed earlier accepting the claim of the
Respondent No.5. The Joint Director of Education recorded a finding that the date of occurrence of vacancy
stands shifted to 1.7.1999 on account of the circumstances indicated therein namely that the claim of
Shishu Pal Singh had not been recognized and then held that the Respondent No.5 was qualified on the
said date and, therefore, deserves to be promoted. (WORDS 502)
 Part 5 EXERCISE NO. 47

By the impugned judgment and award in reference to issue no.1, learned tribunal has
held that the accident that had occurred due to rash and negligent driving by the driver of the
said bus was not proved. The accident had occurred only on account of evasive action taken by
the bus driver in order to save the child. Learned tribunal has further held that for
maintainability of claim petition filed under Section 166 of the 1988 Act, rash and negligent
driving by the offending vehicle is necessary, which is absent in the present matter. The claim
petition is a collusive petition between the claimants and the owner of the vehicle, therefore,
deserves to be rejected. When the rival arguments are considered, in this background it has to
be observed that the issues framed by the learned tribunal do not confirm to the provisions
contained in Order XI Rule 1 C.P.C. Sub-Rule 1 of the said provision prescribes that issues
arise when a material proposition of fact or law is affirmed by one party and denied by the
other. Sub-Rule 2 further says that material propositions either of law or fact have to be
necessarily sated and Sub-Rule 3 mandates the court to frame a distinct issue for each
material proposition.
The Hon'ble Apex Court in the case of Kalyan Singh Chouhan Vs. C.P. Joshi, 2011 (11)
SCC 786 has explained the object of framing issues. According to Hon'ble Apex Court, the
object of framing issues is to ascertain the area of dispute and requires to be determined by
the court. Keeping in view the above mentioned provisions and object underlying them, we find
that the non-contesting respondent has specifically stated that the accident had not occurred in
the manner stated in the claim petition, but it had occurred in order to save a child, who came
suddenly in front of the said bus. Further, in the written statement filed on behalf of
respondent no.1 not only the manner in which the alleged accident took place was disputed,
but also it has been specifically pleaded that claimants had no cause of action to file the claim
petition and claims tribunal had no jurisdiction to try the same. The Hon'ble Apex Court has
held that in the matter of adducing evidence parties are not guided by the pleadings, but by
the issues. In the present case, non-framing of material issues have resulted in non-production
of material evidence on those points. In this case, the Hon'ble Apex Court has further observed
that the court should not decide a suit on the matter on which no issue has been framed. This
legal proposition is enough for us to come to the conclusion that the learned tribunal has
rejected the claim petition on the ground in relation to which no issue was framed by it. We are
further of the opinion that non-framing of issues have resulted in non-production of relevant
evidence, therefore, the claim petition was not fairly tried and decided. (WORDS 497)
 Part 5 EXERCISE NO. 48

The learned counsel for the appellants has strenuously argued that the Tribunal has
proceeded rather in an unnecessary haste and rejected the claim application without extending
reasonable opportunity to the appellants and without considering that the claim application was
being maintained by the guardian and next friend of the claimants-appellants, who were
suffering from physical as also legal disability. It is submitted that the claim application
deserves to be examined on merits while extending reasonable opportunity of evidence to the
claimants-appellants. The learned counsel appearing for the respondent-insurer has duly
supported the award impugned with the submissions that the claimants-appellants having
failed to establish the basic facts, the Tribunal has not committed any error in rejecting the
claim application. Having given thoughtful consideration to the entire matter, we are clearly of
the view that on the facts and in the circumstances of this case, the impugned award cannot
be sustained and the matter deserves to be remanded to the Tribunal for consideration afresh.
A perusal of the record makes out that the Tribunal has obviously proceeded with an
extra haste in the matter. The affidavit in evidence was filed on 16.04.2013 and on the next
date, the evidence was closed for nobody having appeared for the claimants-appellants.
Thereafter, the matter was heard on 09.05.2013 and was decided on 24.05.2013. In the
process, the Tribunal omitted to consider that it were a matter of claim for compensation
because of the death of the victim of a vehicular accident; and the claimants were said to be
the persons suffering from physical as also legal disabilities inasmuch as the claimant No.1 was
said to be the blind mother of the victim whereas claimant Nos.2 and 3 were said to be the
minor sons of the victim. Although affidavit in evidence was indeed filed by the guardian/next
friend of the claimants on 16.04.2013 and hence he cannot be considered totally negligent in
prosecuting the matter but, if at all the Tribunal found him wanting in attending on his duties
and in prosecuting the matter, alternative arrangements could have been always ordered,
rather ought to have been ordered, by the Tribunal for protection of the rights of the claimants
who are shown to be the persons with disabilities.
It appears that in its haste for disposal, the Tribunal altogether failed to consider that
the matter related to the claimants who were shown to be the persons under disabilities
including minors; and if at all their next friend was found not doing his duties for prosecution of
the matter, the next friend could have been removed and guardian ad-litem could have been
appointed for the claimants on the principles referable to Order XXXII of the Code of Civil
Procedure. The manner of disposal of the present claim application by the Tribunal without
regard to all the facts and circumstances has only resulted in failure of justice and this manner
of disposal cannot be endorsed. (WORDS 488)
 Part 5 EXERCISE NO. 49

So far as the finding recorded by the trial court regarding statement of DW-1 and DW-
2 is concerned, they stated that they had no knowledge about the present incident. DW-1 has
stated that had such type of incident taken place at the time, date and place of occurrence, he
would have information about the same. Similar statement has been made by DW-2, as DW-2
runs a grossery shop in the vicinity of place occurrence. It is not the case of prosecution that
at the time of incident, they were aware about the offence committed by the accused persons.
They came to know about the commission of the present offence when PW-2 and PW-3
reached at the house of the informant and found PW-1 in his house in a fit condition.
Therefore, prosecution case cannot be disbelieved only on the basis of the statement of DW-1
and DW-2. As far as failure to note the registration number of the concerned Maruti Van by
PW-3 is concerned, it is clear that he was not aware about the commission of the present
offence, as accused persons were known to him. He simply saw that the accused persons took
the victim in the vehicle in question on the pretext of accident of victim's father. Thus, the
submission made by the learned counsel for the appellant in this regard is not acceptable and
the finding recorded by the trial court on this point is also not liable to be interfered with.
The trial court has not found proved the offence under Section 366 IPC against the
accused appellant on the ground that the victim was not recovered, therefore, it is not clear as
to whether the essential ingredients to constitute offence under Section 366 IPC were attracted
in the present matter or not. The finding of the trial court for the offence under Section 363
IPC is clear and based on the evidence available on record. Victim was aged about fifteen
years at the time of occurrence and this fact has been proved by the prosecution beyond
reasonable doubt. No interference is required in the finding of the trial court on this point as
the same is correct. Since victim girl was minor at the time of incident, necessary ingredients
to constitute offence under Section 363 IPC is fully attracted in the present matter. The trial
court has rightly held guilty to the accused appellant for committing the present offence under
Section 363 IPC.
Now the Court comes to the quantum of sentence for the offence under Section 363
IPC. Awarding sentence is always a difficult task which requires balancing of various
considerations. In the present matter, maximum sentence imposed upon the accused appellant
is of five years and a fine of Rs. 5,000/-. Submission of the learned counsel for the appellant is
that out of the maximum sentence imposed upon him, the accused appellant has served-out
about three years sentence, hence a lenient view in the matter be taken. (WORDS 495)
 Part 5 EXERCISE NO. 50

Having heard the learned counsel for the parties, in our opinion, the appeal should be
allowed. Certain facts are not in dispute. The father of the applicant who was in service, died-
in-harness in March, 1987 and for the first time, the application was made by the applicant
after more than four years i. e. in September, 1991. The family thus survived for more than
four years after the death of the applicant's father. Event at that time, the applicant, under the
relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no
doubt true that the case of the applicant was favourably considered by the Departments and
recommendation was made but it has also come on record that in March, 1996 a decision was
taken by the authorities not to give appointment to the applicant on compassionate ground.
From the affidavit-in-reply filed by the authorities in the High Court as also from the finding of
the learned single Judge, it is clear that the applicant had knowledge about rejection of his
application in 1996 itself. Nothing was done by the applicant against the said decision.
Considerable period elapsed and only in 1999, when there was some inter-Departmental
communication and Administrative Officer informed the Chief Engineer vide a letter dated 8th
June, 1999 that the applicant could not be appointed on compassionate ground that the
applicant woke up and filed a writ petition in the High Court.
It is also pertinent to note that the letter of 1999 itself recites that the case of the
applicant for compassionate appointment was considered and the prayer had already been
turned down by the Administrative Department and the said fact had been communicated to
the office of the Chief Engineer. A copy of the said letter was also annexed to the letter of
1999. In our opinion, the learned single Judge was right in dismissing the petition on the
ground of delay and laches by holding that the applicant had not done anything for a
considerable period after March, 1996 when his claim was rejected even though he was
informed about the decision and was very much aware of it. The Division Bench, in our view,
was not justified in setting aside the said order and in directing the authorities to consider the
case of the applicant for compassionate appointment and by giving directions to give other
benefits. We may also observe that when the Division Bench of the High Court was considering
the case of the applicant holding that he had sought' compassion', the Bench ought to have
considered the large issue as well and it is that such an appointment is an exception to the
general rule. Normally, an employment in Government or other public sectors should be open
to all eligible candidates who can come forward to apply and compete with each other. It is in
consonance with Article 14 of the Constitution. On the basis of competitive merits, an
appointment should be made to public office. (WORDS 500)
 Part 5 EXERCISE NO. 51

In the present case, the said notice does indicate that a copy of the notice was also
marked to the petitioner but on a closer scrutiny, we do not find any such evidence of the said
notice having been served on the manufacturer, namely, the petitioner in terms of Clause
2.4.1. In the absence of any such material, which could be shown by the learned Additional
Chief Standing Counsel, we cannot presume that such a notice, which has to be mandatorily
served on the petitioner in terms of Clause 2.4.1 of 2011 Rules read with Section 47, had been
served. This point also deserves notice and will have to be taken care of by the appellate
authority, inasmuch as, the purpose which appears to be for the sending of said notice and
which is mandatory is that the aggrieved manufacturer also has a right to get the sample
analyzed and it is for this reason that now under the 2006 Act and 2011 Rules, the procedure
for sampling and analysis requires collection and preservation of the sample to be tested in
four parts, one part for the aforesaid purpose of an opportunity to the aggrieved manufacturer
or affected person under the Act to get the sample analyzed and tested by a laboratory.
This is also necessary because whether it is suspension or cancellation of licence or
future prosecution, in both proceedings the very foundation of the allegations is the chemical
report of the food analyst. The proceedings so initiated has both civil and penal consequences
and therefore the notice envisaged at that stage of sample collection and analysis has to be
tendered by the Food Safety Officer which is a condition precedent for either the designated
officer or any other authority to take action on such a foundation. If this opportunity is denied
then the protection given under the Act would be rendered nugatory. It is well settled that a
procedure prescribed in law has to be followed and no deviation can save an action in relation
to a statute where the consequences are both civil and penal in nature as in the present case.
The petitioner has made clear statements in the writ petition to the effect that no such
opportunity at this stage was given by the Food Safety Officer and therefore the same
deserves to be considered.
The question of giving improvement notice by the designated officer is the next stage
after the aforesaid procedure has been complied with. Even assuming for the sake of
submissions that the competent designated officer had sent a notice on 7th of May, 2015 then
a reply had been sent by the petitioner alleging compliance to the same by withdrawing the
entire products of that particular batch number. This issue also therefore requires to be gone
into before the appropriate forum as and when raised in accordance with law. The Appellate
Authority will therefore have to take into consideration the aforesaid submissions raised on
behalf of the petitioner. (WORDS 497)
 Part 5 EXERCISE NO. 52

The factual position is not in dispute. The charges against the respondent were of a
serious nature implicating acts of embezzlement and misuse of funds of the educational
institution. The second aspect of the charge related to an allegation of obtaining appointment
on the basis of fabricated documents. The respondent submitted a response to the charge
sheet denying the charges. Admittedly, as the learned Single Judge noted, no date or time was
fixed for the inquiry and no witnesses were examined by the Management. The Inquiry Officer
proceeded to record findings merely on the basis of the charge sheet, the reply submitted by
the respondent and the materials on record. The respondent was not associated with the
inquiry after he had denied the charges nor was any oral evidence adduced in support of the
allegation of misconduct. Since no oral evidence was adduced, there was no cross examination.
In other words, it is evident that absolutely no procedure was followed, consistent with the
principles of natural justice. After the inquiry was concluded, a notice was addressed to the
respondent on 14 December 1993 stating that the charges had been proved and calling upon
him to submit his explanation.
The contention of the respondent is that a copy of the inquiry report was not served
upon him: this aspect has not been inquired into by the learned Single Judge. But the material
on the record in the form of the counter affidavit of the appellant does indicate the position,
even according to the appellant. According to the appellant, though the inquiry report was
submitted to the respondent, he denied receipt of the report whereupon, a copy of the report
was submitted to him by a letter dated 18 December 1993 of which the postal receipt is dated
20 December 1993.
On these facts, there can be no dispute with the legal position that the inquiry was
conducted manifestly in breach of the principles of natural justice. The charges to be inquired
into were of a serious nature involving embezzlement and the obtaining of appointment on the
basis of fabricated documents. Embezzlement involves the diversion of funds and the
conversion of funds of the employer by the employee for his own personal use. These charges
need to be established on the basis of material which must be proved in the disciplinary
proceedings and as part of that process the employee must have a reasonable opportunity of
defending himself, questioning the veracity of the evidence and adducing his own defence
during the course of the disciplinary inquiry. In the present case, there was no inquiry at all.
The judgment of the Supreme Court in Managing Director, ECIL (supra) holds that where a
breach of the principles of natural justice lies in the failure to furnish the report of the Inquiry
Officer to the delinquent employee at the disciplinary proceedings, the Court should cause a
copy of the report to be furnished if he had not already secured it. (WORDS 495)
 Part 5 EXERCISE NO. 53

A perusal of pleadings reveal that although this specific words of plaintiff being always
ready and willing to perform his part of contract in question is mentioned in para 10 of the
plaint, but from considering the total averment of plaint, it is explicitly clear that such intention
is evident from plaint when plaintiff has mentioned that on his insistence defendant had agreed
to execute sale deed and when he reached to office of Sub-Registrar, then defendant absented
herself, so he had again reminded him and then sent legal notice through counsel for execution
of sale deed in compliance of said registered contract. The overall reading of plaint makes it
clear that plaintiff had all along being ready and willing to perform his part of contract in
question. On the basis of pleadings of the parties, trial court had framed specific issue no. 1
and issue no. 6 and held that plaintiff had always being ready and willing to perform his part of
contract.
From the aforementioned sequence of facts and events, it can be safely inferred that
the respondent-plaintiff was always ready and willing to discharge his obligation and perform
his part of the agreement. In my considered opinion, the undisputed facts and events referred
to hereinabove shall amount to sufficient compliance with the requirements of Section 16(c) of
the Specific Relief Act. Taking into consideration the entire facts and circumstances of the case
and the law discussed, in my opinion the impugned judgments passed by the trial Court as well
as the first appellate Court are not erroneous on this point of law.
So far argument of learned counsel for the appellant regarding signature of
respondent-plaintiff being not present on the date of registered deed of agreement to sell is
concerned, this contention is being heard for rejection. A contract need not necessarily be
signed by two parties. It can be oral between the two parties or can be signed by one party
and its acceptance by words and deeds by other parties may complete the formality of
agreement being a contract. In present case, from perusal of proved evidences as held by the
two courts below, it is established fact that defendant-appellant had offered to sell his property
in dispute to plaintiff-respondent for Rs. 85,000/- and executed registered deed for the same
and for acceptance of said offer of the defendant, the plaintiff had not only accepted said offer,
which was mentioned in deed of agreement, but also paid him advance consideration. For offer
of advance consideration on behalf of plaintiff, the acceptance on behalf of defendant was in
form of execution of registered sale deed. Likewise for the offer of defendant-appellant for
execution of registered agreement to sell the acceptance on behalf of plaintiff was in form of
payment of advance consideration and getting it mentioned in deed of agreement to sell. Since
property belong in question was immovable property, therefore, the said agreement was
registered in compliance of mandatory provisions of Registration Act. (WORDS 498)
 Part 5 EXERCISE NO. 54

Submission of the learned counsel for the appellants is that there is general allegation
regarding demand of money. Except to this general allegation there is no other evidence to
connect the appellant Ram Nihal Singh with the said demand. The demand of money for
purchasing the jeep could only be attributed to the husband who would be directly benefited
with the demand. Appellant Ram Nihal Singh who is old aged person could not be attributed
with this demand. Prosecution was also not able to prove that in what manner he would be
directly benefited with the demand. Submission raised by the learned counsel for the
appellants regarding participation of co-accused Ram Nihal Singh has substance. Prosecution
has also not established that the appellant Ram Nihal Singh was making demand for
purchasing the jeep persistently. There is general allegation against the appellant Ram Nihal
Singh. He is father-in-law of the deceased and aged about 55 years. Any demand for
purchasing the jeep could be attributed to the appellant no. 1 Jitendra Singh who was the
husband of the deceased and he was responsible for this demand.
Looking to the nature of the allegation made in the first information report and in the
statement of the prosecution witnesses and also in view of the law laid down by the Hon'ble
Supreme Court in Geeta Mehrotra (Supra) the participation of the appellant Ram Nihal Singh in
the present case appears doubtful. Death of the deceased is the result of burn injuries. There
is no any direct evidence that accused appellant Ram Nihal Singh had actively participated in
burning the deceased. There is also no dying declaration except oral statement of the
prosecution witnesses which is also not specific on the point of participation of the appellant
Ram Nihal Singh. Thus looking to the law laid down by the Hon'ble Supreme Court when there
is no evidence regarding persistent demand of dowry made by the accused appellant Ram
Nihal Singh and also there is no link of the demand with the accused appellant Ram Nihal
Singh and the prosecution could also not specify the role of this appellant, therefore, the
conviction and sentence held by the trial court of the accused appellant Ram Nihal Singh for
the offence under Sections 498-A, 304-B IPC and 4 D.P. Act is not sustainable and appeal on
behalf of Ram Nihal Singh is liable to be allowed. So far as the participation of the appellant
Jitnedra Singh is concerned, it is established beyond reasonable doubt from the evidence that
deceased died within seven years of her marriage and death occurred due to burn injuries
otherwise than under normal circumstances. Demand for purchasing the jeep was also made
which could be attributed to the accused appellant Jitendra Singh, who was solely responsible
for looking after and keeping her wife safe. Prosecution case is also established beyond
reasonable doubt from the evidence that deceased was subjected to cruelty and harassment
soon before her death by the appellant Jitendra Singh for demand of dowry. (WORDS 503)
 Part 5 EXERCISE NO. 55

Sri Shashi Nandan, learned senior counsel appearing on behalf of the petitioners in the
first writ petition contended that the Deputy Registrar has exceeded his jurisdiction in passing
the impugned order dated 5.8.2015. It is urged that the dispute between the parties was in
respect of the election and continuance in office of office bearers of the society and such a
dispute can only be decided by Prescribed Authority under Section 25 (1) of the Act. It is
further submitted that while passing the impugned order, proper opportunity of hearing and to
submit documents was not provided to the petitioners and thus, there is a grave procedural
irregularity. It is submitted that the alleged rival claim set up by Shiv Charan Lal Sharma by
moving application dated 18.12.2014 came to an end, after he submitted his affidavit dated
21.3.2015, wherein he disowned having filed any application or list of office bearers. It is urged
that thereafter the list submitted by the petitioners should have been registered. It is
submitted that Chandra Pal Sharma is not even a member of the general body. He tried to take
benefit of the fact that one of the founder secretary of the society was one Chandra Pal, who is
a different person. It is further submitted that no finding in relation to the elections set up by
Chandra Pal for the years 2010 and 2014 has been recorded in the order dated 5.8.2015. The
Deputy Registrar assuming these elections set up by Chandra Pal Sharma to be valid elections
illegally directed the petitioners to hand over registration certificate of the society to him. It is
further submitted that liberty granted to Chandra Pal to fill up vacancies consequent to certain
resignations and subsequent act on part of the Deputy Registrar in registering the list of office
bearers, submitted by him for the year 2015-16 was wholly illegal. It is submitted that the
election proceedings dated 24.8.2014 set up by Chandra Pal reveals that only five persons
have participated in the elections, whereas the general body comprised of 30 members and
under the bye-laws, the quorum being 2/3 of the total members, was thus not complete.
Consequently, the alleged elections dated 24.8.2014 are exfacie illegal.
On the other hand, Sri Gajendra Pratap Singh, learned senior advocate appearing on
behalf of the committee of management represented by Chandra Pal Sharma in both the
petitions submitted that the registration of the list of office bearers on basis of alleged
elections dated 22.8.2010 was obtained by Manish Sharma by playing fraud. It is submitted
that the Deputy Registrar was misled into registering the list of office bearers on 10.1.2013,
although in the past, request in that regard was made by Chandra Pal Sharma by application
dated 4.9.2010, soon after the elections were held on 28.8.2010. It is further submitted that
the claim made by Manish Sharma was based on fraud and manipulated documents and in
such circumstances, the Deputy Registrar was perfectly justified in entering into the
controversy. (WORDS 500)
 Part 5 EXERCISE NO. 56
Impugned order dated 13 December 2013 of the learned Single Judge is a common order by
which both the writ petitions have been dismissed. One writ petition, namely, Writ Petition No. 61733 of
2013 was filed by the appellant while the other writ petition was filed by Ritu Saxena. The dispute pertains
to the appointment on the post of Shiksha Mitra. The appellant applied on 20 November 2005 for selection
to the said post pursuant to an advertisement that was issued on 27 October 2005. The advertisement
required that application could be submitted upto 20 November 2005 by 5.00 pm. The appellant, however,
submitted her domicile certificate subsequently on 22 January 2013. The case of the appellant is that the
candidature of the appellant who was placed higher in rank than Ritu Saxena was not considered since the
domicile certificate was not enclosed with the application form.

The appellant earlier filed Writ Petition No. 47222 of 2007 before this Court following the rejection
of the representation by the District Magistrate. While disposing of the earlier writ petition, the learned
Single Judge, in the judgment dated 9 January 2013, held that though the domicile certificate was issued
to the appellant by the Sub-Divisional Magistrate, Rath on 25 November 2005, but it was cancelled on 6
December 2005 merely to favour Ritu Saxena. The learned Single Judge held that there was no delay on
the part of the appellant in submitting the domicile certificate. The order of the District Magistrate was,
therefore, quashed and he was directed to consider the matter afresh. Pursuant to the order of the learned
Single Judge dated 9 January 2013, the District Magistrate Hamirpur passed a fresh order on 26
September 2013. The District Magistrate held that the selection of Ritu Saxena on the post of Shiksha
Mitra in Village Atrauliya, Tehsil Rath was not made in accordance with law and, accordingly, her
appointment was cancelled. However, even after noticing that the appellant was placed higher than Ritu
Saxena in order of merit, the District Magistrate did not pass any order for her appointment because on 2
June 2010, a Government Order was issued by which, with effect from 1 April 2010, a ban was imposed on
making fresh appointments on the post of Shiksha Mitra. In the circumstances, the District Magistrate
referred the matter to the State Government holding that it was not possible for him to take a decision at
his level. Thereupon, the appellant moved a writ petition before the learned Single Judge. The learned
Single Judge found merit in the grievance of the appellant in regard to the manner in which her domicile
certificate was cancelled, but nonetheless observed that since fresh appointments to the post of Shiksha
Mitra could not be made, no interference was required in the order of the District Magistrate. The order
which has been passed by the District Magistrate on 26 September 2013 would indicate that he has found
that the grievance of the appellant is genuine. (WORDS 499)

As noted earlier, an appointment had been made pursuant to the selection process which
appointment has been cancelled by the order of the District Magistrate on the ground that the appellant
ranked higher in merit. If that be the position, it would be appropriate for the District Magistrate to treat
the case of the appellant as falling beyond the purview of the Government Order which bans fresh
recruitments to the post of Shiksha Mitra with effect from 1 April 2010. In the circumstances, we are of the
view that the order passed by the learned Single Judge requires interference in the Special Appeal. The
order of the learned Single Judge dismissing the writ petition is, therefore, set aside and while allowing this
Special Appeal, we direct the District Magistrate to reconsider the case of the appellant having due regard
to the fact that the ban on fresh recruitments with effect from 1 April 2010 shall not come in the way of
the appellant as the appellant had applied for the post in pursuance of the advertisement dated 27 October
2005.
 Part 5 EXERCISE NO. 57

The petitioner, who retired as a Dean in the Faculty of Engineering and Technology of
the Banaras Hindu University, Varanasi1 in January 2011 but who was subsequently re-
employed as a Professor in the Department of Civil Engineering in the Indian Institute of
Technology, Varanasi upto 30 July 2014, has filed this petition to assail the order dated 26
April 2014 by which he was informed by the Institute that in view of the complaint that was
received from a girl student of his Department regarding allegation of sexual misconduct and in
view of the report submitted by the Women's Grievance Cell which examined the complaint, his
re-employment as a Professor in the Institute stands discontinued with immediate effect.
It transpires from the records of the writ petition that after the petitioner retired as a
Dean in the Faculty of Engineering and Technology of the University in the month of January
2011, he applied for re-employment. A letter dated 20 July 2012 was sent to the petitioner by
the University informing him that the Executive Council of the University in its meeting held on
29 July 2012 had been pleased to re-employ him as a Professor and that if he was willing to
accept the offer, he could submit his joining report to the Director of the Institute. The
petitioner accepted the terms and conditions stipulated in the order and was deputed to the
Department of Civil Engineering of the Institute for a period of one year or till the post was
filled up on a regular basis. Before the term of one year was come to an end on 30 July 2013,
the petitioner moved an application for extension of his re-employment as a Professor. It
needs to be noted that the erstwhile Institute of Technology of the University became the
Indian Institute of Technology, Varanasi with effect from 29 June 2012 under the provisions of
the Institutes of Technology (Amendment) Act, 2012. A communication dated 10/11 December
2013 was sent to the petitioner by the Institute extending his re-employment for a further
period of one year with effect from 30 July 2013 on the existing terms and conditions. The
term of re-employment of the petitioner as a Professor in the Institute, therefore, stood
extended upto 30 July 2014.
Sri Ajit Kumar Singh, learned counsel appearing for the University and the Institute,
however, submitted that in view of the seriousness of the allegations that had been made
against the petitioner by a girl student of his Department which allegations were found to be
true by the Committee consisting of Senior Professors of the Departments of the Institute, the
re-employment of the petitioner as a Professor in the Department of Civil Engineering was
discontinued and that in such circumstances, a detailed enquiry was not required to be held
nor a copy of the report was required to be served on the petitioner. Learned counsel also
submitted that the petitioner was re-employed by the Institute for a further period of one year
with effect from 30 July 2013. (WORDS 506)
 Part 5 EXERCISE NO. 58

The directions which have been issued by the learned Single Judge in paragraphs 15,
16 and 17 of the impugned judgment and order have not arisen from the suit or proceedings in
which the original decree was passed nor do those directions have any reasonable or
proximate relationship with the lis between the plaintiffs and the defendants. Ex facie the
directions in paragraphs 15, 16 and 17 of the impugned judgment and order relate to matters
not arising out of the suit. In the circumstances, those directions cannot be construed as
directions in a judgment passed in the exercise of the appellate jurisdiction in respect of a
decree or order made by a court subject to the superintendence of the High Court. The special
appeal is, hence, maintainable.
On the merits of the special appeal, we find considerable substance in the submission
which has been urged on behalf of the appellants. The second appeal filed by the Basic Shiksha
Adhikari was dismissed by the learned Single Judge on the ground that it was not maintainable
since the officer was not competent to file an appeal against the judgment rendered in the first
appeal by the Additional District Judge, Etawah in the absence of a sanction or approval of the
State. If the appeal was not maintainable, it ought to have been dismissed as such and the
matter would rest there. However, the learned Single Judge has transgressed the jurisdiction
of the Court in a second appeal by issuing directions of the nature which are contained in
paragraphs 15, 16 and 17 of the impugned judgment and order. Those directions had
absolutely no nexus to the lis between the plaintiffs and the defendants, and are akin to the
exercise of the jurisdiction under Article 226 of the Constitution by the learned Single Judge.
While exercising the jurisdiction in the second appeal, the Court has to deduce as to whether a
substantial question of law arises for the consideration by the Court. Holding that the second
appeal was not maintainable, the learned Single Judge was not justified in issuing the
directions as contained in paragraphs 15, 16 and 17 of the impugned judgment and order,
which we have extracted in the present judgment.
In the circumstances, we are inclined to allow the special appeal. However, we
expressly clarify that nothing contained in this order shall amount to any expression of opinion
by the Court on the merits of the decree or order of the first appellate court which has ensured
to the benefit of the plaintiffs and the plaintiffs would be at liberty to pursue their remedy to
execute the same according to law. The special appeal filed by the appellants is allowed by
setting aside the directions of the learned Single Judge contained in paragraphs 15, 16 and 17
of the impugned judgment and order dated 28 May 2013. The special appeal is, accordingly,
disposed of. There shall be no order as to costs. (WORDS 493)
 Part 5 EXERCISE NO. 59

Sri Gupta, learned senior counsel for the petitioners, has advanced his submissions,
firstly contending that the impugned order is in violation of the procedure prescribed under the
2006 Act read with the rules and regulations framed thereunder, inasmuch as principles of
natural justice statutorily incorporated in the said provisions have been clearly violated. He
further submits that nothing exists to attract the ingredients so as to warrant suspending of
the licence. He then submits that even otherwise the petitioner has been adversely affected
and his right to freedom of practicing a trade under Article 19(1)(g) of the Constitution of India
also stands violated. He, therefore, submits that even if the petitioner has approached the
Appellate Authority by filing of an appeal, the same does not take away his right to maintain
this writ petition in the aforesaid background when the entire unit has come to a stand still and
not only the manufacturing process has been stopped but all others involved with the said unit
including labourers and consumers have been unnecessarily been put to a loss.
Learned counsel further submits that in the wake of the said background this petition
has been filed and this Court should come forward to protect the interest of the petitioner
keeping in view the submissions that have been advanced, particularly, the non-fulfilment of
the conditions and the procedure having not been followed as envisaged in law. Sri Gupta in
order to substantiate his submissions has invited the attention of the court to Section 32 of the
Act to contend that the requirement under Section 32 is for giving of an improvement notice
and in such a situation the other consequences of at least 14 days time follows. This is
necessary as the petitioner has a right under the 2006 Act read with the 2011 rules framed
thereunder to seek a remedy in relation to sample analysis and testing and raise objections in
this regard. This having not been done and not having been established either by any recital
contained in the impugned order or in the order of withdrawal dated 7.5.2015, the procedure
has admittedly been violated and, therefore, even if an appeal is filed the said orders deserves
to be quashed.
Sri Gupta then contends that apart from this the provision meant for sampling under
Section 47 of the Act has to be applied in terms of the 2011 Rules which makes a provision
under Clause 2.4.1 for putting the manufacturer to notice. He has invited the attention of the
Court to the averment categorically made in this regard in paragraph nos. 25 to 39 of the writ
petition to contend that no opportunity of any kind whatsoever has been given at any stage. In
the said background, Sri Gupta submits that the statutory provision having been violated and
clearly established and there being nothing in the impugned order or the order of withdrawal to
contradict the same, the writ petition deserves to be entertained under Article 226 of the
Constitution of India. (WORDS 501)
 Part 5 EXERCISE NO. 60

The record revealed that the State Government was seized with the issue as to
whether after the order of the Hearing Authority dated 25.04.2008, publication of the modified
scheme was required as per law or not, but no final decision could be taken in this regard and
ultimately as per the note sheet dated 31.05.2013, the State Government proposed to
cancel/withdraw the proposal for modification of the scheme dated 05.08.2005 but no final
decision could be taken even on this issue and the matter remained pending awaiting the
opinion of the legal remembrancer in the matter.
In view of the above discussion, this Court is of the view that in the absence of any
decision of the State Government approving the modified scheme dated 05.08.2005 as
envisaged under Section 102 of the Act, 1988 as per the dictum in Rasid Javed's case (supra)
the route in question continues to be a notified nationalized route in respect of which the State
Transport Undertaking and the persons mentioned in the notified scheme or persons legally
entitled to ply as successor in interest, are entitled to ply. It being so, the rejection of the
application of the opposite parties for grant of permit on the said route on the ground of it
being a nationalized route did not suffer from any error and it would not be amenable to an
appeal under Section 89 of the Act, 1988. It being so, the very basis for rejection of the
application for impleadment filed by the petitioner herein by the Appellate Authority as also
denying him a right of hearing falls to the ground. The remedy was by way of a revision under
Section 90 of the Act, 1988 and under the proviso to Section 90 no order could be passed in
such revision unless the person who would be prejudiced by such order or given a reasonable
opportunity of being heard. Had the private opposite parties filed such a revision, the revisional
Court would have considered the question of locus standi.
Suffice it to say that a specific assertion has been made in the paragraph 4 of the writ
petition that the applicants and their predecessors in interest were permitted to ply the vehicle
on the route in question as per the scheme notified which has not been specifically and
categorically denied either by the private opposite party or by the State in their counter
affidavit. In fact, it has been admitted in the counter affidavit that the petitioner is plying on
the route in question. During the course of the argument, Shri Saxena himself stated that the
petitioner was plying on the route in question in terms of some interim order passed by the
revisional authority. Had it been a non notified route then the plea of the opposite parties as
regards locus standi may have carried weight in view of the authorities cited by them but it
being a notified route, it can not be said that he does not have any locus standi to maintain
this petition. (WORDS 506)
 Part 5 EXERCISE NO. 61

As has been recorded in the impugned judgment of the High Court, when the writ
petition was taken up for admission on 14th May, 2010, the fact that the petitioners had
withdrawn the condition with regard to the provision of Foreign Exchange Rate Variation, was
considered and it was also observed that such subsequent withdrawal could not affect the bid
of the petitioners. However, on the submission made on behalf of the petitioners that the
aforesaid condition was also included in the R.F.P. submitted by respondent no. 4, notice was
issued in the matter. Consequently, while taking up the writ petition for final disposal, the
issues framed for deciding the writ petition were centered round the said question. In fact, the
first issue, which was framed, was whether a bidder could amend its bid by withdrawing a
condition of the bid document, whereby the bid was considered to be non-responsive. The
second issue, which is an offshoot of the first issue, is whether a bidder would be entitled to
contend that a non-responsive bid be treated as responsive since the offending condition was
withdrawn after the bid documents had been opened. The third issue raised was with regard to
the bid submitted by respondent no. 4 and whether the same could be treated as responsive
although the price offered by the said respondent contained a foreign exchange rate
component which was to be considered at a particular rate.
In deciding the said issues, the High Court held that since the terms and conditions of
the price to be firm and fixed was one of the more important ingredients of the tender, the
submission of a bid which violated the said condition rendered the bid non-responsive. The
High Court observed that this was not a case of clerical mistake in the bid documents, but a
conscious change in the terms and conditions of the bid as submitted by the petitioners, which
could not cure the initial disqualification when the bids were submitted. The High Court took
note of the fact that the bid of respondent no. 4 contained the condition that its price would be
in Indian rupees with a foreign component which would be converted in Indian rupees as on
the date of opening of the bid. The High Court observed that the same did not violate the
conditions of the R.F.P. and that the said condition ensured that the price would be firm and
fixed during the period of performance of the contract.
The stand taken on behalf of the petitioners was strongly opposed on behalf of the
respondent no.4, to whom the contract had been awarded. Mr. Ashok Desai, learned Senior
Advocate, pointed out that the condition relating to the Foreign Exchange Rate Variation and
the proposal of the respondent no. 4 in relation thereto indicated a firm rate of exchange as on
the date of the opening of the commercial bids and there would be no escalation of such offer
during the subsistence of the contract, as envisaged in the tender documents. (WORDS 505)
 Part 5 EXERCISE NO. 62

After completion of the investigation, charge-sheet under Section 302 IPC was filed
against the appellant. In order to prove its accusations against the appellant, the prosecution
examined in all seven witnesses, out of whom PW-1 and PW-2 were the eye-witnesses. The
documents prepared during the investigation were also filed in support of the case. The
appellant in his statement recorded under Section 313 of the Code of Criminal Procedure
denied his involvement in the crime. His plea was that a false case has been registered against
him. However, he led no defence evidence. Placing reliance on the evidence of the eye-
witnesses and other evidence adduced on record, the appellant as noted above was found
guilty. The appeal of the appellant against his conviction came to be dismissed by the High
Court.
Mr. Arvind Kumar, learned counsel appearing on behalf of the appellant, submitted that
the High Court committed a serious error in appreciating the evidence of the alleged eye-
witnesses and undue importance to the recovery of the weapon of offence (knife) has been
given. It was urged that the High Court has failed to take cognizance of the fact that no motive
has been attributed to the appellant for commission of the offence, therefore, the appellant
could not have been found guilty of the charge levelled against him. Learned counsel next
submitted that non-examination of Sumit Singh, who allegedly lodged the First Information
Report of the crime in the Police Station and owner of Sandeep Pan Shop, is fatal to the
prosecution case and both these witnesses were intentionally withheld by the prosecution with
a view to conceal the true facts of the case. Thus, according to the learned counsel, the
prosecution has failed to establish the charge of murder against the appellant beyond
reasonable doubt. Per contra, Mr. Sushil Singh, learned counsel appearing on behalf of the
State, supported the judgments of the courts below. Mr. Singh submitted that the evidence of
the eye-witnesses supported by other ocular and documentary evidence has been rightly
examined and appreciated by the Trial Court as well as by the High Court. He submitted that
no adverse inference can be drawn against the prosecution for non-examination of the
informant and other witness because the prosecution has fully established the charge against
the appellant beyond reasonable doubt by leading reliable and convincing evidence. Learned
counsel further submitted that in the presence of direct evidence, motive recedes to the
background and, therefore, it is not necessary for the prosecution to prove the motive of the
appellant to commit the murder of the deceased.
We are unable to accept the contention of the learned counsel for the appellant that
the conduct of the eye-witnesses is unnatural as they had not disclosed the genesis of the
incident to the members of the family of the deceased on the same day or they had not
immediately reported the matter to the police. (WORDS 484)
 Part 5 EXERCISE NO. 63

Sri S.P. Gupta, the learned Senior Counsel contended that the warrant of authorization
was not issued in the name of the petitioners and, therefore, the search and seizure operations
carried out at their premises was wholly illegal, void and liable to be quashed. The learned
Senior Counsel contended that there was no material to initiate search and seizure operation
against the petitioners at their premises and, consequently, the respondents have proceeded
illegally without any application of mind. Further, no such material or reasons to believe has
been produced before the Court to justify their action. The learned counsel contended that the
search was only conducted at the premises of the petitioners and not at the premises of the
persons mentioned in the warrant of authorization. It was urged that based on this illegal
search, the petitioners' bank accounts and lockers were seized or attached illegally which
action was also liable to be quashed by the Court as no search warrant was served by the
respondents relating to lockers of the petitioners. It was urged that there was no material or
information on the basis of which the lockers of the petitioners were seized and, therefore, the
action of the respondents was wholly illegal and without jurisdiction.
On the other hand, the learned Senior Counsel for the department, Sri Bharat Ji
Agarwal justified the action of the department in conducting the search at the premises
mentioned in the warrant of authorization. The learned Senior Counsel contended that the
search was conducted at premises No.455, Civil Lines, Moradabad which is one composite
property and has not been partitioned by metes and bounds nor was there anything to show
that each person mentioned in the warrant of authorization as well as the petitioners had
separate identifiable portions. The statements of the petitioners recorded under Section 132(4)
does not indicate that the petitioners' portion was separate. On the other hand, the petitioners
themselves admit that there is a common entrance to premises No.455 and there is common
parking lot and a common guardroom.
Having heard the learned counsel for the parties, we find that a search is necessary to
secure evidence, which is not likely to be made available by issue of summons. Tax authorities
have to resort to search and seizure when there is evidence of undisclosed documents or
assets which have not been and would not be disclosed in ordinary course. Section 132 of the
Act read with Rule 112 of the Rules is intended to achieve two limited objectives, namely, to
get hold of evidence bearing on the tax liability of a person which the said person is seeking to
withhold from the assessing authority and to get hold of assets representing income believed
to be undisclosed income and applying so much of them as may be necessary in discharge of
the existing and anticipated tax liability of the person concerned. (WORDS 480)
 Part 5 EXERCISE NO. 64

We want to point out by referring to Section 170 (2) Cr.P.C. that it is the duty of the
officer in charge of the police station by which the case has been investigated into to obtain
bonds from persons who are acquainted with the facts and circumstances of the case of an
undertaking that they shall appear before the court to support the charges. Thus, the primary
duty of production of a witness lies with the police. It is invariably being seen that the above
statutory function of the police is being flaunted with impunity. This section might not have
been referred to by the Supreme Court in Shailendra Kumar (supra), when their Lordships was
pointing out the above proposition of law that it was the duty of the officer-in-charge of the
police station by which the case had been investigated into, to remain present before the Court
of Sessions with witnesses on day to day basis during hearing of such cases of serious charges
which ordinary go to the court of Sessions and the prosecution evidence must not to be shut
out in want of production of witnesses. We are of the opinion that here in the present case it
could not be said that the learned trial judge was acting in haste. The learned judge was giving
sufficient opportunity to the State of U.P. for producing the witnesses, but finding that no
witness was produced, he was finally shutting out the prosecution case.
What we further find is that the learned trial judge has not examined any witness. As
such, there was no requirement under law to examine the accused persons under Section 313
of the Cr.P.C. The provision of Section 313 Cr.P.C. requires the explanation of the accused
persons to be obtained through their examination only when the evidence indicates certain
circumstances appearing against them towards their culpability. If there was no evidence then
there could not be any circumstance appearing from evidence against any of the accused and
as such there could not be any legal requirement for any court to examine an accused under
Section 313 Cr.P.C. We are saddened to find that the highest court of the District was acting
mechanically to observe the formality of law as it was never required to be observed in
absence of any evidence. The F.I.R. is not the evidence. It might be a document, value thereof
has repeatedly been pointed out of as being a mere statement which could be used for
corroborating or contradicting of the maker of document. The contents of such a document
could not be utilised to infer the circumstances appearing against the accused from evidence,
because a mere statement and evidence are two different things as per the simple definition of
the terms. The Evidence is defined by section 3 of the Indian Evidence Act and as such, we find
that that particular exercise of the learned Sessions Judge was not required to be made by law.
(WORDS 495)
 Part 5 EXERCISE NO. 65

In the earlier suit being SCC suit no.77 of 1980, petitioner had filed written statement.
In the said written statement it had been pleaded that apart from Kashi Ram-plaintiff, his
brother Sagar Mal was also owner landlord of the property in dispute and suit was bad for non-
joinder of necessary party. The earlier suit was dismissed for eviction on the ground that entire
arrears of rent had been deposited by the tenant on the first date of hearing. Kashi Ram who
was also plaintiff of the earlier suit was permitted to withdraw the amount deposited by the
tenant. Against the said judgment and decree Kashi Ram-plaintiff landlord filed SCC revision
no.62 of 1982. The revision was dismissed on 15.9.1983 by A.D.J./Special Judge, Muzaffar
Nagar. In respect of question of denial of title it was held in the said judgment by the revisional
court that the allegation of the tenant in the written statement that plaintiff alone was not the
landlord amounted to denial of title.

However, it was further observed that as denial had taken place during the pendency
of the suit i.e. in the written statement hence eviction on the ground of denial of title could not
be sought for and granted in the same suit. It was further observed that landlord could file a
fresh suit for eviction on the basis of the said denial. In view of the said observations, later suit
for eviction giving rise to the instant writ petition was filed. In the second suit giving rise to the
instant writ petition tenant pleaded that he had not denied the title of the landlord Kashi Ram.
Tenant further pleaded that as landlord refused to accept the rent hence he deposited the
same in the earlier concluded suit. Tenant on 28.8.1984 also deposited the entire amount of
rent, interest and cost of the suit and claimed the benefit of Section 20(4) of the Act. In
respect of denial of title JSCC, held that the assertion of the tenant in the written statement
filed in the earlier suit that Kashi Ram alone was not the landlord did not amount to denial of
title. In respect of deposit of rent made by the tenant in the earlier concluded suit trial court
held that the said deposit was valid and in view of this tenant was not defaulter when notice
terminating the tenancy and demanding the rent was given by landlord to him i.e. notice dated
1.2.1984. In respect of benefit of Section 20(4) of the Act the trial court held that the deposit
was made by the tenant after the first date of hearing hence he was not entitled to the benefit
of Section 20(4) of the Act. The trial court therefore dismissed the suit on the ground that
there was no denial of title and notice of termination of tenancy and demand of rent was
invalide as at the time of notice tenant was not defaulter. The trial court therefore dismissed
the suit and permitted the landlord to withdraw the amount deposited by the tenant. (508)
 Part 5 EXERCISE NO. 66

The injunction application was contested by the defendant-appellant by filing written

statement pleading therein that he is owner and in possession over the suit property and the
same was bequeathed in his favour by his maternal grandfather late Surya Prasad and the
alleged will in favour of Smt. Kanti Sachan is forged and fictitious document. The defendant-
appellant set up an unregistered will dated 28-06-1997 executed by late Surya Prasad in his
favour. It was also alleged that Smt. Kanti Sachan had no right to get free hold deed executed
in her favour and the sale deed, if any, has been executed in favour of the plaintiff-respondent
no. 1, the same is illegal and ineffective.
The trial court found that three ingredients for grant of temporary injunction namely;
prima facie case, balance of conveyance and irreparable loss were in favour of the plaintiff-
respondent no. 1 and accordingly granted temporary injunction. The court below further held
that the plaintiff has a registered sale deed of the suit property in his favour and he has been
able to trace the title of his vendor on the basis of a registered will deed and free hold deed
and thus the prima-facie case was in his favour. In respect of evidence adduced by the
defendant-appellant in the form of various receipts issued to establish that he was running a
marriage hall over the suit property, it was disbelieved by the trial court on the finding that the
same appears to have been prepared on one day in the same ink and handwriting. The claim
of the defendant-appellant was based on the basis of an unregistered will. Whereas the
plaintiff-respondent no. 1 has set up the case on the basis of a registered will in favour of his
vendor who happened to be the daughter of late Surya Prasad. Further there was a registered
free hold deed executed in favour of the vendor of the plaintiff-respondent no. 1 and the
plaintiff was claiming rights on the basis of a registered sale deed in his favour executed by a
person who had a registered free hold deed in her favour. Thus there was a serious issue
required to be tried and there was a prima-facie case in favour of the plaintiff-respondent.
Insofar far as the evidence in the form of receipts filed by the defendant-appellant are
concerned, the trial court found that they were prepared in the same ink and handwriting,
hence, disbelieved the same. We do not find any illegality in the said finding. Learned counsel
for the appellant has placed special emphasis on this argument that the court below has failed
to record the fact that possession of the respondent no.1/plaintiff on the suit property has
been prima facie established, he submits further that a person who is not in possession cannot
seek relief of injunction even then the court below has granted temporary injunction in favour
of the respondent no.1/plaintiff. (WORDS 486)
 Part 5 EXERCISE NO. 67

Learned counsel appearing for the appellants has placed reliance on the decision of the
Lahore High Court. The learned Judge held that removal of the name of the absentee co-sharer
from revenue records at the instance of other co-sharers is an overt act amounting to ouster
and commences adverse possession of the co-sharers in possession, the reason being that
removal of the name was done openly and if the absentee co-sharers would have taken an
interest in the land, he would not have failed to notice of it in the ordinary course and hence
his knowledge of the adverse claim for other co-sharer may be reasonably presumed.
In reply, learned counsel for the respondents has also placed reliance. The learned
Single Judge held that if a property belongs to several co-sharers and one co-sharer is in
possession of the entire property, his possession cannot be deemed to be adverse to other co-
sharers and he must be deemed to be in possession on behalf of all other co-sharers and
adverse possession cannot be founded on the basis of such exclusive possession, unless there
has been ouster of other co-sharers. Regarding mutation in the revenue record learned Judge
held that mutation in the name of one co-sharer cannot be any indication of adverse
possession until it is shown that it was obtained after a clear declaration to the effect that title
of other co-sharers was denied.
In our view, the correct legal position is that possession of a property belonging to
several co-sharers by one co-sharer shall be deemed that he possess the property on behalf of
the other co-sharers unless there has been a clear ouster by denying the title of other co-
sharers and mutation in the revenue record in the name of one co-sharer would not amount to
ouster unless there is a clear declaration that title of the other co-sharers was denied.
After the death of Hira Singh, one collateral Smt. Har Kaur got her name mutated and
took possession, which was questioned by Rupa Singh. Both the parties were litigating and
ultimately the court decided in favour of Rupa Singh, who got possession of the land and his
name was mutated in the revenue records. After the death of Rupa Singh, his grandsons also
got their names mutated, which was challenged unsuccessfully by the plaintiff. On the facts
proved in the case in hand, we are of the view that the appellants have proved that their
possession of the land in question is in continuity for more than the statutory period, in
publicity and adverse to the Jagjit Singh and his other collateral and they have perfected their
title over the land by adverse possession. We, therefore, find merit in the present appeal and
accordingly it is allowed by setting aside the impugned judgment and the judgment of the trial
court is restored. Consequently, suit filed by the plaintiff is dismissed. We direct the parties to
bear their own costs. (WORDS 492)
 Part 5 EXERCISE NO. 68

Learned counsel for the contesting respondents submits that the Assistant Registrar
was well within his jurisdiction to have registered the list of office bearers keeping in view the
proviso contained in Section 4 of the Societies Registration Act as amended and applicable in
the State of UP. He submits that the Assistant Registrar was within his authority to invite
objections and thereafter register the list of office bearers, which has been done in the instant
case. He further submits that the Election Officer has colluded with the appellants and has not
appeared before the Assistant Registrar, which would not amount to lack of any evidence in
support of the elections dated 14.9.2008. He further submits that the list of office bearers of
the contesting respondents is a valid list and the contention raised on behalf of the appellants
is without any substance.
Having heard learned counsel for the parties, the first issue which has to be
determined was the validity of the meeting that had been convened for the purpose of holding
of the elections dated 14.9.2008. The meeting ought to have been convened by the outgoing
committee and it could not have been a decision by persons who are not entitled to proceed
with the elections. The order of the Assistant Registrar does not reflect on this issue and even
otherwise the same would be a matter of consideration by the prescribed authority while
proceeding to consider any doubt or dispute with regard to the elections of office bearers. It is
also on record that the elections which had been convened in the year 2004 were never held
and there was an ongoing dispute with regard to the alleged induction of 76 new members. It
is also on record that the Joint Director of Education had found 328 members entitled to
participate in election, which was a piece of evidence to be looked into before finalizing the
electoral college. Apart from this, if the elections of the committee of management of the
society were not held within time, then after such a finding is recorded by the prescribed
authority, it is the Assistant Registrar who can proceed to hold the elections under Sub Section
2 of Section 25 of the Act. In the instant case, the elections were not held after 2001.
For all the aforesaid reasons, the order of the Assistant Registrar dated 20.3.2010 is
unsustainable in law. In our opinion, the learned Single Judge ought to have set aside the
order of the Assistant Registrar and remitted the matter to the prescribed authority for
decision in accordance with the rules and the provisions of Section 25 of the Societies
Registration Act, 1860. The learned Single Judge, therefore, fell in error in relegating the
appellants on the ground of availability of alternative remedy without setting aside the order of
the Assistant Registrar who was bound to refer the dispute in view of the provisions referred to
herein above. (WORDS 490)
 Part 5 EXERCISE NO. 69

Having heard the learned counsel for the parties, the court finds that the directions
given by the learned Single Judge is in consonance with the policy framed by the Mandi Samiti.
A perusal of the policy indicates that priority was to be given to those traders who had no
shops allotted to them and who were paying the Mandi fee. Clause 1 of the scheme indicates
that a list would be prepared from those eligible traders, who had no shop allotted in their
name and who were paying Mandi Fee. Clause 1 indicated that the list would be prepared in
the descending order, namely, that a trader who was paying the highest fee would be placed at
serial no.1 and a person paying a lower Mandi fee would come at serial no. 2 and so forth.
In the light of this provision, the learned Single Judge found that there were 147
applicants and that the total number of shops constructed were 74 in number. The learned
Single Judge accordingly directed that the Mandi Samiti would prepare a list of those applicants
who do not have a shop in the market yard either in the individual name or even as a partner
of a firm. Such direction, in our view, is in consonance with the scheme framed by the Mandi
Samiti namely that the shops would be allotted to those traders who do not have a shop. The
contention of the learned counsel for the appellant in Special Appeal No.272 of 2009 is
consequently bereft of merit. At this stage, the contention of the learned counsel for the
appellant that the Mandi Samiti has itself certified that the appellant do not have a shop and
have arbitrarily been ousted from the list and therefore a direction should be issued is also
bereft of merit. Such information was not before the learned Single Judge nor such documents
could be considered in the appeal.
The submission of the learned counsel for the appellant is that there was no error
apparent on the face of the record and consequently the order could not be reviewed by the
learned Single Judge is patently bereft of merit. He further submits that earlier order directing
the shops to be allocated by draw of lots was in consonance with clause 6 of the scheme is
wholly erroneous and misconceived. From a combined reading of clauses 1 and 6 of the
scheme, it is clear that the list of eligible candidates who do not have a shop in the market
yard was to be prepared in the descending order on the basis of the market fee payable by
such applicants. The court clarified the scheme by holding that where the number of applicants
are less than or equal than the number of shops, then in such an eventuality, the shops would
be allocated as per their names in the list and that the use of lottery will not be for allocation
of the shops but only for the choice of shops. (WORDS 502)
 Part 5 EXERCISE NO. 70

The question of deemed confirmation would arise provided that there is a complete
embargo on the powers of the employer/authority to extend the period of probation beyond a
certain limit. In absence of any indication to the contrary in the order of appointment or
service rules, the probationer shall not be deemed to be confirmed automatically merely
because he has completed the probation period and after expiry of the same has been
permitted to continue on the post. In such circumstances, it would amount that probation
period has been extended by necessary implication. However, where the rules prohibit
extension of probation period beyond a particular limit and the employee is permitted to
continue in service after completion of maximum period of probation without an express order
of confirmation, he would be deemed to have been confirmed because his continuation in
probation by implication stands negatived by the statutory rules.
The question of deemed confirmation in service jurisprudence, which is dependent
upon the language of the relevant service rules, has been the subject-matter of consideration
before this Court, times without number in various decisions and there are three lines of cases
on this point. One line of cases is where in the service rules or in the letter of appointment a
period of probation is specified and power to extend the same is also conferred upon the
authority without prescribing any maximum period of probation and if the officer is continued
beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such
cases there is no bar against termination at any point of time after expiry of the period of
probation. The other line of cases is that where while there is a provision in the rules for initial
probation and extension thereof, a maximum period for such extension is also provided beyond
which it is not permissible to extend probation. The inference in such cases is that the officer
concerned is deemed to have been confirmed upon expiry of the maximum period of probation
in case before its expiry the order of termination has not been passed. The last line of cases is
where, though under the rules maximum period of probation is prescribed, but the same
requires a specific act on the part of the employer by issuing an order of confirmation and of
passing a test for the purposes of confirmation.
In view of the above, the law on the issue emerges that as to whether person who had
been working on the post after expiry of the probation period could claim confirmation
automatically always depends upon the terms and conditions incorporated in his letter of
appointment/promotion or the statutory rules. In case, the rules do not permit extension of
probation period beyond a certain limit and there is no other requirement under the statutory
rules to pass any test etc, the employee can claim deemed confirmation. Therefore, the
statutory rules applicable in the case of an employee and his letter of appointment etc., are to
be examined meticulously. (WORDS 505)
 Part 5 EXERCISE NO. 71

The grievance of the writ petitioner who has been working in the rank of a Radio
Mechanic in the Assam Rifles was that the Ministry of Home Affairs and the Director General of
Assam Rifles having accepted that the members of the Assam Rifles, should be given the same
rank and pay structure as was given to other central paramilitary forces, but the same had
been denied to them. It was pleaded that as the Ministry of Home Affairs had conveyed its
decision to rationalize the rank structure of non-gazetted personnel of central paramilitary
forces, equal pay structure in other ranks including the Radio Mechanics in the Assam Rifles
could not be denied. His further grievance was that after the implementation of the Fourth Pay
Commission, the pay of the Head Constable and Radio Mechanic was fixed in the pay scale of
Rs. 4000-6000, without any discrimination between the general duty and technical categories
but the discrimination surfaced when higher pay scale of Rs. 5000-8000 was given to the
Radio Mechanics working in the BSF, denying the same pay scale to the Radio Mechanics in the
Assam Rifles. It was also pointed out that the Radio Mechanics working in the Delhi Police
organization had been given a much higher pay scale, which was being denied to the similar
rank holders in the Assam Rifles.
Mr. B. Dutta, learned Additional Solicitor General, appearing for the Union of India
contended that the direction given by the High Court is manifestly contrary to the settled legal
position enunciated by this Court in several decisions that pay fixation is essentially an
executive function ordinarily undertaken by an expert body like the Pay Commission, whose
recommendations are entitled to a great weight though not binding on the Government. It
was argued that the recommendations of an expert body are not justiciable since the Court is
not equipped to take upon itself the task of job evaluation, which is a complex exercise.
Mr. Ranjit Kumar, learned senior counsel, appearing on behalf of the respondent, on
the other hand, submitted that the petitioners having themselves admitted that there was an
anomaly in the pay scales of the personnel of Assam Rifles, particularly the Radio Mechanics,
as compared to their counterparts in other paramilitary forces, the High Court was fully
justified in giving the impugned directions. It was pointed out that in fact the Director
General, Assam Rifles, who is one of the petitioners in the present appeal, had himself
recommended to the Ministry of Home Affairs that the anomaly in the pay scales of the Radio
Mechanics should be rectified. Learned counsel submits that it is unfair on the part of the
Director General to take a somersault and oppose the direction given by the High Court, which
is in consonance with his recommendation. Learned counsel, however, stated that the
respondent was not pressing for parity with the personnel of the Delhi Police. (WORDS 486)
 Part 5 EXERCISE NO. 72

Learned senior counsel for the appellants submitted that retirement by way of
superannuation in respect of government employees is permissible only on the basis of age
and not on the basis of length of service. The contention is that retirement by way of
superannuation in respect of government employees relates to discharge of an employee on
account of attaining a particular age fixed for such retirement, which is uniformly applicable to
all employees without discrimination. He submitted that where there is minimum and
maximum age of entry into any service, the alternative method of retirement by way of length
of service would inevitably result in different age of superannuation of employees holding the
same post depending upon their age of entry to the service and that would result in manifest
violation of Article 14 and Article 16 of the Constitution. It would also be inconsistent with the
valuable right of a permanent government employee to continue service till the age of
superannuation subject to rules of compulsory retirement in public interest and abolition of
posts. We are not impressed by the argument of the appellants that impugned provision is
arbitrary not only from the point of view of the employees as a whole but also from the point of
view of public interest since the public at large shall be deprived of the benefit of the mature
experience of the senior government employees. If the State Government felt that it was not
fair to deny the large number of educated youth in the State an opportunity of public
employment because of existing provisions of retirement from public employment and
accordingly decided to have the impugned provision enacted through the legislative process,
we are afraid in the guise of mature experience and such provision may not be held against the
public interest.
Insofar as factual aspect is concerned, we have no justifiable reason to disbelieve the
statement submitted by the State Government indicating that 3098 employees retired on
completion of 35 years of service. There is variation because appellants have given the figures
of the employees who retired upto March 31, 2010. Be that as it may, it appears that most of
the employees retired at the age of 54 and above and the persons retiring at the age of 53 are
only 5.84%. The persons retiring at the age of 52 and below are those who joined the
Government service at the age of 9 to 17 years. Merely because some employees had to retire
from public employment on completion of 35 years of service although they have not
completed 55 years of age does not lead to any conclusion that the impugned enactment is
arbitrary, irrational, unfair and unconstitutional. The fact that provision such as the impugned
provision that allows the retirement from public employment on completion of 35 years'
service is not to be found in other States is of no relevance. In any case there is nothing wrong
if the legislation provides for retirement of the government employees based on maximum
length of service. (WORDS 507)
 Part 5 EXERCISE NO. 73

Challenge in this appeal is from an order passed by a learned single Judge of the
Madhya Pradesh High Court in contempt proceedings. The respondent had filed a writ petition,
which was disposed of with certain directions. Alleging that when the directions were not
complied with, a petition was filed for initiation of contempt proceedings. Response was filed by
the appellants taking a positive stand that the directions have been complied with and
whatever was to be legally done has been so done. After taking note of the stand taken by the
present appellants who were respondents in the contempt proceeding, learned single Judge
dropped the contempt proceeding by accepting the explanation of the respondents as
reasonable. It was specifically noted that from the steps taken by the alleged contemnors, it
cannot be said that the action of the respondents in the contempt proceedings was, in any
manner, contemptuous or disrespectful.
While dealing with an application for contempt, the court is really concerned with the
question whether the earlier decision, which has received its finality had been complied with or
not. It would not be permissible for a court to examine the correctness of the earlier decision,
which had not been assailed and to take a view different from what was taken in the earlier
decision. The court exercising contempt jurisdiction is primarily concerned with the question of
contumacious conduct of the party who is alleged to have committed default in complying with
the directions in the judgment or order. If there was no ambiguity in the order, it is for the
party concerned to approach the higher court if according to him the same is not legally
tenable. Such a question has necessarily to be agitated before the higher court. The court
exercising contempt jurisdiction cannot take upon itself power to decide the original
proceedings in a manner not dealt with by the court passing the judgment or order. We find
that the same has no application to the facts of the present case. In that case the question
arose about the impossibility to obey the order. If that was the stand of the appellants, the
least it could have done was to assail correctness of the judgment before the higher court.
If any party concerned is aggrieved by the order, which in its opinion is wrong or
against the rules or its implementation is neither practicable nor feasible, it should always
either approach the court that passed the order or invoke jurisdiction of the appellate court.
Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong,
the order has to be obeyed. Flouting an order of the court would render the party liable for
contempt. While dealing with an application for contempt the court cannot traverse beyond the
order. In other words, it cannot say what should not have been done or what should have
been done. It cannot test correctness or otherwise of the order or give additional direction or
delete any direction. (WORDS 501)
 Part 5 EXERCISE NO. 74

The Commercial Tax Officer made an assessment including the transportation charges
and the agent's commission paid in the taxable turnover under Section 6-A of the Act after
issuing a show cause notice. The amount of tax determined to be paid was Rs. 2,42,500/-. The
Commercial Tax Officer held that the respondent is liable to pay tax on the total amount of
purchase price as per the definition of total turnover under Section 2(s) of the Act, which also
included the transportation charges and the agent's commission for procuring the raw
materials. The respondent filed an appeal before the Appellate Deputy Commissioner against
the order of the Commercial Tax Officer. The appellate Authority held that the respondent did
not transport the raw materials after purchase but the agent was made responsible for
purchase of raw materials and transportation of the same to the respondent's factory for a
total consideration, which included the cost of raw materials, transportation charges and
agent's commission.
The respondent filed a second appeal before the Sales Tax Appellate Tribunal, which
allowed the appeal directing the Commercial Tax Officer to delete the additions made towards
transportation charges and agent's commission from the gross and the net turnover. The
Tribunal held that the purchases made by the agent from unregistered dealers are the
purchases made by the respondent and any expenses incurred subsequent to the purchase of
raw materials would not be included in sale consideration flowing from the agent to the
respondent. Aggrieved by the order of the Tribunal, the appellant filed a Tax Revision case in
the High Court of Andhra Pradesh. The High Court, without going into the merits of the case,
dismissed the revision on the summary ground that the transportation charges and agent's
commission were incurred subsequent to the purchase of the raw materials and the said
charges, therefore, do not represent the sale consideration, which had passed from the buyer
to the seller is a finding of fact. Aggrieved by the order passed in the revision by the High
Court of Andhra Pradesh, the above appeal by way of special leave petition was filed by the
State of Andhra Pradesh.
It was argued by the learned counsel appearing for the appellant that the High Court
is in error in not seeing that the agent appointed by the respondent is engaged in the business
of purchase of raw materials from the unregistered dealers and supplying the same in the
factory on contract rates, which included the cost of raw materials, transport charges and the
agent's commission. It was further submitted that the High Court is not correct in holding that
the transportation charges and the agent's commission are incurred by the respondent
subsequent to the purchase of raw materials and such charges do not represent the sale
consideration. As regards the transport subsidy, the contention of the appellant was that the
transport charges were in fact paid by the appellant to third party lorry owners for transporting
sugarcane. (WORDS 494)
 Part 5 EXERCISE NO. 75

It is trite that the courts and tribunals having plenary jurisdiction have discretionary
power to grant an appropriate relief to the parties. The aim and object of the Industrial
Disputes Act may be to impart social justice to the workman but the same by itself would not
mean that irrespective of his conduct a workman would automatically be entitled to relief. The
procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial
proceedings. A person in certain situation may even be held to be bound by the doctrine of sub
silentio. The respondent herein did not raise any industrial dispute questioning the termination
of her services within a reasonable time. She even accepted an alternative employment and
has been continuing therein from 10.8.1988. In her replication filed before the Presiding
Officer of the Labour Court while traversing the plea raised by the appellant herein, it was
averred that she is gainfully employed with effect from 10.8.1988 and her services be
regularized.
It is true that the respondent had filed a writ petition within a period of three years but
indisputably the same was filed only after the other workmen obtained same relief from the
Labour Court in a reference made in that behalf by the State. Evidently in the writ petition, she
was not in a position to establish her legal right so as to obtain a writ of mandamus directing
the appellant herein to reinstate her in service. She was advised to withdraw the writ petition
presumably because she would not have obtained any relief in the said proceeding. Even the
High Court could have dismissed the writ petition on the ground of delay or could have
otherwise refused to exercise its discretionary jurisdiction. The conduct of the appellant in
approaching the Labour Court after more than seven years had, therefore, been considered to
be a relevant factor by the Labour Court for refusing to grant any relief to her. Such a
consideration on the part of the Labour Court cannot be said to be an irrelevant. The Labour
Court in the aforementioned situation cannot be said to have exercised its discretionary
jurisdiction injudiciously, arbitrarily and capriciously warranting interference at the hands of
the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution.
It is also relevant to note that there may or may not now be any regular vacancy with the
Appellant-Bank. We have noticed hereinbefore that in the year 1996, the vacancies had been
filled up and a third party right had been created. It has not been pointed out to us that there
exists a vacancy. Having considered the equities between the parties, we are of the opinion
that it was not a fit case where the High Court should have interfered with the discretionary
jurisdiction exercised by the Labour Court. For the reasons aforementioned, the impugned
judgment cannot be sustained which is set aside accordingly. This appeal is allowed. However,
in the facts and circumstances of the case, there shall be no order as to costs. (WORDS 510)
 Part 5 EXERCISE No. 76

This appeal has been filed under Section 28 of the Hindu Marriage Act,1955 against the
judgment and decree dated 9.1.1998 passed by the Additional District Judge No.1, Bharatpur
in civil misc. case No.14 of 1996 dismissing the application submitted by the appellant under
Section 13 for the Dissolution of the Marriage.
The brief facts giving rise to this appeal are that the marriage between the appellant-
husband and the respondent-wife took place on 3.12.1992 and it is urged in the petition that
on or before 21.2.1993 the respondent wife tried to pour kerosene oil on herself to immolate
but was prevented by the husband-appellant with great difficulty. On the next day i.e. on
22.2.1993 on information having been sent by the appellant to his in-laws, the brother of the
respondent-wife and her brother-in-law came and took her to her parental home. It is alleged
that the respondent used to behave in an abnormal manner and it is further alleged that even
prior to her marriage she suffered from mental disorder. In the petition, it was alleged that the
appellant made an enquiry and came to know that even prior to the marriage the respondent-
wife was being treated for the aforesaid ailment. It was also stated in the petition that the
respondent was treated by Dr. Madhuvan Singh in his Hospital for the aforesaid purpose. It is
submitted that on 17.2.1994 the respondent was taken to the Hospital and looking to her
ailments, it was impossible for the appellant-husband to continue the marriage and hence on
the grounds mentioned in Clause (iii) of Section 13 (1) that the respondent being incurably
suffering from mental disorder of unsound mind the decree for dissolution of marriage was
sought by the husband appellant.
The respondent filed a reply and denied the allegations. In response, the respondent
filed her reply and alleged that the husband appellant used to treat her with cruelty because of
the fact that sufficient amount of Dowry was snot given in the marriage. It was alleged in the
reply that the husband treated her very badly and even poured kerosene on her body to burn
her. She denied that she was mentally unsound or was treated for this ailment. She also
submitted that as a result of the marriage she gave birth to a girl child. It is further alleged
that she was subjected to ill-treatment on account of having given birth to a girl child and was
driven out of her home. It was submitted in the reply that the husband and her-in-laws told
her that she could come back only if she came with Rs.20,000/- in cash. She denied that had
left her matrimonial home without reasonable cause. In the reply she stated that she is willing
to stay with her husband in case her in-laws gave her guarantee of security for her life and
that of her child. It was thus prayed that the application be dismissed. (WORDS 488)
 Part 5 EXERCISE No. 77

Being aggrieved by this Judgment and order, the present appeal has been filed. The
learned counsel appearing for the appellant submitted that the premises belonged to Union of
India and were being managed by the appellant administratively under the Public Premises Act.
Section 4 of that Act permitted a notice of seven days, which had been given in the instant
case. Even the lease document also provided for a termination of the lease by a notice of
seven days, and in any case, the action was being taken after the expiry of the lease period.
The lease had not been extended. That being so, the respondent was in unauthorized
occupation within the definition of `unauthorized occupation' under Section 2 (g) of the Public
Premises Act. He relied upon a number of decisions to contend that the position of a lessee
holding on under an unregistered deed, which is compulsorily registrable and a mere demand
for possession is sufficient to determine the lease and no notice under Section 106 of the
Transfer of Property Act was necessary.

Mr. Ravindra Singh, learned counsel for the respondent however lastly submitted that
the respondent was owner of the premises and secondly, the Public Premises Act did not apply
to these premises also for the reason that the Cantonment Boards have come to be covered
under the Public Premises Act only by Amendment Act of 1993 which came into force on
7.1.1994. That is how clause VI governing any Cantonment Board constituted under the
Cantonment Act, 1924 has come to be included in the definition of "public premises" under
section 2 (e) of the Public Premises Act. He therefore, submitted that at the time when the
proceedings were initiated and the order was passed under the Public Premises Act, the Estate
Officer did not have jurisdiction to proceed under this Act and, therefore, for this reason alone
the eviction proceedings will have to be held as bad in law for want of jurisdiction and the
appeal will have to be dismissed. He submitted that this was an issue with respect to having
jurisdiction to deal with the subject-matter and the submission can be raised at any stage of
proceedings.

We have considered the submission of both the counsel. As far the first submission of
Mr. Singh that the premises belong to the respondent is concerned, the same has never been
raised any time before. On the record of the present civil appeal, we have the objection filed by
the respondent before the Estate Officer and a copy of the writ petition filed by the respondent.
Nowhere have they claimed that they own the premises. On the contrary, in paragraph 3 of
their objections before the Estate Officer, they have stated that the Executive Officer of the
Cantonment Board is the Secretary and the Custodian of the property. In paragraph 4 of the
writ petition, they have clearly stated that the hospital building initially belonged to the East
India Company and later on had belonged to the Government of India. (WORDS 504)
 Part 5 EXERCISE No. 78

In order to perpetuate himself in the society and in the institution being fully aware of
the fact that he was going to attain the age of superannuation and his Secretaryship would
also automatically come to an end, an attempt was made by him to get his age extended and
on the strength of the same to continue as Secretary of the society. After attaining the age of
superannuation, Principal of the institution is not at all entitled to continue as Secretary.
Specific mention has been made that petitioner no. 2 was Secretary by virtue of being
Principal, who happens to be an ex-officio member and once he attained the age of
superannuation as Principal, then he could be elected as Secretary only when he was valid
member of the society, but at no point of time he had ever been enrolled as valid member of
the general body of the society. This specific statement of fact has not been disputed in the
rejoinder affidavit. Once this is the factual situational in respect of status of petitioner no. 2 as
Principal of the institution has already attained the age of superannuation and this fact has not
been substantiated before this Court as to in what way and manner he had been enrolled as
member of the general body of the society, then legitimately petitioner no. 2 has no grievance.
The Bishop who had accepted the request to act as Chairman along with petitioner no. 2 has
already washed his sin by resigning and submitting letter on 29.07.2010 regretting therein his
deeds. These averments have been mentioned in paragraph 4 of the counter affidavit and said
specific averments have not at all been replied.

It was also highlighted and demonstrated that there was no quorum in the meeting
held on 28.05.2007 in which amendments had been carried out. It is seen that four Officers
and five members of the Society were present in the meeting. One ex-officio member and four
members were absent and there were total 14 members of the Society. In the Special General
Meeting held on 28.05.2007 only nine members were present. Therefore, according to Rule 38
of the Rules, at least 10 members were required to be present at the Special General Meeting
held on 28.05.2007. In the absence of quorum laid down by Rule 38, neither the amendments
could be passed in the Special General Meeting of the Society nor could the amendments made
be registered by the Assistant Registrar. The above details, as noted in the order of the learned
Single Judge clearly show that there was no quorum in the meeting held on 28.05.2007 in
which the amendments had been carried out. After saying so, the learned Single Judge
correctly concluded that in such a situation and in this background, any interference with the
order of the Assistant Registrar would amount to perpetuating the illegality and subscribing to
apparent illegality committed. (WORDS 487)
 Part 5 EXERCISE No. 79

The first submission of Mr. Ujjal Singh is that the appellant has been falsely implicated.
We are unable to accept this submission. Merely because the prosecution has not examined
any independent witness, would not necessarily lead to the conclusion that the appellant has
been falsely implicated. It was clearly a case where the police personnel had noticed the odd
behaviour of the appellant when he was walking towards them on a path which led to village
Mirzapur. It was the display of hesitation by the appellant on sighting the police party that
Satpal Singh, PW-5 became suspicious. On seeing the police personnel, the appellant tried to
run away from the scene. It was not a case where the prosecution has claimed that the
appellant was apprehended on the basis of any earlier information having been given by any
secret informer. It was also not a case of trap. In such circumstances, it would not be possible
to hold that the appellant has been falsely implicated. The prosecution has offered a plausible
explanation with regard to non-joining of the independent witnesses. It was clearly stated by
PW-5 that the path on which the appellant was apprehended was not frequently used by the
public. In fact, efforts were made to bring a member of Panchayat or Sarpanch of the village.
However, the Head Constable Baldev Singh who had been sent, reported that none of the
villagers were prepared to join as independent witnesses. This reluctance on the part of the
villagers is neither strange nor unbelievable. Generally, people belonging to the same village
would not unnecessarily want to create bad relations with any other villager.

We also do not find any substance in the submission of Mr. Ujjal Singh that both the
courts have ignored the plea of the appellant under Section 313 of the Cr.P.C. without any
basis. The evidence of DW-1, upon which the appellant placed heavy reliance, would not be of
much assistance to the appellant. It is noteworthy that even according to the appellant the
police had dug up his house and the courtyard on 10 th September, 1994. According to the
appellant, nothing incriminating was found. This was sought to be supported by the evidence
given by DW-1. Both the courts below, in our opinion, have correctly concluded that such
evidence cannot be believed as the witness DW-1 seems to have appeared for the first time as
a witness. Prior to the appearance in the Court, DW-1 did not make any complaint in writing
either to the police authorities or to the civil administration. Being the Ex- Sarpanch of the
village, he can be expected to act with responsibility. There is no material to show that he
made any efforts to complain about the high handed behaviour of the police. In our opinion,
both the courts below have rightly discarded the evidence of DW-1. The next submission made
by Mr. Ujjal Singh is that there has been non-compliance of Section 50 of the NDPS Act.
(WORDS 506)
 Part 5 EXERCISE No. 80

The respondent no. 1 is a Company registered under the Indian Companies Act, 1956.
Earlier it was known as the Economic Development Corporation of Goa. It is an investment
company in which the State of Goa holds majority shares. The main objects of the respondent
no. 1 as per its own Memorandum of Association, are to provide financial assistance to the
industrial enterprises and enterprises carrying on other economic activities whether for
starting, running, expanding, modernizing etc. and to aid, assist and initiate the economic
development of the State in various spheres. On the other hand, the respondent no. 3 is a
Private Limited Company and is engaged inter alia in the business of development of hotel and
tourism. During the years 1994 to 1999, the respondent no. 3 proposed to develop and to start
hotel project in the property and for the purpose of implementing the said hotel project, the
respondent no. 1 granted a term loan of Rs. 7 crores to respondent no. 3 against mortgage of
aforesaid hotel property vide agreement dated February 8, 1999. The respondent no. 1 has
also granted a loan of Rs. 5 crores to the respondent no. 3 against pari pasu charge of the
hotel property.

When the respondent no. 3 was not able to repay the loan amount, the respondent no.
1 initiated coercive action for recovery of the loan amount and attached the property of
respondent no. 3 under Section 29 of State Finance Corporation Act, 1951. On the request of
the respondent no. 3 that it would be able to sustain the adverse market conditions and
convert the project into profitable venture provided some time was granted, the property
attached was released and, therefore, the respondent no. 1 handed over the possession of the
property to the respondent no. 3 on certain conditions stipulated in agreement dated August
19, 2003, but subsequently in the month of October, 2003, the respondent no. 1 again
attached the property. The respondent no. 3 challenged the action of the respondent no. 1 in
attaching the property by way of filing writ petition before the High Court. The said petition
was, however, withdrawn subsequently. The offer made by the respondent no. 3 for financial
restructuring and one time settlement by payment of Rs. 12 crores was rejected by the
respondent no. 1. Pursuant thereto, the respondent no. 1 made several attempts between
2004 to 2005 to sell the attached property, which was mortgaged by way of public auction but
in none of the public auctions, it received offers equivalent to market value of the property.
Thereafter, by private negotiation the respondent no. 1 had accepted the proposal of appellant
to sell the property in question for a sum of Rs.13 crores. The respondent no. 3 thereafter
received a letter from the respondent no. 1 whereby the respondent no. 1 notified that it had
received an offer of Rs.13 crores from the appellant and was inclined to accept the said offer.

(WORDS 496)
 Part 5 EXERCISE No. 81

From the conspectus of views taken in the decisions of different High Courts noted
above, it is clear that the liability of a common carrier under the Carriers Act is that of an
insurer. This position is made further clear by the provision in Section 9, in which it is
specifically laid down that in a case of claim of damage or deterioration of goods entrusted to a
carrier, it is not necessary for the plaintiff to establish negligence. Even assuming that the
general principle in the case of tortious liability is that the party who alleges negligence against
the other must prove the same, the said principle has no application to a case covered under
the Carriers Act. This is also the position notwithstanding a special contract between the
parties. These principles have held the field over a considerable length of time and have been
crystallized into accepted position of law. No good reason has been brought to our notice to
persuade us to make a departure from the accepted position. Therefore, we reiterate the
position of law noticed above. The consequential position that follows is that the contention of
Shri Ashok Desai, learned senior counsel that the respondents herein having failed to establish
negligence on the part of the appellant, their claim for damages should be rejected, cannot be
accepted.

The question that remains to be considered is whether the principles of law discussed
in the preceding paragraph is applicable in a proceeding before the consumer disputes
redressal agency particularly the National Commission. In this regard, the contention of Shri
Desai is that the use of the term suit in Section 9 of the Carriers Act shows that the provision
is applicable only to the cases filed in civil court and does not extend to proceedings before the
National Commission, which is to decide complaints by consumers following a summary
procedure. Elucidating the point, Shri Desai submitted that in a proceeding before the National
Commission the general principle that the burden to prove negligence lies on the party alleging
negligence should be applicable, though the position may be different in a suit filed in a civil
court. The term suit has not been defined in the Carriers Act nor is it provided in the said Act
that the term suit will have the same meaning as in the Civil Procedure Code. From the above,
it is clear that the term suit is a generic term taking within its sweep all proceedings initiated
by a party for realization of a right vested in him under law. The meaning of the term suit also
depends on the context of its user which, in turn, amongst other things, depends on the Act or
the Rule in which it is used. No doubt the proceeding before a National Commission is
ordinarily a summary proceeding and in an appropriate case where the Commission feels that
the issues raised by the parties are too contentious to be decided in a summary proceeding it
may refer the parties to a civil court. (WORDS 507)
 Part 5 EXERCISE No. 82

Reverting back to the factual situation of the case at hand, admittedly the appellant is
in possession of the buildings in question since 1958. They have been permitted to raise huge
constructions and the nature of construction is of wide range. An administration block along
with tanks for storing petroleum had been constructed. A boundary wall around installations
and administrative block had also been constructed. Admittedly, the appellant is in exclusive
possession over the lands in question along with construction thereon without any let or
hindrance from the Administration. Further, the appellant had been continuously carrying on
their business without any interference from any quarter whatsoever since 1962. As in the
instant case, exclusive possession has been granted, there is a strong presumption in favour of
tenancy.

That being the case, it is for the appellant to show that despite the right to possess the
demised premises exclusive, a right or interest in the property has not been created. The
burden therefore would be on the appellant. The aforesaid burden is not discharged in the
present case rather for the purposes resisting its eviction from the suit land in the proceeding
initiated under the Public Premises Unauthorized Occupants Eviction Act, the appellant has
taken the stand pleading non-applicability of the Indian Easement Act and has themselves
termed the arrangement as a tenancy. The said factor is also a vital factor as on the own
showing of the appellant, the arrangement was nothing but a lease. The appellant therefore
cannot take up a plea by which they approbate and reprobate at the same time. We may also
notice the undisputed fact that in the present case the parties have agreed that for the
purpose of determination of the agreement three calendar months' notice had to be given.
Undoubtedly, such clause in the document in question has a significant role to play in the
matter of construction of document. Clearly, if the parties to the agreement intended that by
reason of such agreement merely a license would be created such a term could not have been
inserted.

It is well settled legal position that a license can be revoked at any time at the pleasure
of the licensor. Even otherwise, unless the parties to the agreement had an intention to enter
into a deed of lease, the Administration would not have agreed to demise the premises on
payment of rent in lieu of grant of exclusive possession of the demised land and further
stipulated service of three months' notice calling upon either party to terminate the agreement.
In view of the same, the argument advanced by the learned counsel of the appellant that a
stipulation having been made in the agreement itself that by reasons thereof the appellant
shall not be a tenant and thus the deed must be construed to be a license cannot be accepted.
In our considered view, such a clause may at best be one of the factors for construction of the
document in question but the same by itself certainly be a decisive factor. (WORDS 507)
 Part 5 EXERCISE No. 83

In view of the legal principles laid down by this Court in the above judgment, the
reference of the industrial dispute made in the case on hand by the State Government to the
Labour Court to adjudicate the existing industrial dispute between the parties was made within
a reasonable time, considering the circumstances in which the workman was placed, firstly as
there was a criminal case pending against him and secondly, the respondent had assured the
workman that he would be reinstated after his acquittal from the criminal case. Moreover, it is
reasonable to adjudicate the industrial dispute in spite of the delay in raising and referring the
matter, since there is no mention of any loss or unavailability of material evidence due to the
delay. Thus, we do not consider the delay in raising the industrial dispute and referring the
same to the Labour Court for adjudication as gravely erroneous and it does not debar the
workman from claiming rightful relief from his employer.

Hence, we are of the opinion, having regard to the fact and circumstances of the case
that there is no delay or laches on the part of the workman from the date of his acquittal in the
criminal case. Thereafter, upon failure of the Respondent in adhering to the assurance given to
the workman that he would be reinstated after his acquittal from the criminal case, the
workman approached the conciliation officer and the State Government to make a reference to
the Labour Court for adjudication of the dispute with regard to the order of dismissal passed by
the Respondent. Keeping in mind the date of acquittal of the Appellant and the date on which
he approached the conciliation officer by raising the dispute, since the Respondent had not
adhered to its assurance, the State Government had rightly referred the dispute for its
adjudication. Therefore it cannot be said that there was a delay on the part of the Appellant in
raising the dispute and getting it referred to the Labour Court by the State Government.

Further, the Labour Court on an erroneous assumption of law framed the additional
issue regarding the limitation in raising the dispute and its reference by the State Government
to the Labour Court. Thus, the Labour Court has ignored the legal principles laid down by this
Court in the cases referred to supra. The award passed by the Labour Court was accepted
erroneously by both the learned single Judge and the Division Bench of the High Court by
dismissing the Civil Writ Petition & the Letters Patent Appeal without examining the case in its
proper perspective, keeping in view the power of the State Government Under Section 10 (c)
and the object and intendment of the Act. Not adjudicating the existing industrial dispute on
merits between the parties referred to it may lead to disruption of industrial peace and
harmony, which is the foremost important aspect in Industrial Jurisprudence as the same
would affect the public interest at large. (WORDS 499)
 Part 5 EXERCISE No. 84

It was next contended on behalf of the petitioner that the provisions of Section 10(5)
of the Act which empowers the Passport authority or the Government to decline furnishing the
holder of the passport a brief statement of the reasons for making an order if the authority is
of the opinion that it will not be in the interest of sovereignty and integrity of India and
security of India or in the interests of the general public is unsustainable in law. It was
submitted that along with the right to refuse to furnish a copy of the order made by the
Government, as a right of appeal is denied against an order made by the Central Govt., the
provisions should be regarded as total denial or procedure and arbitrary. In view of the
construction which is placed on Section 10(3) that the holder of the passport is entitled to be
heard before the passport authority deems it necessary to impound a passport, it cannot be
said that there is total denial of procedure. The authority under Section 10(5) is bound to
record in writing a brief statement of the reasons for making an order and furnish to the holder
of the passport or travel document on demand a copy of the same, unless in any case, the
passport authority is of the opinion that it will not be in the interests of the sovereignty and
integrity of India.
The grounds on which the authority may refuse to furnish the reasons are the same as
provided in Section 10(3) for impounding a passport but the two powers are exercisable in
totally different contexts. Under Section 10(3), the question that has to be considered is
whether the passport has to be impounded in the interests of sovereignty and integrity of India
etc. or in the interests of general public. In passing an order under Section 10(5) it has to be
considered whether in the interests of the sovereignty and integrity of India etc. or in the
interests of general public, furnishing of a copy of the reasons for the order, should be
declined. Though the same grounds are mentioned for impounding a passport as well as for
refusing to furnish the reasons for making an order, it would not mean that when an order
under Section 10(3)is passed it would automatically apply to Section 10(5) and for the same
reason the authority can decline to furnish the reasons for the order. Section 10(5) says that
the authority shall furnish to the holder of the passport on demand a copy unless in any case
the authority is of opinion that it will not be in the interests of sovereignty and integrity of
India etc. The expression "unless in any case" would indicate that it is not in every case that
the authority can decline to furnish reasons for the order. There may be some cases, and I feel
that it can be only in very rare cases, that a copy containing the reasons for making such order
can be refused. (WORDS 507)
 Part 5 EXERCISE No. 85

It is necessary to notice at this stage that in an original suit of this nature, it was not
appropriate for the Additional District Judge to pass an order directing the parties to maintain
status quo without indicating what was the status quo. If he was satisfied that the appellant
before him had made out a prima facie case for ad-interim ex-parte injunction, it was for him
to have passed such an order of injunction. But simply directing the parties to maintain status
quo without indicating what was the status quo, is not an order that should be passed at the
initial stage of a litigation, especially when one court had found no reason to grant an ex-parte
order of injunction and the appellate court was dealing with only the limited question whether
ad-interim order of injunction should or should not have been granted by the trial court, since
the appeal was only against the refusal of ad-interim ex-parte order of injunction and the main
application for injunction pending suit, was still pending before the trial court itself. Therefore,
we are prima facie of the view that the Additional District Judge ought not to have passed an
equivocal order like the one passed in the circumstances of the case. But of course, that aspect
has relevance only to the extent that before ordering an interim mandatory injunction or
refusing it, the court has first to consider whether the plaintiff has proved that he was in
possession on the date of suit and on the date of the order and he had been dispossessed.
Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered,
an order for interim mandatory injunction could not have been passed.
Admittedly, the defendants are the owners of the building. The plaintiff was setting up
a case that the plaint schedule part of the building had been granted to him on lease on
17.4.1998 and that he had obtained possession thereof on the basis of such a lease
transaction. The lease, thus set up by the plaintiff has been denied by the defendants who had
pleaded that the plaintiff had been entrusted with some renovation work for which he was
being paid and the alleged document relied on by him was a concocted one. The grant of
mandatory injunction would necessarily depend upon the plaintiff establishing before the court
that on 19.6.98 when the court directed the parties to maintain status quo, he was in
possession as a tenant of the plaint schedule property. Therefore, the first question that the
District Court had to consider pursuant to the order of remand by the High Court was whether
the plaintiff had prima facie established that the building was let out to him as claimed. It is
difficult to imagine that such a building of this nature would have been let out in such an
informal manner and the transaction not being evidenced even by a rent deed executed by the
lessor. (WORDS 500)
 Part 5 EXERCISE No. 86

On the other hand, learned A.G.A. has supported the judgment of conviction passed by
the trial Court and submitted that at the time of occurrence the appellants were apprehended
at the spot by the police party, who had no axe to grind against them and therefore, the
conviction is unassailable and has to be affirmed. He further submitted that all the accused
persons belong to a gang of dacoits and they have assembled at the spot with the intention to
commit dacoity and it is a case of preparation to commit dacoity and therefore, no clemency
should be shown to the appellants and the conviction and sentence ought to be confirmed.

Having heard learned counsel for the parties and after going through evidence
available on the record, we would first like to mention that it is trite law for the prosecution to
establish its case beyond all shadows of reasonable doubts. On the other hand, it is also settled
legal proposition that only on the basis of the prosecution witnesses being a police personnel
can not constitute a reason to discard or discredit their testimonies. In the light of this cardinal
principle, we find that PW-1, PW-2 and PW-3 are all police witnesses of the prosecution
whereas the trial court was informed all above referred glaring illegalities and inconsistencies.
The legal propositions required that it should have been examined with utmost care and
cautious rather than accepting pedantic ignoring the criticism without any valid reasons. Now
turning to evidence of the informant as well as the supporting prosecution witnesses, we find
that it does not inspire confidence. During incident not even a single shot was fired by the
dacoits even when they were being chased. This itself is a very unnatural conduct which does
not appeal to reason at all. In respect of the recovery of country made pistol and other fire arm
weapon from the possession of accused, the evidence in that respect is also very incredible and
does not inspire any confidence. The Investigating Officer did not examine the said weapon
either himself or from an expert to verify whether they are in working condition or not. On over
all analysis of the entire facts and circumstances of the case, it appears that in order to work
out the previous dacoity case, these appellants were apprehended by the police for the best
reasons known to them and were implicated in the present incident without there being any
credible evidence against them. This court from perusal of the recovery memo finds that
incriminating material and illegal weapons does not bear the signature of accused on it.
Although signature of an accused on the recovery memo is not the mandatory requirement of
the law. It is only the signature of the witnesses, which are necessarily required. But if the
defence version is that the appellants-accused were arrested and no such incriminating article
or illegal weapons had been recovered from them then it has got relevance in order to ensure
the presence of the accused persons along with the witnesses on the spot. (WORDS 512)
 Part 5 EXERCISE No. 87

The learned Standing Counsel on behalf of State has opposed the petition and has
urged that the possession memo is final. The petitioners did not choose to challenge the
notifications and after the original tenure holders had failed in a challenge raised to the
notifications and three writ petitions had been dismissed that the present writ petition came to
be filed. It is also submitted that the acquisition proceedings in respect of village Sultanpur
have also been upheld in the case of Gajraj Singh (Supra) and in the aforesaid circumstances
the said judgment would be binding in the present case as well. The challenge raised is by
fence sitters in the circumstances indicated above which should not be entertained so as to
defeat the public purpose of acquisition that has already been given effect to. On the strength
of the records it has been urged that the possession is evident by a memo and no evidence to
the contrary having been shown the factum of possession having been taken on 25.01.2010
can not be disputed. This is also evident from the award dated 07.09.2011 where this fact is
recorded and the date of possession is mentioned as 25.01.2010. The compensation has been
awarded to all tenure holders and if there is any dispute with regard to compensation it is for
the petitioners to approach the appropriate authority in accordance with law but so far as
acquisition is concerned the same is complete and none of the grounds raised are available to
the petitioners. There is no occasion to treat the proceedings to have lapsed as urged and the
petitioners have been unable to identify or locate the area and the boundaries of their plots
about which they are staking their claims which is limited only to the extent of their sale deeds
and not of the entire plot no.625. It is submitted that major part of the plot having been
acquired and having been contested by the recorded tenure holders who have lost the battle,
there is no occasion to consider the relief prayed for for a very small chunk of land of the
petitioners. Thus challenged to the acquisition proceedings must fail and the writ petition
deserves to be dismissed.

Sri Ramendra Pratap Singh, learned counsel for the respondent no.3 Development
Authority has urged that the acquisition proceedings have become final and in view of the
judgment in the case of New Okhla Industrial Development Authority Vs. Harkishan (Dead)
through Legal Representatives and others, 2017 (3) SCC 588, the provision of Section 11-A of
the Act are not available to be invoked for treating the proceedings to have lapsed. He has
further invited the attention of the Court paragraph no. 66 of the judgment to substantiate his
submissions and he has supported the stand taken by the State Government. He has also
urged that the records produced by the State and by the Authorities establish the actual
possession having been taken and the petitioners have failed to establish and identify their
land there is no occasion to entertain this writ petition. (WORDS 512)
 Part 5 EXERCISE No. 88

Learned counsel for the appellant has submitted that while awarding the compensation
Tribunal committed an illegality in making only 1/4th deducation towards personal and living
expenses of the deceased and in not making deduction the amount of family pension. Learned
counsel further submitted that from the FIR, it is established that accident in question was a
result of head on collision of bus and motor-cycle. Hence, in any case, the liability for making
payment of compensation ought to have been opportioned but the Tribunal committed an
illegality in not considering the same. Learned counsel further submitted that compensation
awarded by the Tribunal is excessive and exorbitant, the award therefore is liable to be
modified.

Per contra, learned counsel for the respondents-claimants has submitted that it is
proved from the oral and documentary evidence adduced by the respondent-claimant that
accident in question had occurred on account of rash and negligent driving of the driver of the
said offending bus. Deceased was not responsible for the accident in question. Learned counsel
further submitted that impugned judgment and award passed by the Tribunal is just and
reasonable and therefore does not require any interference by this Court, as such, this appeal
is liable to be dismissed. Learned counsel for the claimants-respondents has further submitted
that the matter in respect of permission to file the appeal under Section 170 of the Motor
Vehicles Act has been referred to the Larger Bench. He further submits that once the reference
has been made to the Larger Bench, the question of obtaining the permission under Section
170 of the Act is mandatory upon the appellant-Insurance Company. If permission has not
been granted, then the objection can be raised only on limited ground in regard to quantum.

We have examined the argument of learned counsel for the claimants-respondents and
we find that points 3 to 5 have been referred to the Larger Bench, but they do not deal with
the issue where the insurance Company has been impleaded as a party and has contested the
claim before the Tribunal. If the Insurance Company has been impleaded as a party and had
contested the claim before the Tribunal, then the issue has been referred to the Larger Bench
is not attracted. The present case is covered under Para-8 of the aforesaid judgment, wherein
the contingency has been dealt with and, therefore, the argument of learned counsel for the
claimants-respondents that the matter has been referred to the Larger Bench in regard to
obtaining the permission under Section 170of the Act does not hold good and the parties are to
be governed by the finding recorded in para 8 of the judgment, which has become final and
the same has been recorded in respect of point 1 and draws distinction as compared to points
3 to 5 where the Insurance Company has not put in appearance and had not contested the
claim. It is important to mention here that registration of FIR and filing of the charge-sheet
against the driver of the said offending bus are not in dispute. (WORDS 509)
 Part 5 EXERCISE No. 89

It is not disputed by the respondents or the learned counsel in the course of their oral
submissions that the date of retirement was in fact fixed by the Chairman of the Jal Nigam as
evident from his Office Order dated 23 December 2011. The fact that the Chief Engineer is an
authority subordinate to the Chairman, Jal Nigam also possibly cannot be disputed. More
fundamentally, the Court notes that the Office Order issued by the Chairman of the Jal Nigam
was itself based upon a decision taken by the Board of Directors of the Jal Nigam in its 127th
meeting held on 23 December 2011. The Circular dated 23 May 2014 is not based upon any
subsequent decision of the Board of the Jal Nigam. The Circular in question has also not been
issued upon instructions received from any superior authority or in supersession of any other
earlier Circular that may be said to govern the subject of age of retirement. The Circular dated
25 May 2014 does not supersede the Office Order dated 23 December 2011. It is therefore
evident that the Office Order dated 23 December 2011 continues to hold the field and it
therefore must necessarily be held that the age of retirement in the Jal Nigam continues to be
60 years.

The issue which therefore falls for determination is whether the Chief Engineer of the
Jal Nigam could have issued instructions which operated contrary to the Office Order issued by
the Chairman which itself was based upon a decision of the Board of the Directors of the Jal
Nigam. The answer to the above must necessarily be in the negative. Learned Counsel for the
respondents do not dispute and in fact submit that the Jal Nigam is a body corporate whose
affairs are administered by a Board of Directors whose decisions on matters of policy are
clearly binding on all subordinate authorities of the Jal Nigam. They did not rely upon or place
before the Court any material evidencing a decision taken by the Board either amending the
age of retirement or superseding the Office Order dated 23 December 2011. It was also not
disputed by the learned counsels that the said Office Order continued to govern the subject of
retirement. The Circular dated 23 May 2014 clearly operates to interfere with and eclipse the
right of an employee of the Jal Nigam to continue in service till he attains the age of 60 years.
The prescription of effecting "retirement" of an employee upon completion of 42 years is not
shown to have any overriding authority. As long as the Office Order remains in force and the
age of retirement continues to remain fixed at 60 years, no Circular can possibly operate which
has the effect of shortening the period for which an officer or employee can continue in service.
The impugned Circular is not shown to be based upon any subsequent decision of the Board
authorising the creation of this artificial distinction between persons who had rendered 42
years of service. (WORDS 507)
 Part 5 EXERCISE No. 90

In order to make the Rules of 1985 applicable upon the petitioners it would have to be
seen as to whether the other condition contemplated under rule 4 are also fulfilled or not? Rule
4 clearly provides that services of all permanent government servant and all temporary
government servant, other than those appointed on contract and re-employed pensioners, are
likely to continue for more than a year before they are to subscribe to the fund. To clarify it
further Note 2 has been added which provides that temporary government servant including
apprentices and probationers who have been appointed against regular or temporary vacancies
and are likely to continue for more than a year, shall subscribe to the fund from the date of
joining the service. Engagement of petitioners have continued uninterruptedly since their very
initial appointment in 1989. Their engagement was against specific temporary vacancy created
for the purposes and was likely to continue for more than a year. It has in fact continued for
more than decades. The term "likely to continue" is also of importance inasmuch as while
creating the post a stipulation may be made that such creation is for the year, but if the post is
likely to continue, considering the exigencies, then all such vacancies would be covered. In the
instant case, these tubewell operators were engaged to look after the tubewell installed by the
State for its irrigation project and it could not be doubted that such creation of posts were
likely to continue for more than a year.

As a matter of fact after the term "part-time" was made redundant by the orders of
this Court in 1994, and the issue attained finality upto the Apex Court, the State Government
rightly realized that these temporary government servant would be covered under conditions
of eligibility contemplated in rule 4 and passed the government order in 1998, clearly holding
that such tubewell operators would be entitled to all service benefits as are otherwise
admissible to a full-time tubewell operator. This recognition of petitioners' status as a
temporary government servant did not remain only on files but was followed with specific act
on part of the State extending the benefits of the provident fund scheme under the Rules of
1985 as well. Provident fund accounts were opened in respect of petitioners, specific account
numbers were given and deduction from salary for contributing in the provident fund under the
Rules of 1985 actually commenced. All this happened in 1998. No issue survived in law nor in
fact that petitioners were temporary government servants covered under rule 4 of Rules of
1985, and therefore, entitled to be a member of the fund. No objection in that regard was
raised by the State. As a model employer, the State rightly discharged its obligation under
Rules of 1985 by extending benefits admissible under a welfare scheme. Even otherwise, the
State has treated the petitioners to be temporary government servant and thereby covered
under the rules. (WORDS 495)
 Part 5 EXERCISE No. 91

He has also cited two decisions to urge that the persons for whom this petition is being
espoused claim themselves to be purchasers and barring a few sale deeds most of the
purchases have been made after the notification under Section 4 of the 1894 Act. Therefore,
they did not have any right and as such their acts cannot be espoused in view of the law laid
down by this court in the case of Moti Lal Goel Vs. State of UP, 2014 (2) ADJ 687 and the
judgment of the Apex Court in the case of Meera Saini vs State of UP, (2008) 9 SCC 177. He
has then urged that since the petitioners have misrepresented facts before this court about
their status and their entitlement to contest the acquisition proceedings, the same amounts to
an abuse of process of court and hence the writ petition deserves to be dismissed by this
Court. Learned counsel for the petitioner urged that the court fee had already been paid
consequent to the direction of the High Court on 29th January, 2008. As noted above, the
court fee was paid after the judgment. A writ petition has to be filed duly stamped and court
fee paid which is ordinarily and normally a pre-condition for the filing of a writ petition. The
Court can however issue directions for making good any deficiency, but in the present case it
was only under a final judgment dated 29.1.2008 that the deposit of court fee was permitted
on behalf of 291 persons. The judgment has already been set aside by the Apex Court. The
impact, therefore, is that any deposit of court fee made by such persons cannot be a ground to
be pressed into service for treating it to be the fulfillment of a condition of a proper and
necessary party.

Having heard learned counsel for the parties, we find that this entire issue having been
raised before this Court has almost taken ten years, and five years after the remand from the
Apex Court in 2012. During this period no attempt has been made by any person claiming
himself to be the purchaser of the land who may have filed any application for impleadment or
for pursuing the writ petition. Learned counsel for the petitioner, as indicated above had at the
time of hearing made a request to file an impleadment application on behalf of such persons
who had deposited their court fees under the orders of this Court dated 29th January, 2008.
We can only observe that such an action does not appear to have been initiated or even
undertaken after the matter was remitted by the Apex Court or even before this Court till
2017. No purchaser or even the power of attorney holder through whom the sale deeds have
been executed, has come forward seeking hearing in this matter through any Vakalatnama or
application being filed which could have been done keeping in view the provisions of Chapter
XXII Rule 5A of the Allahabad High Court Rule, 1952. (WORDS 507)
 Part 5 EXERCISE No. 92

Shri Dinesh Kakker, learned counsel appearing for the petitioners in the connected writ
petition vehemently contended that while passing the order impugned dated 6.7.2017 learned
Debt Recovery Tribunal had made certain passing observations that the respondents had
deliberately moved to the NCLT as a counterblast or just to delay the present proceeding only
with this object the defendants/respondents have opted to file petition before the NCLT taking
advantage of the provisions of IBC, 2016. At this stage, such view was unwarranted. He
further made submissions that even though learned DRT was of the view that the IBC, 2016
will prevail over the Act of 1993 as far as corporate entity is concerned but contrarily it has
proceeded against the other guarantors/defendants. Learned DRT has also erred in law while
interpreting the order passed by the NCLT that there is neither any specific order by the NCLT
nor there is any restriction by the said Court not to proceed against individual
guarantors/mortgagors. He has also placed reliance on various provisions of IBC, 2016, which
pertain not only to the company but also to the individual guarantors/mortgagors. While
making submission, learned counsel for the petitioners has vehemently contended that learned
DRT has failed to consider that there are already various safeguards in the IBC, 2016 wherein
the interest of creditors are protected. In this backdrop, he submitted that there was no
deliberate attempt by the respondents/petitioners to delay the proceeding and once the
amount/debt is not crystallized as yet, then there was no occasion for the Tribunal to proceed
in the matter.

On the other hand, Shri Satish Chaturvedi, learned counsel appearing for the
respondent-Bank has vehemently opposed the writ petitions by submitting that against the
impugned order the petitioners have got efficacious alternative remedy to assail the validity of
the impugned order passed by the Debt Recovery Tribunal before the Debt Recovery Appellate
Tribunal. Admittedly, the petitioners are defaulter guarantors and they cannot escape from the
liabilities due to the bank. Under the IBC 2016, there is no restriction not to proceed against
the guarantor independently. The rights of the respondent bank are flowing from the deed of
guarantee executed by the petitioners. The respondent bank has rightly proceeded to enforce
the rights available to it. The Debt Recovery Tribunal has jurisdiction to continue with the
proceeding against the guarantors of the principal debtor. The recovery proceedings were
initiated by the respondent bank before the DRT prior to the order of the NCLT dated
30.5.2017 and the said order does not come in the way of the DRT in proceeding against the
petitioners as guarantors. The proceeding can be initiated against the guarantors for recovery
of debt for the reasons mentioned in the order under challenge. Learned NCLT has passed the
injunction order relating to the Corporate Debtor and there is no order in favour of the
guarantors including the petitioners. There is no legal bar for the DRT not to continue with the
proceeding against the guarantors of the principal debtor. (WORDS 501)
 Part 5 EXERCISE No. 93

We are unable to agree to this proposition for the simple reason that the said
Government Order spells out that if appointments are made in excess of the posts advertised,
then such appointments will be saved to a certain extent. In the instant matter Dr. Phulena
Shukla was never appointed either in excess of the sanctioned posts, excess of vacancies or in
excess of the posts advertised for selections. The Government Order only speaks of
appointments against posts in excess of that which have been advertised. The same does not
envisage a post in excess of the sanctioned strength. Dr. Phulena Shukla has himself claimed
appointment against the post that was held by Sri Ramesh Chandra Mishra who had been
dismissed from service. In this contingency the Government Order does not come to his aid at
all and consequently this argument is rejected. The only question that now remains to be
examined is as to whether the payment of salary to Dr. Phulena Shukla was against a post
within the sanctioned strength or not for which he claims his appointment.

We would have ourselves recorded findings on the material available on record, but a
major hurdle that has come in our way is the non-impleadment of the Sanskrit University,
Varanasi as a respondent in either of the petitions. We have our doubts about their non-
impleadment by both the rival contenders as the real picture would have emerged with the
process of approval undertaken by the University against a sanctioned post and available
vacancy. The version of the University therefore is not available before this Court but the
Authorities ought to have proceeded only after putting the University to notice and calling for
the records from the University. It is evident from the facts that this exercise was attempted
by the District Inspector of Schools while passing the order dated 20.12.2001 which indicates
only an unsure status of the approval of the appointment of Madanmohan Pandey on the
verification of the approval dated 05.08.1992.The aforesaid doubt has been discussed by us
hereinabove. Similarly in the case of Dr. Phulena Shukla, the earlier order of the Deputy
Director Education dated 31.12.2003 which is impugned in the first writ petition does not
reflect the correct picture after a proper verification of the facts. In this background, we find
that neither the order dated 31.12.2003 can be sustained nor the order of the State
Government dated 16.07.2015 can be sustained. For the same reason the other intervening
orders of the District Inspector of Schools, the Deputy Director Education or any opinion
expressed by the Authorities can be stated to have taken notice of all the facts and verified it
from the Sanskrit University before arriving at any conclusion. We have already made
observations hereinabove on the issues raised by the counsel for the parties and we therefore
now expect the Authorities to proceed only after taking into consideration the aforesaid
observations and pass appropriate orders as it involves the fate of the continuance of the rival
contenders and their claim to salary. (WORDS 508)
 Part 5 EXERCISE No. 94

A joint reading of Sub-section 2 of Section 5 and Section 9-A leave no doubt that once
consolidation operation starts on the publication of notification under Section 4, then any right,
interest and title in respect of any land which is the subject matter of such consolidation
operations, is to be determined by the Consolidation Authorities, however as far as cancellation
of deeds are concerned, it is the prerogative of the Civil Courts and Consolidation Authorities
that they do not have any jurisdiction to cancel instruments i.e. sale deed or gift deed etc., but
this does not mean that in proceedings under Section 9A the Consolidation Courts can not take
into consideration such sale deeds etc. for the purposes of determination of rights, title and
interest of the parties in the land in question. This question fell for consideration before the
Supreme Court way back in 1970 itself in the case of Gorakh Nath Dube (supra) wherein the
Supreme Court took note of a Division Bench Judgment of this Court in Lalit Shukla Vs. Sita
Ram and others, reported in 1988 ALJ 755 wherein the question whether a suit for cancellation
of a sale deed, which was pending on the date of notification under Section 4 of the Act abates
under Section 5(2) of the Act. The jurisdiction of the Consolidation Authorities to go into
questions relating to the validity of the sale deeds, gift deeds and Wills also fell for
consideration. The Supreme Court after noticing the aforesaid judgment found therein a fairly
comprehensive discussion of the relevant authorities of the Allahabad High Court, the
preponderating weight of which was cast in its favour that question relating to the validity of
sale deeds, gift deeds and Wills could be gone into in proceedings before the Consolidation
authorities because such questions naturally and necessarily arose and had to be decided in
the course of adjudication on rights or interests in land which are the subject matter of
consolidation proceedings.

The Supreme Court opined that a distinction can be made between cases where a
document is wholly and partially invalid so that it can be disregarded by any Court or authority.
It held that an alienation made in excess of power to transfer would be to the extent of excess
of power. It further held that an adjudication on the effect of such purported alienation would
be necessarily implied in the decision of a dispute involving conflicting claims to the rights or
interests in land which are the subject matter of consolidation proceedings. The existence and
quantum of rights claimed or denied will have to be declared by the consolidation authorities
which would be deemed to be invested with jurisdiction by necessary implication of their
statutory powers to adjudicate upon such rights and interest in land to declare such documents
effective or ineffective but where there is a document, the legal effect of which can only be
taken away by setting aside its cancellation. (WORDS 493)
 Part 5 EXERCISE No. 95

Sri Sudhir Kumar Singh contends that by virtue of the provisions of Section 55 of the
1965 Act whatever benefits are available, the acquisitions under the Land Acquisition Act, 1894
the same would automatically be available to all such acquisitions under the 1965 Act. He
submits that since the 2013 Act refers to the provisions of 1894 Act and the acquisitions made
thereunder and is a beneficial piece of legislation for farmers then by adopting the analogy of
the latest apex court decisions, the provisions of the 2013 Act should also be read as extending
benefits to the acquisitions made under the 1965 Act. In the event such an interpretation is
avoided, the same would result in discrimination and will violate Article 14 of the Constitution
of India. The contention, therefore, is that section 24(2) of the 2013 Act and its implications
are also clearly available to acquisitions made under the 1965 Act under section 28 and section
32 thereof read with section 55. Sri Singh has then invited the attention of the Court to the
decision in the case of U.P. Avas Evam Vikas Parishad vs. Jainul Islam and another, reported
in AIR 1998 SC 1028 to urge that in that case also where the matter relating to payment of
higher compensation arose, the same was interpreted in favour of the tenure holders so as to
include the subsequent amendments that were brought about in the 1894 Act to pay higher
compensation. He, therefore, submits that discrimination was clearly the issue that was
resolved therein and it was held that the compensation payable for acquisitions under the 1894
Act would be directly applicable with all its subsequent amendments in relation to acquisitions
under the 1965 Act. It is in this manner that the legislation was interpreted to be a beneficial
piece of legislation and was, therefore, extended in order to avoid discrimination. Such analogy
should also be applied in the present context of the applicability of the 2013 Act.

He has then invited attention of the Court to the decision of the Apex Court in the case
of Nagpur Improvement Trust vs. Nipendra Kumar & Others, AIR 2002 Supreme Court 349 to
contend that here also the Apex Court had ruled adopting the reasonings of Jainul Islam's case
to hold that by virtue of section 55 of the 1965 Act amendments that were brought about in
1894 Act will also be treated to be incorporated for the purpose of extending benefits of higher
compensation. He submits that such a construction would be leaning in favour of the
constitutionality of the provisions of 1965 Act or else as in the present case it would result in
repugnancy. He submits that different principles of compensation cannot be adopted for the
purpose of extending such benefits which issue was also dealt with in the Nagpur Improvement
Trust case in para 54 thereof and he has then relied on the analogy that has been drawn for
extending the benefits of the 2013 Act in certain contingencies to the aid of tenure holders.

(WORDS 509)
 Part 5 EXERCISE No. 96

The submission of learned counsel for the petitioner is that the allegations of infidelity
against wife made by the husband are a counterblast of the proceeding initiated by wife for
illegal demand of dowry and claim of maintenance. The allegations levelled in divorce petition
are without any basis. Sufficient documentary evidences have been filed before the family
court to substantiate that the child was born out of the wedlock of the parties and the
allegations of wife having illicit relationship with another man are baseless. Submission is that
the Family Court could not have ordered for conducting DNA test in a routine manner without
applying its mind on the evidence brought before it merely on the basis of allegations made in
the divorce petition. Learned counsel for the husband, on the other hand, placed reliance upon
the judgment in Deepa Roy (supra) to submit that the Apex Court in that case had directed
that in case of allegations of infidelity of wife, it would be impossible for husband to establish
and confirm the assertions made in the pleadings. DNA testing is the most legitimate and
scientifically perfect means which a husband can use to establish his assertion of infidelity. It is
most authentic, rightful and correct means also for wife to rebut the assertions of her husband
and to establish that she had remained faithful, not adulterous and loyal to her husband. The
clear picture would be drawn by conducting DNA test and if wife is right, she shall be proved to
be so. She can have no objection for DNA testing which would definitely prove the legitimacy
of the child.

Considering the submission of learned counsel for the parties and the facts noted
above, a specific query was made from the learned counsel for the husband as to the stage of
the Divorce petition. Some of the evidences filed by the wife enclosed in this petition have also
been taken into consideration. Having considered the nature of allegations and the evidence
filed by the wife, this Court is of the prima facie view that the questions as to whether the child
was born out of the wedlock of the parties and whether the allegations of infidelity are false
has to be examined on appreciation of evidence in the Divorce petition. As per own averment
of the husband in the Divorce petition, the fact that the marriage of the parties solemnized on
28.6.1999 was consummated. The allegations have been levelled against wife on account of
premature birth of the child i.e. after approximately after a period of seven months from the
date of marriage. The assertions in the divorce petition are that the wife had admitted that the
child was illegitimate. The question before the Family Court, therefore, would be to find out as
to who is telling the truth. The evidence led by the parties have yet not been examined by the
Family court and it had proceeded to direct for conducting DNA test in a mechanical manner.

(WORDS 499)
 Part 5 EXERCISE No. 97

It is further submitted that the notice dated 17.7.2015 which is said to have been sent
by the complainant was never served upon the applicant as the notice itself does not show any
date and time when it was served upon the applicant. Learned Magistrate has also lost sight of
the fact regarding the service of legal notice, which was returned back to the complainant
unserved due to incomplete address of the applicant. The applicant in between 11.7.2015 to
24.7.2015 was under legal custody in connection with a case under Sections 420, 467, 468 IPC
and was released on bail on 29.7.2015, therefore, the service of legal notice dated 17.7.2015
upon the applicant does not arise at all. The legal notice was never served upon the applicant
and without service of legal notice the proceeding u/s 138 of the Act against him cannot be
initiated. It is further submitted that the complaint was also filed beyond stipulated period as
provide under the Act. The complaint should have been filed within 45 days but the same has
been filed after 51 day, hence it is time barred and is not maintainable. It is also submitted
that the opposite party no. 2 has filed the complaint within the jurisdiction of Firozabad
whereas the applicant resides in Saharanpur and he was not aware about the proceeding
initiated against him and as such he was not served with the summons and could not appear
before the court concerned, on account of which, without issuing bailable and non-bailable
warrant, the process u/S 82 Cr.P.C. has been issued against him. Therefore, the process u/s
82 Cr.P.C. is absolutely illegal and unjust. The entire proceeding initiated against the applicant
in the absence of impleading the Firm is vitiated in law. It is lastly submitted that no prima
facie case is made out against the applicant as the entire allegations made in the complaint are
totally false and fabricated.

Per contra learned A.G.A. has contended that the complainant had suffered great loss
of Rs.7,98,000/- which has been paid by the applicant through cheques and the same has not
been disputed by the applicant. Thereafter the applicant had requested the bank for making
stop payment of the amount, which itself shows malice intention of the applicant to cheat the
complainant. There is also no dispute that the cheque was not issued by the applicant. The
applicant must have a sufficient fund in the account of the date of signing of the cheque, but
when the cheque was presented, the amount was found insufficient in the account of the
applicant. Hence the burden of proving that the cheque was not dishonoured on account of
insufficiency of fund is on the applicant and on this ground the complaint filed by the opposite
party no.2 cannot be quashed. It is further submitted that instead of giving reply to the legal
statutory notice after the cheque was returned with the endorsement of insufficient fund, the
applicant could have given the explanation disowning his liability to pay any amount. (505)
 Part 5 EXERCISE No. 98

Learned counsel for the applicants submits that the applicant no. 1 is the husband who
has divorced the opposite party no. 2 on 08.11.2015 and also obtained a 'Fatwa' from Jama
Masjid, Agra on 10.11.2015 whereby the Mufti City, Agra has affirmed the Talaqnama and
pronounced that the opposite party no. 2 after being divorced, has become impure (Haraam)
for the applicant no. 1. He submits that after the Talaq, the applicant no. 1 had sent a notice to
the opposite party no. 2 that in presence of persons/officers at Parivar Paramarsh Kendra,
Agra on 08.11.2015, he had divorced her by saying thrice that 'I divorce you Sumaila Afgani'
and thus made her free to lead her life in the manner she wants. It is also mentioned in the
notice that on 10.11.2015 he has obtained a 'Fatwa'. He therefore submits that since the
applicant no. 1 has divorced the opposite party no. 2 on 08.11.2015 and as such the
application dated 19.11.2015 filed by opposite party no. 2 under Section 156(3) Cr.P.C.
making certain allegations is malicious and abuse of process of court and therefore, the
impugned summoning order dated 28.11.2016 in Complaint Case No. 2393 of 2016 passed by
the learned Additional Chief Judicial Magistrate, Court No. 10, Agra deserves to be quashed. He
further submits that once the applicant no. 1 has divorced the opposite party no. 2 on
08.11.2015, the question of commission of offence under Sections 498-A , 323, 504, 506 IPC
and Section 3/4 Dowry Prohibition Act does not arise at all. In support of his submissions, he
referred to the pleadings of paras 5, 12, 13 and 14 of the affidavit accompanying the
application, the copy of the intimation of Divorce and the copy of the Fatwa. He submits that
after the aforesaid validly given Talaq by the applicant no. 1 to the opposite party no. 2 on
08.11.2015, all her actions including the impugned complaint case proceeding are null and
void.

Learned counsel for opposite party no. 2 submits that in fact the applicants used to
beat the opposite party no. 2 mercilessly. They were not giving her food to pressurize her
parents for dowry. They have forcibly obtained her signature and thumb impression on blank
papers. On some papers, they forced and compelled the opposite party no. 2 to write and sign
as dictated by them. Thereafter, they have ousted the opposite party no. 2. He refers to the
application of opposite party no. 2 dated 19.11.2015 in which the true incidents have been
mentioned. He submits that the story of divorce is totally false and in any case it is wholly
illegal and unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India
and thus wholly null and void. He refers the statement of the complainant/ opposite party no.
2 recorded under Section 200 Cr.P.C. as well as the statement of witnesses under Section 202
Cr.P.C. He thus submits that the impugned order does not suffer from any infirmity. (503)
 Part 5 EXERCISE NO. 99

It appears that PW-11 Smt. Meenu was not making herself available in the court
because she apprehended danger to her life and it was only after making enormous efforts
that the trial court could ensure her presence for the purpose of cross examination in the
court. The difficulty in procuring her attendance and the delay caused because of her non
examination seems to have cast significant effect on the mind of the trial court and for
prompting it to close the evidence as the court for obvious reasons did not want to take any
chance to let the witness slip again during the trial.
It also appears that the additional reason to take a strict view in the matter was that
there was a direction of High Court to expedite the proceedings of the trial. Apparently the
order passed by the court below is such which cannot be very seriously assailed on the ground
of any illegality or impropriety and the view taken by the court below can also not be
castigated for being perverse. But despite this fact, when this Court takes an over all broader
view of the matter and keeps in perspective the imperative concept of fair trial, in the view of
the Court it appears necessary that the trial should be finally decided and adjudicated upon,
not on the basis of untested testimony of the witnesses, but after their testimonies have been
tested on the anvil of cross examination. Such a course would not only enable the court to
evaluate the evidenciary value and its worth more adequately but there shall also not be left
any chance for either of the parties to assail the final verdict of the trial court on the ground
that the judgment was based on unscrutinized testimonies which were never vetted on the
touchstone of cross examination. Off course, it goes without saying that whenever the court
feels that the adjournment sought by a party is not based on reasonable grounds or is actually
having an oblique motive behind the same to delay the trial or to otherwise defeat the ends of
justice, it is very much within the powers of the court not to grant the adjournment and close
the evidence. But the present matter does not display any such circumstances on the basis of
which this Court may come to the conclusion that the adjournment was sought for any of such
reasons. The first date on which the witness was available was 8.12.2015 and the next date
was fixed as 10.12.2015. It also does not appear to be a disputed fact that the counsel who
had been conducting the trial was no more counsel in the case because of his own refusal or
because of the withdrawal of the instructions by the applicants. In such a situation, the
opportunity of two days time to engage the new counsel to cross examine the witness and
conduct the trial does not appear to be an adequate opportunity. (WORDS 496)
 Part 5 EXERCISE NO. 100

In pursuance of the order of this Court dated 17 February 2016, the University has
filed a counter affidavit in these proceedings through its Registrar. The University has stated
that after the entrance examination is conducted, students are at that stage required to
deposit only an amount of Rs. 500 for registration for the purpose of counselling and document
verification. Thereafter students are furnished with an opportunity to participate in counselling
and to lock the college of their own choice. The allotment of institutions is made after this
process is completed on the basis of merit and the choice which is indicated by the students.
After the institution is allotted to a successful candidate, the candidate is required to confirm
his or her seat by depositing an amount of Rs.15,000/- as a confirmation fee against which a
confirmation slip is generated. The purpose of generating a confirmation slip is to calculate the
actual number of vacant seats for the next round of counselling.
At this stage, it is open to the candidates either to deposit an amount of Rs. 15,000/-
for confirmation of the seat or to quit the process of counselling so as to leave the seat open
for the next round of counselling. The University retains the amount of Rs.15000/- which is
non-refundable for the reason that the students must seriously participate in the counselling,
otherwise students would lock their choice and obtain a letter of allotment and subsequently
not turn up to take admission. If this were to take place, the University will not be in a position
to calculate the actual number of vacant seats for the second round of counselling for other
students who have not obtained admission in the first round. This amount of Rs. 15,000/- is
adjusted against the annual fee and the University transmits the amount to the college where
the students have taken admission. The amount is kept in a separate account of the U.P. State
Entrance Examination. The balance which remains after transmission of the amount to
respective colleges is spent on the development of Government Engineering Colleges in the
State and not for the use of the University. The Government Degree Colleges charge a low fee
and as a result of this, these colleges are unable to generate funds for their work.
Moreover, it has been stated that the sanction of the State Government is taken for the
utilization of the amount. For the current session, it has been stated that 26,589 students
deposited an amount of Rs.15,000/- each after counselling, out of which, until date, the
University has transmitted the amount deposited by 20,365 students to the concerned colleges
against the annual fee for 2015-16 where they have taken admission. For 2015-16, the
process is going on since the University transmits the amount to the college after a demand
being raised. It has also been stated that these apply only to a situation where a student has
taken admission in a college and has left the course of study under which circumstances,
guidelines have been laid down. (WORDS 509)