Judgment on Costs

http://www.stpl-india.in/SCJFiles/2011_STPL(Web)_931_SC.pdf

 

Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust

If interim order is not specifically discharged, no need to have it specifically recalled

(2005) LCD (1) 661

Unauthorized occupation of ponds and public lands

Complaints against unauthorized occupation over the public ponds or other similar public lands, D.M. should take all required actions.
Judgment/Order - PUBLIC INTEREST LITIGATION (PIL) No. 63380 of 2012 Judgment/Order Dated - 6/12/2012 at Allahabad  
Title - Prem Singh Vs. The State Of U.P. And Others 
Coram - Hon'ble Shiva Kirti Singh,Acting Chief Justice and Hon'ble Pradeep Kumar Singh Baghel,J.

If the foundational order is bad, it cannot be corrected subsequently

In State of Orissa & Anr. v. Mamta Mohanty, (2011) 3 SCC 436, this Court has held that any appointment made in contravention of the statutory requirement i.e. eligibility, cannot be  approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time.

If Land Acquisition is bad, or lapsed, state should return the land

2012(7)ADJ398 Bunda v. State UP

the Government land and/or Panchayat land is normally required to be disposed of by public auction.

As held by the Hon'ble Supreme Court in case of Parashram Thakur Dass and Ors. v. Ram Chand and Ors. reported in MANU/SC/0173/1982 : [1982]3SCR288 , Netai Bag and Ors. v. The State of West Bengal and Ors. reported in MANU/SC/0604/2000 : AIR2000SC3313 ., the Government land and/or Panchayat land is normally required to be disposed of by public auction. 

delay in delivery of judgment sufficient to set it aside

I (2000) SLT 370
(Equivalent Citation:- I (2000) CLT 268 (SC), 2000(2) SRJ 215, 2000 AIR(SC)
775, 2000(1) Scale 146, 2000(1) Supreme 209, 2000(1) SCR 254, 2000(2) SCC
13, 2000(1) JT 266)
:BHAGWANDAS FATECHAND DASWANI & ORS. v. H.P.A. INTERNATIONAL & ORS.

Delay in Delivery of Judgment : Sufficient to Set Aside Judgment under
Appeal -

Appointment of ineligible candidate is void

State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC 545 (Civil Appeal No. 6468 of 2012, decided on September 14, 2012):

Relaxation of eligibility criteria prescribed for post in question which stood vacated upon death of person who was employed on said post from family concerned on humanitarian grounds is impermissible. A person who does not possess requisite qualifications cannot even apply for recruitment since his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking of eligibility for the post cannot be cured at any stage and appointing such a person would amount to a serious illegality and not mere irregularity. Moreover, such person cannot approach the court for any relief because he does not have enforceable right.

Urgency clause invocation - Land Acquisition

Urgency clause cannot be lightly invoked

2012 (9) SCC SCALE 3
Bharat Sewak Samaj v. Liet. Governor

When a ground is not considered, high court to reconsider the judgment

Tamil Nadu Wakf Board v. Syed Abdul Quader, 2012 (10) SCALE 233 (Civil Appeal No. 2232-2233 of 2002) dated Oct 9, 2012

Malice in law

Ravi Yashwant Bhoir v. District Collector, Raigad, 2012 (2) SCC 407

Website / newspaper is secondary evidence

Samant N. Balkrishna v. V. George Fernandes, (1969) 3 SCC 238

Recall application be filed only by the lawyer who had argued the case and not by subsequent counsel

Recall application be filed only by the lawyer who had argued the case and not by subsequent counsel

2006 9 ADJ 427

Caveat - to be reported even after 90 day period

2006 (1) ADJ 618 (All)

Once a caveat is lodged in writ, stamp reporter is bound to make a report about filing of the caveat - not competent to ignore caveat on the ground that 90 day period has lapsed

Election Process & Court Interference

Where the election process has started, it must come to its logical conclusion and once it has come to its logical conclusion by declaration of result of the election, the aggrieved person may challenge the election by filing the election petition or civil suit in accordance with law and this Hon'ble Court may not ordinarily interfere with the election under Article 226 of the Constitution of India. The aforesaid view has been expressed by the Hon'ble Supreme Court of India in the case law reported in A.I.R. 1999 S.C. 1566 = 1998 (4) SCC 529 :: In Re: Umesh Shivappa Ambi & Others Vs. Angadi Shekara Basappa & Others, A.I.R. 1977 S.C. 1703 : In Re: K.K. Srivastava Vs. Bhupendra Kumar Jain, which has been relied upon and reiterated by this Hon'ble Court in the matter reported in (1993) 2 UPLBEC 1333 :In Re: Basant Prasad Srivastava & Another Vs. State of U.P. & Another, C.O.M. Shiksha Prasar Samiti Sagwar Vs. State of U.P. reported in 2008 (3) A.L.J. 329.

 

Judgments and Statute conflict

State of Maharashtra v. Kumari Tanuja, AIR 1999 SC 791 - where the state sought to overrule the high court judgment without altering or neutralising the legal basis thereof by producing relevant additional material, it was rightly held illegal by the high court.

Same in Haryana v. Karnal Cooperative Farmer's Society, (1993) 2 SCC 363

Mutation entry is proof of possession

Mutation entry is proof of possession, though not binding

It is prima facie indicator of holder of title

2012 (2) ALJ 732

Recovery of Public Debts

In view of the above, the law can be summarised to the effect that the recovery of the public dues must be made strictly in accrodance with the procedure prescrived by law. The liability of a surety is co-extensive with that of principal debtor. In case there are more than one surety the liability is to be divided equally among the sureties for unpaid amount of loan. Once the sale has been confirmed it cannot be set aside unless a fundamental procedural error has occured or sale certificate had been obtained by misrepresentation or fraud. 

 

The authority is duty bound to decide whether debt can be satisfied by sale of part of the property. Valuation is different from minimum price and must be done fairly.

 

2012 (4) ALJ 653 - Ram Kishun v. State of UP

Dying in harness - good case

2006 1 AWC 273

2012 7 SCC 248

Recovery of Public dues - principle of proportionality and best price

The financial institutions are not act as 'property dealers' and secured assets are not to be disposed of in an arbitrary manner. It has to be sold at best price and only that much of the property which is sufficient to meet the dues must be sold.

 

2012 (4) ALJ 653 - Ram Kishun v. State of UP

Suppression of material facts

Oswal Fats & Oils, 28 (2010) LCD. 640

A person who does not disclose all material facts has no right to be heard on merits of his grievance.

Substantial question of law

Substantial Question of Law will also arise where the legal position is clear but the court below has not decided the matter either ignoring or acting contrary to such legal principles.

Narendra Gopal Vidyarthi v. Rajat Vidyarthi, 28 (2010) LCD 1

Banda Development Authority

Banda Development Authority v. Moti Lal Agarwal, (2011) 5 SCC 394.

 

Limitation to be made and decided first by the court itself.

 

Manner of taking over of possession under the LA Act, 1894 explained.

Power to create districts

1999 (17)(1) LCD 323

Person Aggrieved but not party to the lis may file an appeal

In State of Punjab v. Amar Singh, AIR 1974 SC 994 to the effect that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.

Application in decided writ petition is not maintainable

2011 (29) LCD 2421
Rajendra v. State of UP

Dismissed with costs.

See also Brahmdutt Sharma 1987 Supreme Court

Land recorded in the pond must not be allowed to be allotted to any body for construction of a house or any allied purpose

1. AIR 2011 SC 1123
2. AIR 2001 SC 3215

Stale charges

JT 2005 (7) SC 417 - PV Mahadevan

JT 1998 (3) 123 - State of AP v. N. Radhakrishnan

JT 1990 (2) SC 54 - State of MP v. Bani Singh

DRT ousts and overrides the jurisdiction of the company court

Allahabad Bank v. Canara Bank, Supreme Court

Consequential Order alone is challenged - writ not maintainable

1.      In Paritosh Singh & Ors v. State of UP & Ors, reported in 2011 (29) LCD 610, this Hon'ble Court has been pleased to hold that

 

"35. .. In the present case, the consequential order alone has been challenged and the original decision of the State Government dated 27.8.2007 has not been challenged. In the case of Government of Maharashtra v. Deokar's Distillery reported in (2003) 5 SCC 669 the Hon'ble Supreme Court  has held that when Writ Petition are filed challenging only consequential orders without challenging the original orders by which the cause of action arose, such Writ Petition deserve to be dismissed as not maintainable."

 

2.      The above stated principle has also been reiterated by this Hon'ble Court in  Writ A No. 51649 of 2011 (C/M Seth Basudeo Sahai Inter College, Kannauj v. State of UP) wherein it has been held by an order dated 14.9.2011 that:

 

"In  Maharastra v. Deokar's Distillery, reported in (2003) SCC 669, Barkat Ali v. Badri Narain, reported in AIR 2008 SC 1272 and P. Chithranja Menon v. A.Balakrishnan, reported in AIR 1977 SC 1720 has held that if the basic order is not under challenge, consequential order cannot be subjected to challenge.""

Court Interference in Transfer

1.      In Mohd Masood Ahmad v. State of UP & Ors, reported in (2007) 8 SCC 150, the Hon'ble Supreme Court has been pleased to hold that since the petitioner was on a transferable post, the High Court has rightly dismissed his Writ Petition because transfer is an exigency of service and is an administrative decision and further that interference by the courts with transfer orders should only be in very rare cases. Further, in Registrar General, High Court of Judicature at Madras v.  P. Perachi, (2011) 12 SCC 137 and in Shilpi Bose v. State of Bihar, (1991) Suppl (2) SCC 659 the Hon'ble Supreme Court has been pleased to hold that order of transfer cannot be made to subject of judicial review.

 

2.      State of U.P. v. Gobardhan Lal, III (2004) SLT 210=(2004) 11 SCC 402 followed in

"A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires"

 

Until rules are formulates guidelines to be adhered to fetch best price

Kerala Financial Corpn. v. Vincent Paul, (2011) 4 SCC 171

Public Law Remedy is not available for disputed questions of fact

 

The public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated.

 CIVIL APPEAL No . 6383 o f 2012  dated 10th September, 2012 (Supreme Court) in M/s Real Estate Agencies v. Govt of Goa

Time period to challenge arbitral award starts when signed copy of the award is handed over to the party

Delivery of signed copy to the party is a material fact that triggers the time limit under Section 34 of the Arbitration & Conciliation Act, 1996. When a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act.

SPECIAL LEAVE PETITION (CIVIL) No. 23860 of 2010
dated 21.9.2012 (Supreme Court)

Right of Cross Examination and Access to Documents

1.      Kashinath Dikshita vs. Union of India (1986) 3 SCC 229, the Apex Court was considering the importance of access to documents and statement of witnesses to meet the charges in an effective manner in disciplinary proceedings against a government servant. The court observed as under:-

 

"10. …. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

 

2.      That, in State of Uttar Pradesh vs. Saroj Kumar Sinha (2010) 2 SCC 772,  the Apex Court has further dealt with the argument that no prejudice has been caused to the appellant in the following words:-

"12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

 

3.       That, in Bareilly Electric Supply Co. vs. Workmen AIR 1972 SC 330, this is what the learned Judges have held:-

"the application of the principles of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon and to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used."

 

Decision at the behest of politicians / political persons - invalid

Partabpur Co. v. Cane Commissioner, Bihar at AIR 1970 SC 1896

Dictates of higher authorities

(i) Partabpur Co. Ltd. v. Cane Commissioner Bihar AIR 1970 SC 1896
(ii) State of U.P. v. Maharaja Dhaimander Prasad Singh AIR 1989 SC 997
(iii) Gujarat Gas Co. Ltd. v. CIT (2000) 245 ITR 84 (Guj)
(iv) Sheo Narain Jaiswal v. ITO (1989) 176 ITR 352 (Pat)
(v) Yeshwant Talkies v. CIT (1986) 157 ITR 103 (MP)
(vi) CIT v. T.R. Rajakumari (1974) 96 ITR 78 (Mad)
(vii) Asstt. CIT v. O.P. Gupta (2001) 71 TTJ (Del) 82 : (2000) 75 ITD 123 (Del)
(viii) Jawahar Lal v. Competent Authority (1982) 137 ITR 605 (Del)
(ix) Rajputana Mining Agencies v. ITO (1979) 118 ITR 585 (Raj).

A power of attorney holder cannot file for writ of certiorari, mandamus and prohibition

2010 (28) LCD 1

A person who does not disclose all material facts has no right to be heard on the merits of his grievance

2010 (28) LCD 640 (Supreme Court)

Hamja Judgment - if order of lower court not being followed remedy is to approach the lower court itself

2010 (28) LCD 637
Mohd Hamja v. Addl Civil Jude

Second Appeal before Board of Revenue not proper unless Board of Revenue frames a question of law- Section 331(4) of UPZALR Act, 1950

2010 (28) LCD 468

Ghanshyam v. Board of Revenue

Land Acquisition Act, 1894 - Sections 4 and 6 - Acquisition for Private Persons

29th August, 2012
CIVIL APPEAL NO. 6183 OF 2012
(Arising out of SLP(C)No.26705 of 2010

Acqusition of land for private coloniser - quashed.

Financial Burden & Cut Off Date

In State of Punjab and Ors. v. Amar Nath Goyal and Ors., VI (2005) SLT 313=(2005) 6 SCC 754 this Court had occasion to consider the very same issue. After referring to a number of other authorities, it was held that financial constraints could be a valid ground for introducing a cut-off date while introducing a pension scheme on revised basis. Thus, refusal to make payments of arrears from 1.1.1986 to 28.2.1989 on the ground of financial burden cannot be held to be an arbitrary ground or irrational consideration. Hence, the argument based on Article 14 of the Constitution must fail.

Withdrawal of Schemes by Government

Any concession given pursuant to a scheme of the State can be withdrawn anytime, and for its continuation Writ Petition will not lie.  Bannari Amman Sugars LTD v. Commercial Tax Officer, 2005(1) SCC 625

Naming of Districts - Power of State

Naming of districts – power of the State. See Dr. V Balasundaram v. Chief Minister of Tamil Naldu, AIR1994Mad20

Doctrine of Political Questions

Doctrine of political questions' the court will not entertain matters that are inherently political and do not involve legal question, or where the questions involved are overtly political          Databhau v. State of Maharashta, 2007(3)BomCR667 (Bombay High Court)

Difference between "no opportunity" and "no adequate opportunity"

JT (1996) 3 SC 722
28 LCD (1) 263 (2010)

Special Appeal Pending - Writ Petitioner's interest to be protected

When special appeal involving the same questions of law which are subject matter of a fresh writ petition is pending adjudication, the interest of the writ petitioner is to be protected in the interim. 

Writ Petition No. 4047 of 2012 (S/S) dated 24.8.2012

Strict Construction of Taxing Statutes

A taxing statute, as is well-known, must be construed strictly. In Sneh
Enterprises v. Commissioner of Customs [2006] 7 SCC 714, it was held :

"While dealing with a taxing provision, the principle of 'Strict Interpre-
tation should be applied. The Court shall not interpret the statutory
provision in such a manner which would create an additional fiscal burden on
a person. It would never be done by invoking the provisions of another Act,
which are not attracted. It is also trite that while two interpretations are
possible, the Court ordinarily would interpret the provisions in favour of a
taxpayer and against the Revenue."

Alternative Remedy - Writ & Arbitration

AIR 2012 Chh 123 (relying on AIR 2008 SC 2160)

 

Action is not for enforcment of contractual obligation, but to protection the Petitioner from arbitrary action of the State - writ would be maintainable.

Cooperative Society would be public authority - if substantially financed

http://delhicourts.nic.in/JAN12/Northern%20zone%20Railway%20Employees%20Vs.pdf

 

AIR 2012  Del 112

 

NZRE Coop v. Central Registrar, Co-op Society

Societies registered under the Cooperative Socities Act would be 'public authority'

AIR 2012 Kerala 124 (Full Bench)

 

Right to Information Act

Debt Recovert Tribunal and Code of Civil Procedure

The DRT is not bound by Code of Civil Procedure, it has jurisdiction to exercise powers of Court as contained in Civil Procedure Code; it can travel beyond CPC provided it obserbes principles of natural justice.

 

AIR 2012 Bom 127

entitlement of back wages

 In PNB v. Virendra Kumar Goel, AIR 2004 SC 3988, the Hon'ble Supreme Court has been pleased to hold as under:

 

"The applicants shall be reinstated into their posts with continuity in service, back wages and all consequential benefits as are entitled to them under the law. They shall, however, refund the entire amount deposited into their bank accounts with interest accrued, if any, to the bank. Full refund of the amount by the applicants would be the condition precedent for reinstatement. Mr. Mukul Rohtagi learned ASG submits that applying the principle of 'No Work No Pay', back wages should not be allowed to them on their reinstatement. We are unable to accept this contention. The applicants were out of their jobs for no fault of theirs. Even otherwise, party in breach of contract can hardly seek for any equitable relief."

 

Similar view has been taken by this Hon'ble Court in 2007(3)ADJ1 Brijendra Prakash v. Director of Education and also in 2007 4 AWC 3382, Ram Narain Singh's Case, and in Mukeem Ahmad v. State of UP, Writ Petition No. 4599 of 2010 (S/S) dated 5.1.2011 (reported at MANU/UP/0056/2011

No work no pay - not applicable in case of forced retirement

2007(3)ADJ1, 2008 6 AWC5580 - Brijendra Prakash

Consequence of transaction in breach of court order

It is well settled principle of law that an authority proceeding with any matter after the prohibitory order passed by the Competent Court, has to be seriously viewed and the parties should be put back to the original position as no one can be permitted to enjoy the fruits of any order which was passed in contravention to the stay order. The said principle is fully explained by the Honourable Supreme Court in the decision reported in 2010 (4) SC 519 Manohar Lal (D) by Lrs v. Ugrasen (D) by Lrs.)

See also: 
2011(3)CTC46 (Madras)
AIR 1967 SC 1386
 AIR 1996 SC 135
AIR 2007 SC 1386

Writ not maintainable when consequential order alone is challenged

2011 29 LCD 610

Land Acquisition - Avoid Agricultural Land

Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792

Order II, Rule 2

Case :- MISC. BENCH No. - 2198 of 2012

Petitioner :- M/S.Roxy Petrochem Pvt.Ltd.Delhi Through Its Director

Respondent :- U.P.Financial Corporation Limited Kanpur Through M.D.&

Ors.

Petitioner Counsel :- S.B.Pandey

Respondent Counsel :- Prashant Kumar

Alternative Remedy

A Full Bench of this Court in Chandrama Singh Vs. Managing Director, U.P. Cooperative Union, Lucknow and others, 1991 (2) UPLEBC 898 has held that when a litigant wants to bye pass statutory alternative remedy, he must plead and place necessary facts in the writ petition to show that alternative remedy is not efficacious and speedy

Obiter dicta is also binding precedent - when

Obiter whether precedent- 2007(5)scc 428, 2012(30)lcd 1066.

Not necessary to hear the Respondent on a restoration application of a case dismissed in default where the Respondent was also absent

2012 (2) AWC 1408

Drawing of adverse inference from non production of documents

http://www.supremelaw.in/2012/07/union-of-india-vs-ibrahim-uddin-anr.html

 

CIVIL APPEAL NO. 1374 of 2008

 

Union of India v. Ibrahum uddin, July 17, 2012

 

ssue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot loose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court's order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary. 

Order obtained by fraud can be reviewed / recalled even absent any specific power

2012 (3) AWC 2930
Ashok Kumar Singh v. State of UP (CMWP 27152 of 2008) (Sunil Hali J)

Dominus litis

Nasiruddin versus State Transport Appellate Tribunal AIR 1976 SC 331

http://www.indiankanoon.org/doc/660181/

Counsel in Review Petition must be the same as the one in the original petition

Tamil Nadu Electricity Board & Anr. v. N. Raju Reddiar & Anr., I (1997) CLT 338 (SC)=AIR 1997 SC 1005

In case a ground raised has not been considered by the court, review is the appropriate remedy.

In case a ground raised has not been considered by the court, review is the appropriate remedy.

 

Narmada Bachao Andolan V (2011) SLT 36

Order 7, Rule 11 - to be decided only on the basis of plaint

The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183, Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59, Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC614, Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100, Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137, Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson / Managing Trustee, 2012 (6) JT 149.

Court will not give directions to fill vacancy or do regular selection

2012 (4) SCC 642

Exhaustion not to be insisted when matter pending for a long time

(2012) 4 SCC 786

Transfer at the behest of politicians

2008(5)ALT13(SC), [2007(115)FLR363], JT2007(12)SC467, 2008-1-LW79, (2008)1MLJ1044(SC), 2007(11)SCALE271, (2007)8SCC150, (2007)2SCC(L&S)806, [2007]10SCR72, 2008(1)SLJ430(SC), (2008)1UPLBEC523

 

There is nothing wrong as politicians are elected representation of the people and they have the prerogative to recommend transfers.

Ex parte report - Stamp Authority

2005 (98) RD 511), Ram Khelawan @ Bachcha vs. State of U.P. through Collector, Hamirpur & another and 2009 (27) LCD 442, Surendra Singh and another vs. State of U.P. & others. In para-13 of the judgment provides as under:-

"13. None of the authorities below besides the report of the Sub-Registrar has referred any other material in support of their orders. In Ram Khelawan @ Bachcha v. State of U.P. through Collector, Hamirpurt and another, 2005 (98) RD 511, it has been held that the report of the Tehsildar may be a relevant factor for initiation of the proceedings under Section 47-A of the Act, but it cannot be relied upon to pass an order under the aforesaid section. In other words, the said report cannot form itself basis of the order passed under Section 47-A of the Act. In the case of Vijai Kumar v. Commissioner, Meerut Division, Meerut, 2008 (7) ADJ 293 (para-17), the ambit and scope of Section 47-A of the Act has been considered with some depth. Taking into consideration the Division Bench judgment of this Court in Kaka Singh v. Additional Collector and District Magistrate (Finance and Revenue), 1986 ALJ 49; Kishore Chandra Agarwal v. State of U.P. and others, 2008 (104) RD 253 and various other cases it has been held that under Section 47-A (3) of the Act, the burden lay upon the Collector to prove that the market value is more than minimum as prescribed by the Collector under the Rules. The report of the Sub-Registrar and Tehsildar itself is not sufficient to discharge that burden."   

 

 

See also: http://indiankanoon.org/doc/1429837/

Court interference in policy matters

1. Directorate of Film Festival v. Gaurav Jain (2007) 4 SCC 737

14. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review [vide : Asif Hameed v. MANU/SC/0036/1989 : State of J&K [1989]3SCR19 ; Shri Sitaram Sugar Co. Ltd. v.MANU/SC/0249/1990 : Union of India - [1990]1SCR909 ; Khoday Distilleries v. MANU/SC/0242/1996 : State of Karnataka AIR1996SC911 , Balco Employees Union v. MANU/SC/0779/2001 : Union of India(2002)ILLJ550SC , State of Orissa v. MANU/SC/2387/2005 : Gopinath Dash AIR2006SC651 and Akhil Bharat Goseva Sangh v. MANU/SC/1795/2006 : State of Andhra Pradesh (2006)4SCC162 ].


2. Atyant Pichda Varg, (2006)6SCC718

Para 19. ...It is settled law that even policy matters have to be tested at the touchstone of arbitrariness and that the present policy is discriminatory and arbitrary....

3. Tata Cellular v. Union of India, (1994)6SCC651

4. Bhavesh D Parish v. Union of India, (2000)5SCC471 (but to be read carefully once)

26. Moreover in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and, therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all.

5. Brij Mohan Lal v. Union of India, 2012(4)SCALE450 (Civil Appeal No. 1276 of 2005 [Under Article 139 of the Constitution of India dated 19.4.2012)

70... The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.

72. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:

(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.
(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or Legislations.
(VI) If the delegate has acted beyond its power of delegation.

73. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the Courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the Courts will step in to interfere with government policy.

6. Union of India v.Dinesh Engineering Corporation [2001] 8 S.C.C. 491

7.  Subramiam Swamy v. Union of India

We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, arebound to perform the duties enumerated in Article 51A. Reference in this connection can usefully be made to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4 SCC 1.

Even if earlier judgment complied with, similar issue can be challenged subsequently

he question whether the government or a statutory body which accepted and implemented earlier decision of a court, can challenge subsequent decisions of the court following the such earlier decision, with reference to different but similarly placed aggrieved persons, was considered by this Court in State of Maharashtrav. Digambar MANU/SC/0740/1995 : AIR1995SC1991 and Col. B.K. Akkara (Retd.) v. Government of IndiaMANU/SC/4389/2006 : 2007(207)ELT3(SC)

 

AIR2009SC2322, 2010(3)ALT1(SC), JT2009(5)SC216, (2009)4MLJ148(SC), (2009)11SCC726, [2009]3SCR859, 2009(4)SLR520(SC) AICTE v. Surinder Kumar Dhawan

Challenge to compromise decree (Order 23, Rule 3)

Challenge to compromise decree under Order 23, Rule 3 can be made only in the court that recorded the compromise except when such court is a revenue court or other court of limited jurisdiction.

(2012) 5 SCC 525

Development Authority cannot be blamed for enchroachment, if any, made after possession of plot was delivered to original allottee

Development Authority cannot be blamed for enchroachment, if any, made after possession of plot was delivered to original allottee

HUDA v. Viresh Sangwan, (2012) 1 SCC 256

Courts will not interfere in process of evaluation of exam or its method

Courts will not interfere in process of evaluation , the process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialised courses, are all technical matters in academic field and the courts will not interfere in such process.

Sanchit Bansal (2012) 1 SCC 157

Court must examine the pleadings and then only pass orders

The court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.

(2012) 5 SCC 370
Maria Margarida v. Erasmo Jack De Sequeira

English Civil Procedure Rules and Woolf's Report relied upon in India

(2012) 5 SCC 370
Maria Margarida v. Erasmo Jack De Sequeira

Building is "service". 2012 5 SCC 359

Sale of fully developed plots with assured facilities is "service"

a person convicted on charges of corruption should not be allowed to continue in service until his conviction is set aside by appellate court. The High Court in appeal has not stayed

Civil Misc. Writ Petition No. 66949 of 2010  (Allahabad) (2010 ILR 1278)

 

Constitution of India Art. 226-Revision of  Subsistence allowance-petitioner-after  conviction under 7/3 prevention of   corruption Act-during pendency of
appeal-granted bail-unless conviction  set-a-side not entitled for relief claimed. 

 

Held: Para 8  In our opinion, a person convicted on charges of corruption should not be  allowed to continue in service until his conviction is set aside by appellate court. The High Court in appeal has not stayed
the conviction of the petitioner. 

Every Tribunal has got inherent power to recall an order of DD is sufficient cause is shown

 

2012 (2) AWC 1984

Kesarwani Zarda Bhandar v. Subhash Chandra Kesarwani

Service of Process on wife is not good in law

Service of process on wife is not valid service in law under Order 5, Rule 15

2012 (3) ALJ 212 (Kishore Kumar Arora v. Harvindar )

Notice is sufficient if not received due to house locked etc.

Notice to respondent - service of Address respondent managing to have the notices returned with postal remark "Not available in the house" house locked" and "shop closed" respectively- Held, Notice must be deemed to have been served on the respondents


1. State of M. P. Vs. Hiralal and Others, reported in (1996) 7 SCC 523.

2. Uttam Chand and Another Vs. 6th Additional District Judge, Jhanshi and Others, reported in 2000 (18) LCD 1090.

3. Fazal Ahmad Vs. K. N. Jain reported in 2000 (1) Allahabad Rent Cases 423 and 2000 (18) LCD 786

Writ does not lie even against State for specific performance

2004 2 AWC1770

 

Ram Nagar Allottees Association v/s LDA

Charge in Disciplinary Inquiry if admitted need not be proved

2008(3)ALD103(SC), 3(2008)CLT140, [2008(117)FLR377], JT2008(4)SC51, (2008)IILLJ645SC, (2008)4MLJ116(SC), 2008(4)SCALE172, (2008)5SCC569, 2008(3)SLJ424(SC), (2008)2UPLBEC1041

 

Appellants: Chairman and MD V.S.P. and Ors.
Vs.
Respondent: Goparaju Sri Prabhakara Hari Babu

Sub Silentio

Case :WRIT C No. 23970 of 2008

Petitioner :Public Welfare Hospital

Respondent :State Of U.P. Thru' Chief Secy. & Others

Single Judge

 

Impleadment in case of allegation of malafide / malice

136(2007)DLT703, 2007(94)DRJ184

 

Alleged that action taken at the behest of MP, but MP himself not impleaded; allegation of malafide cannot be accepted.

Exorbitant Amount Stamp Duty demand can be challenged in WP

2011 (29) LCD 2109 (SC)

 

Transfer at the instance of MLA

MLA is elected representative of the people, and as such even if transfer is done at his instance, there cannot be any grievance. 2007 (8) SCC 150

Land Acquisition - Urgency in "Residential Purpose" acquisition

Land Acquisition Act, 1894 - Section 17 - The power of urgency by the Government for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception.

 

Ram Dhari Jindal Memorial Trust Vs. Union of India and Others

MARCH 21, 2012

CIVIL APPEAL No. 3813 of 2007 

Candidate who had taken part in the selection process knowing fully well the procedure laid down therein are not entitled to question the same

Anil Kumar, J

2012 (30) LCD 415

Cut off date for eligibility is the last date for filing for application forms

Mohit Singh v. State of UP, 2012 (30) LCD 120

Person against whom malice is alleged should be made party by name

Shyam Baboo v. State of UP, 2012 (30) LCD 404 (All)

Compliance with Rule 3A of Chapter XXII - Public Interest Litigation

Credentials of the Petitioners to be shown and proved - 2012 (1) LCD 394 (following (2010) 3 SCC 402)

It must be stated in the PIL that "the result of the litigation will not lead to any undue loss to any person, body of persons or the State"  - 2012 (1) LCD 666 (but requirement dispensed with as interim measure)


See also MISB 11510 of 2011

Limitation of 59 days condoned

2011 AWC (3) 2745 (SC) - Indian Oil Corp v. Subrata

Stamp Duty Potential value

Agricultural being valued as residential absent declaration under Section 143
2011 (3) AWC 3093 - Sunti Bunti Automobiles (Pankaj Mithal)

public purpose may change one from another

In Union of India v. Jaswant Rai Kochhar reported inMANU/SC/0358/1996 : 1996 (3) SCC 491 land acquired for housing scheme was utilised for commercial purpose i.e. a District Centre. This Court held in that matter that it is will settled law that land sought to be acquired forone public purpose may be used for another public purpose. In State of Maharashtra v. Mahadeo Deoman Rai reported in MANU/SC/0471/1990 : 1990 (3) SCC 579 yet another Bench of three Judges had held that requirement of public purpose may change from time to time but the change will not vitiate the acquisition proceeding.

 

Also: JT2011(12)SC298