Illness Slip in Allahabad High Court

 HIGH COURT OF JUDICATURE AT ALLAHABAD  A.F.R. COURT NO. 4
CIVIL MISC. WRIT PETITION NO. 24557 OF 2007 Committee of Management & Anr. Versus State of Uttar Pradesh & Ors.)

03.03.2009

 

Short Counter Affidavits

1. n Misri Lal v. District Basic Education Officer reported in 2002 (4) AWC 2625, this Hon'ble Court had taken the following view with respect to filing of the short counter affidavits:

 "7. Respondent Nos. 1 and 2 claim to have filed a short counter-affidavit instead of filing regular parawise reply to the counter-affidavit. This practice is to be deprecated. There is no procedure/provision contemplating filing of short counter-affidavit or in piece-meal. This is not a healthy practice but developed in the recent past and used many times to delay the hearing of the case must be stopped."

Enquiry - how to be conduct, date, time, place, evidence, cross-examination

Citation / Name of        Parties	Relevant Paragraph	Legal Proposition
(2009) 2 SCC 570, Roop Singh Negi v. Punjab National Bank (Supreme Court)	Paras 14, 15, 17, 23	Each of the charges need to be independently and separately proved by witnesses, and alleged admission by the delinquent does not absolve the officer from proving charges.
(2006) 5 SCC 88 (MV Bijlani v. Union of India) Supreme Court	Paras 18, 29, 21, 22, 23, 24, 25, 26, 27, 28	Order based on improper enquiry report which is vitiated due to not following principles of natural justice is not sustainable.
(1995) 6 SCC 749 (BC Chaturvedi v. Union of  India) (Supreme Court)	Paras 12, 18 and 25	Under power of judicial review, the court is bound to examine whether principles of natural justice including the basic rules of evidence are followed, and whether the punishment imposed is disproportionate.
(1987) 4 SCC 611 (Ranjit Thakur v. Union of Indian) (Supreme Court)	Paras 25, 27, 28	Disproportionate punishment imposed by the authority liable to be interfered with by the court.
AIR 1983 SC 454 (Bhagat Ram v. State of Himachal  Pradesh) (Supreme Court)	Paras 10 and 15	Disproportionate penalty is liable to be set aside as demanded by fair play and justice, and it is within the domain of the court to provide for a minor penalty.
(2005) 1 UPLBEC 276  ( Atul Kumar v. Up Export Corporation)	Paras 11, 12, 13	Order of dismissal based on enquiry where witnesses were not examined and there were other serious breaches, the dismissal order is liable to be set aside and reinstatement with back wages
2004 1 AWC  384 (All) Raj Kishore Yadav v. UP Public Service Tribunal)	Paras 14 & 15	No pecuniary gain alleged or shown and proved by the enquiry officer, and no reasons given for awarding major punishment. Punishment order was held to        be not sustainable.
2004 (22) LCD 770 (All) Ambika Prasad Srivastava v. State Public Services Tribunal Lucknow	Paras 8 & 10	Enquiry report based on simply the reply submitted by the Petitioner, and the petitioner was not informed about the date, time and place of holding enquiry, and as such the inquiry report is vitiated If the case has been pending for a long time, it is not proper to remit for fresh inquiry.
2004 (22) LCD 1 (All) (Avadesh Kumar v. State of UP)	Paras 5 & 6	Where inquiry is held without intimating date, time and place of inquiry, the same is liable to be set aside.
2003 (21) LCD 610 (All) (LB) Radhey Kant Khare v. UP Cooperative Sugar Factories	Paras 7 to 15, 20, 21, 23, 24, 27	After a charge sheet is given to the employee an oral enquiry is a must whether the employee requests or not, and date, time, place of inquiry must be fixed. The delinquent must be allowed to cross examine those persons whose testimony        is relied against him.
2002 (20) LCD 610 (All) (Sri PC Chaturvedi v. UP State Textile Corporation)	Paragraph 40	Due to non-payment of subsistence allowance, the Enquiry, the punishment of dismissal or the petitioner and dismissal of his appeal, are all void.
2001 (19) LCD 60 (All) (LB) (Dr. Arun Kumar v. State of UP)	Paras 9, 11, 12	Enquiry officer cannot rely on evidence which was prepared/written by him.
1999 (17) LCD 419 (Dr. Anmesh Kumar & Others v. Director, Indian Veterinary Research Institute, Izatnagar, Bareilly & ors)	Paragraph  32	An order for which reasons have not been given is liable to be set aside.
2011 (5) ESC 3643 (All) Kishori Lal v. Chairman Board of Directors, Aligarh, Gramin Bank, Aligarh)	paras 17-20, 27, 29. Paras 33, 39, 49, 50, 51 Paras 56, 58, 62, 63 Paragraph 11	A vague averment in the counter affidavit that petitioner was given full opportunity to defend is not sufficient, and particulars ought to be provided that how principles of natural justice have been complied with. Lack of good behavior does not itself constitute 'misconduct' and in the facts accepting money from neighbours  but causing no loss to the bank held is not misconduct, for which disproportionate punishment should not be imposed. When no loss is caused to the bank, and for a petty amount, disproportionate punishment cannot be imposed. Plea of alternative remedy cannot be taken at such belated stage, when pleadings have been exchanged and the matter has been pending for years.
2012 (1) ADJ 183 (DB), Allahabad High Court (BM Nigam v. Chairman, State Bank of India)	Paras 68, 69	When charges are not proved  the inquiry report does not stand and is liable to be quashed. No loss is caused to the bank and misappropriation has not been proved, no disproportionate punishment can be imposed.
(1991) 1 SCC Union of India v. Ramzan Khan	Paragraph 18	A copy of the enquiry report has to be provided to the delinquent, and a failure to do so vitiates the disciplinary proceedings.

   

Come to court with clean hands - disclosures in a case

This Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Distillery Co. Ltd. MANU/SC/0022/1976 : (1977) 2 SCC 431, Vijay Kumar Kathuria v. State of Haryana MANU/SC/0054/1983 : (1983) 3 SCC 333, Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. etc.MANU/SC/0029/1983 : (1983) 4 SCC 575, G. Narayanaswamy Reddy (dead) by LRs. and Anr. v. Government of Karnataka and Anr. MANU/SC/0386/1991 : (1991) 3 SCC 261,S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by LRs. and Ors.MANU/SC/0192/1994 : (1994) 1 SCC 1, Agricultural and Processed Food Products v. Oswal Agro Furane and Ors. MANU/SC/1150/1996 : (1996) 4 SCC 297, Union of India and Ors. v. Muneesh Suneja (2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India MANU/SC/3355/2007 : (2007) 8 SCC 449, Sunil Poddar and Ors. v. Union Bank of India MANU/SC/0322/2008 : (2008) 2 SCC 326, K.D. Sharma v. Steel Authority of India Ltd. and Ors. MANU/SC/3371/2008 : (2008) 12 SCC 481, G. Jayshree and Ors. v. Bhagwandas S. Patel and Ors. MANU/SC/8451/2008 : (2009) 3 SCC 141 and C.A. No. 5239/2002 - Dalip Singh v. State of U.P. and Ors., decided on 3.12.2009.

New Argument on Fact is not permitted in Appeal

This new argument therefore on a question of fact cannot be permitted to be taken more so in the absence of any evidence having been brought on record in view of the law laid down by the Apex Court in the case of Bharat Singh and others v. State of Haryana and others, MANU/SC/0047/1988 : AIR 1988 SC 2181

When foundation goes edifice falls

Chairman Cum Managing Director, Coal India Limited v. Ananta Saha, (2011) 5 SCC 142

Sublato fundamento cadit opus

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ITC - Entry Tax matter

ITC Limited v. State of UP, 2012 1 ADJ 607

Upheld the validity of entry tax act 2007

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Non execution of sale deed despite allotment

Ganesh Prasad v. LDA Lucknow, 2012 (1) ADJ. 247 (DB) (LB)

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Residential - commercial, town plan cannot be altered, no banking activity in residential area

2012 2 SCC 232
RK Mittal v. State of UP

Master plan has force of law, it has to be amended by statutory procedure and not be exec order.

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Termination of Lease: 106 of TP Act

Case 1 (Supreme Court - 2009) : (2009)15SCC693

para 19:  A simple tenancy can be terminated by service of notice under Section 106 of the Transfer of Property Act. Once a valid notice is served, the tenant becomes trespasser.

 

Case 2 ( Allahabad HC - single judge) : 2010 1 AWC742

para 9. It is further found from the finding recorded by both the authorities that a finding of fact has been recorded regarding service of notice. The contents of notice may not be very happily worded but the gist and meaning of the notice are very clear which terminates the tenancy of the petitioner immediately on the date of receipt of notice and to vacate the premises within 30 days. In my opinion this is the only requirement in law for giving notice under Section 106 of the Transfer of Property Act. The notice cannot be sought to be invalid unless and until it is proved by the person concerned that there is no mention in the notice that he is in arrears for more than 3 months or there is no whisper in the notice regarding termination of the tenancy immediately after the expiry of 30 days from the date of receipt of the notice. A clear finding has been recorded by the Judge, Small Causes Court as well as by the revisional authority. In the notice, it has clearly been mentioned that within a period of 30 days, he has to vacate the premises.

 

   Case 3 (Sup Ct - 7 judges) AIR1979SC1745,

para 7. It is this clause which brings into operation the requirement of Section 106 of the Transfer of Property Act. Without adverting to the effect and the details of waiver of forfeiture, waiver of notice to quit, relief against forfeiture for non-payment of rent etc. as provided for in Sections 112 to 114A of the Transfer of Property Act, suffice it to say that under the said Act no ground of eviction of a tenant has to be made out once a contractual tenancy is put to an end by service of a valid notice under Section 106 of the Transfer of Property Act. Until and unless the lease is determined, the lessee is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him.

 

Police regulation doesn't override CrPC

(2011) 9 SCC 569

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Holding over - Lease

2010 28 LCD 1790

Giriraj Prasad v. Shyam Sundar Agarwal

No notice of termination necessary for fixed term tenancy

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Compulsory retirement is not a punishment

2011 10 SCC 1-N

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Justice hurried is justice buried

2012 2 SCC 584, para 23

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Land Acquisition

Use of emergency power prohibited

2012 2 SCC 25
2012 2 SCC 327

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Promissory Estoppel and legitimate expectation

AIR 2012 P n H 30

Promises once made on which parties act cannot be broken. Commercial investment.
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Right to practise of an advocate

First case since notification dated 15.6.2011

After notification under Section 30 of Advocates Act, all the lawyers have acquired, a right to practice before all courts/tribunals and such other forum of India as a matter of right.

AIR 2012 Ker 23
N P Pushpangadan v. Federal Bank

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Application for Recall and Appeal can be filed and maintained at the same time

19. In A. K. P. Haridas v. V. A. Madhavi Amma and others, MANU/KE/0076/1988 : AIR 1988 Ker 304, the Court observed that the remedy under Order IX, Rule 13 and that by way of appeal are not inconsistent, or mutually exclusive. There is no bar in resorting to both the remedies simultaneously or any of them alone. The relevant paragraph reads as under :

There is no bar in resorting to both the remedies simultaneously or any of them alone. Only thing is that when both remedies are attempted and one succeeds the other becomes infructuous since the object and effect of both is the same. Availability of the remedy by way of appeal is no bar to an application under Order IX. Rule 13, if such a remedy is also available to the party. For example when the defendant is set ex parte under Order IX. Rule 6 and an ex parte decree passed, though that decree is appealable, an application under Order IX, Rule 13 also will lie. The real question for consideration is only whether an application under Order IX, Rule 13 will lie.

 

20. Thus, it is imminently clear that a decree passed for defendant's default in filing written statement is an ex parte decree duly comes within the ambit of Order IX, Rule 13 and as such an application to set aside underOrder IX, Rule 13 is maintainable.

Held in :

MANU/UP/3612/2011

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

W.P. No. 510 (M/S) of 2006

Decided On: 04.02.2011

Appellants: Vidya Sagar and others
Vs.
Respondent: Addl. District Judge, Court No. 2, Lucknow and others

Consequential order challenged, main order not challenged - writ not sustainable.

Civ Misc WP 51649 of 2011
2012 1 ALJ NOC 55 (All)

AIR 2003 SC 1216
AIR 2008 SC 1272

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When the foundation goes, the edifice falls

2005 SCC 477
Competent authority v. Barangore Jute Factory

Also see Hamid Khan 2008 8 SCC 730

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