//
archives

Allahabad

This tag is associated with 24 posts

Dying declaration – if not died can be considered as sec.164 statement can be used for contradiction etc., under sec.157 ,sec.155- provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness – after regain, her full sec.161 statement was recorded – Apex court held no wrong = Veer Singh & Ors. .. Appellant(s) versus State of U.P. .. Respondent(s) = Published in / cited in / Reported in judis.nic.in/supremecourt/filename=41065

Dying declaration – if not died can be considered as sec.164 statement can be used for     contradiction etc., under sec.157 ,sec.155– provided – a dying declaration – cum – sec.164 statement can not be called as full statement of witness  – after regain, her full sec.161 statement was recorded – Apex court held no wrong … Continue reading

Sec. 90 and Sec. 376 of I.P.C. = Consent obtained by playing fraud to marry her and committed sexual intercourse and later refused to marry her amounts to Rape as her consent was obtained by playing fraud on her = State of U.P. … Appellant VS. Naushad … Respondent = Published in http://courtnic.nic.in/supremecourt/qrydisp.asp

Sec. 90 and Sec. 376 of I.P.C. = Consent obtained by playing fraud to marry her and committed sexual intercourse and later refused to marry her amounts to Rape as her consent was obtained by playing fraud on her =    Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the … Continue reading

Service matter = U.P. Power Corporation Ltd. and another … Appellants Versus Virendra Lal (Dead) through L.Rs. …Respondents= published in judis.nic.in/supremecourt/filename=40846

Since the penalty was imposed by Board itself which is an appellant authority, it’s orders are not correct as per the regulations of Electricity Act as the employee was deprived of his appeal right    ; = whereby the  Division Bench has affirmed the judgment dated 23.9.2010 passed by the  State  Public Service Tribunal, Lucknow, (for short “the tribunal”) … Continue reading

Contempt of court arose when – To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts.

published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40722  REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION CONTEMPT PETITION NO.3 OF 2012 IN CONTEMPT PETITION NO.6 & 7 OF 2009 IN WRIT PETITION (CIVIL) NO. 503 of 2007 Noor Saba … Petitioner (s) Versus Anoop Mishra & Anr. … Respondent (s) J U D G M E N T … Continue reading

Service matter = Reinstatement with compensation but not with back wages = After considering the evidence adduced before the Tribunal, it had come to the conclusion that the termination of the respondent was not legal and therefore, by an award dated 30th June, 2001, the order terminating service of the respondent dated 28th February, 1998, had been quashed and it was directed that the respondent should be reinstated in service as a driver with continuity of service and with arrears of salary for the period during which the respondent-workman was not permitted to perform his duties.= However, we feel that the respondent should not have been awarded full back wages. 10. Instead of awarding back wages, in view of the facts of the case, it would be just and proper to award, in all a sum of Rs.5 lacs by way of compensation to the respondent-workman. It had been submitted that the appellant-Corporation had already paid more than Rs.3,60,000/- to the respondent-workman and if it is so, the amount so paid shall be adjusted while paying the compensation of Rs.5 lacs. Thus, we direct that by way of compensation, in all Rs.5 lacs should be given to the respondent-workman in lieu of back wages. The said amount shall be paid to the workman within four weeks from today. 11. If the respondent-workman has not been reinstated till today, the appellant-Corporation shall reinstate him within four weeks from today. 12. In the above circumstances, the impugned judgment delivered by the High Court is modified to the above extent. The appeal is allowed to the extent stated hereinabove. No order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40667 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6968 OF 2013 (Arising out of SLP (C) No. 22730 of 2013)     U.P. State Road Transport Corporation …..Appellant   Versus C.P. Goswami …..Respondent     J U D G M E N T 1 ANIL R. DAVE, J. … Continue reading

A contract for sale of shares is not valid as per sec.13, and 16 of Securities Contracts ( Regulation) Act and as such transfer and registration of shares in the name of purchaser is prohibited and can not be enforced = Armed with the decree, Bhagwati on 12th December, 1994 lodged the transfer deeds in respect of 14120 shares with Peerless for their transfer. Peerless, however, did not accede to the prayer of Bhagwati and by its letter dated 8th February, 1995 refused to register the said shares, inter alia, on the ground that the said transfer of shares by Tuhin in favour of Bhagwati was in violation of the provisions of Securities Contracts (Regulation) Act, 1956; hereinafter to be referred to as ‘the Regulation Act’. According to Peerless, the contract for sale of shares was not a spot delivery contract, signatures of Tuhin differed from the signatures on the record of Peerless and further the stamps affixed on the instruments of transfer had not been cancelled. Bhagwati re-lodged the shares for transfer on 14th February, 1995 with Peerless but again Peerless did not register those shares in the name of Bhagwati.- Bhagwati, aggrieved by that, approached the Company Law Board, Eastern Region by filing an application under Section 111 of the Companies Act, 1956 hereinafter to be referred to as ’the Act’ and the Company Law Board by its judgment and order dated 25th November, 1998 dismissed the said application inter alia holding that transfer of shares in favour of Bhagwati was against the provisions of Sections 13 and 16 of the Regulation Act and as such, illegal. In the opinion of the Company Law Board Peerless rightly refused registration of transfer. While doing so, the Company Law Board further observed that the shares of a public limited company which are not registered in the Stock Exchange also come under the purview of Regulation Act.= the appellant pleaded that the contract in question is a spot delivery contract and, therefore, does not come within the mischief of Section 16 of the Regulation Act.= “16. Power to prohibit contracts in certain cases.- (1) If the Central Government is of opinion that it is necessary to prevent undesirable speculation in specified securities in any State or area, it may, by notification in the Official Gazette, declare that no person in the State or area specified in the notification shall, save with the permission of the Central Government, enter into any contract for the sale or purchase of any security specified in the notification except to the extent and in the manner, if any, specified therein. (2) All contracts in contravention of the provisions of sub- section (1) entered into after the date of the notification issued thereunder shall be illegal.” – According to the definition, a contract providing for actual delivery of securities and the payment of price thereof either on the same day as the date of contract or on the next day means a spot delivery contract. When we consider the facts of the present case bearing in mind the definition aforesaid, we find that the contract in question is not a spot delivery contract. True it is that by letter dated 30th of October, 1987 written by Tuhin to Bhagwati, he had stated that the formal agreement had been executed between them on 10th November, 1986 and as per the agreement he is transferring the entire 3530 shares of Peerless purchased from the loan amount and the transfer is in its repayment. However, the agreement dated 21st November, 1994 between Bhagwati and Tuhin which formed part of the compromise decree provides that the sale of shares took place on 30th October, 1987 and in consideration thereof Bhagwati paid a sum of Rs. 10 lakhs on 21st November, 1994 and further the dividend on the entire shares up to the accounting year 1989-90 amounting to Rs.8,64,850 to be retained by Tuhin. In the face of it, the plea of Bhagwati that the payment of Rs. 10 lakh was made to buy peace, is not fit to be accepted and, in fact, that forms part of the consideration for the sale of shares. Once we take this view, the plea of the appellant that it is a spot delivery contract is fit to be rejected. We agree with the reasoning and conclusion of the Company Law Board and the High Court on this issue. Both the contentions of the appellant having no substance, we do not find any merit in this appeal and it is dismissed accordingly but without any order as to costs.

 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40558      REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7445 OF 2004 BHAGWATI DEVELOPERS PVT. LTD. APPELLANT VERSUS PEERLESS GENERAL FINANCE & INVESTMENT COMPANY LTD AND ANR. RESPONDENTS JUDGMENT CHANDRAMAULI KR. PRASAD,J. Appellant aggrieved by the judgment and order dated 30th July, 2003 passed in ACO No.76 … Continue reading

The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995= Mental disorders – benefits under disability act = whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.=Although, the Courts are extremely loath to interfere with the opinion of the experts, there is nothing like exclusion of judicial review of the decision taken on the basis of such opinion. What needs to be emphasized is that the opinion of the experts deserves respect and not worship and the Courts and other judicial / quasi-judicial forums entrusted with the task of deciding the disputes relating to premature release / discharge from the Army cannot, in each and every case, refuse to examine the record of the Medical Board for determining whether or not the conclusion reached by it is legally sustainable.= “You have been diagnosed as a case of SCHIZOPHRENIC REACTION and not LUNATIC. As such your request to produce you before a medical board to examine you whether you are Lunatic or free from LUNACY does not arise. Therefore no resurvey medical board can be held in your case.”= His case was considered on 14.11.1977 by the Invaliding Medical Board held at Military Hospital, Meerut and on its recommendations, he was discharged from service. His claim for disability pension was rejected by Principal Controller of Defence Accounts (Pension), Allahabad on the ground that the disease, i.e., Schizophrenic Reaction, which was the cause of his discharge was not attributable to the military service.= Unfortunately, the Tribunal did not even bother to look into the contents of the certificate issued by the Invalidating Medical Board and mechanically observed that it cannot sit in appeal over the opinion of the Medical Board. If the learned members of the Tribunal had taken pains to study the standard medical dictionaries and medical literature like “The Theory and Practice of Psychiatry” by F.C. Redlich and Daniel X. Freedman, and Modi’s Medical Jurisprudence and Toxicology, then they would have definitely found that the observation made by Dr. Lalitha Rao was substantially incompatible with the existing literature on the subject and the conclusion recorded by the Invaliding Medical Board that it was a case of Schizophrenic Reaction was not well founded and required a review in the context of the observation made by Dr. Lalitha Rao herself that with the treatment the appellant had improved. In our considered view, having regard to the peculiar facts of this case, the Tribunal should have ordered constitution of Review Medical Board for re-examination of the appellant. 18. In Controller of Defence Accounts (Pension) v. S. Balachandran Nair (2005) 13 SCC 128 on which reliance has been placed by the Tribunal, this Court referred to Regulations 173 and 423 of the Pension Regulations and held that the definite opinion formed by the Medical Board that the disease suffered by the respondent was constitutional and was not attributable to Military Service was binding and the High Court was not justified in directing payment of disability pension to the respondent. The same view was reiterated in Ministry of Defence v. A.V. Damodaran (2009) 9 SCC 140. However, in neither of those cases, this Court was called upon to consider a situation where the Medical Board had entirely relied upon an inchoate opinion expressed by the Psychiatrist and no effort was made to consider the improvement made in the degree of illness after the treatment. 19. As a corollary to the above discussion, we hold that the impugned order as also orders dated 14.7.2011 and 16.9.2011 passed by the Tribunal are legally unsustainable. In the result, the appeal is allowed. The orders passed by the Tribunal are set aside and the respondents are directed to refer the case to Review Medical Board for reassessing the medical condition of the appellant and find out whether at the time of discharge from service he was suffering from a disease which made him unfit to continue in service and whether he would be entitled to disability pension.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40505 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5922 OF 2012 Veer Pal Singh …Appellant versus Secretary, Ministry of Defence …Respondent J U D G M E N T G. S. Singhvi, J. 1. This appeal is directed against order dated 19.12.2011 of the Armed Forces Tribunal, Lucknow … Continue reading

Service matter = (i) Whether two different age of superannuation of 58 and 60 years can be prescribed for the employees similarly situated, including members of the same service, solely on the basis of their source of entry in the service. (ii) Whether ‘the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005’ fixing two different age of superannuation for similarly situated employees of Jal Nigam are discriminatory and ultra vires under Article 14 of the Constitution of India.= ‘no pay no work’ is not applicable to the employees who were guided by specific rules like Leave Rules etc. relating to absence from duty. Such principle can be applied to only those employees who were not guided by any specific rule relating to absence from duty. If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of ‘no pay no work’ shall not be applicable to such employee. = Regulation 31 shall be applicable and the age of superannuation of employees of the Nigam shall be 60 years; we are of the view that following consequential and pecuniary benefits should be allowed to different sets of employees who were ordered to retire at the age of 58 years: (a) The employees including respondents who moved before a court of law irrespective of fact whether interim order was passed in their favour or not, shall be entitled for full salary up to the age of 60 years. The arrears of salary shall be paid to them after adjusting the amount if any paid. (b) The employees, who never moved before any court of law and had to retire on attaining the age of superannuation, they shall not be entitled for arrears of salary. However, in view of Regulation 31 they will deem to have continued in service up to the age of 60 years. In their case, the appellants shall treat the age of superannuation at 60 years, fix the pay accordingly and re-fix the retirement benefits like pension, gratuity etc. On such calculation, they shall be entitled for arrears of retirement benefits after adjusting the amount already paid. (c) The arrears of salary and arrears of retirement benefits should be paid to such employees within four months from the date of receipt of copy of this judgment. The judgment passed by the Division Bench of the Allahabad High Court, Lucknow Bench dated 29th July, 2010 and other impugned judgments stand modified to the extent above.

published in http://judis.nic.in/supremecourt/filename=40490   Page 1     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5527 OF 2012 (arising out of SLP (c) No. 31279 of 2010) STATE OF UTTAR PRADESH         … APPELLANT Versus DAYANAND CHAKRAWARTY & ORS.              … RESPONDENTS With C.A.No.5528   of   2012  (Arising   Out   of   SLP(C)   No.35579   of 2010) C.A.No.5617­5659   of   2012  (Arising   Out   of   SLP(C)   No.5218­ 5260 of 2011) C.A.No.   5529   of   … Continue reading

the Swadeshi Act “27. Penalties Any person who.:- (a) having in his possession, custody or control any property forming part of any of the textile undertaking wrongfully withholds such property from the National Textile Corporation; or (b) wrongfully obtains possession of, or retains any property forming part of, any of the textile undertaking; or shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to ten thousand rupees. shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to ten thousand rupees.”- “……that a complaint under Section 27 of Act 30 of 1986 could only have been filed by the petitioner if the title of the property in dispute was clearly in their favour. Both the Courts below have correctly assessed the facts and circumstances of the case and have rightly come to the conclusion that in the absence of having any clear title in their favour the complaint under Section 27 was misconceived and, therefore, rightly dismissed.”

published in http://judis.nic.in/supremecourt/filename=40480 Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4818 OF 2013 (Arising out of SLP (Civil) No. 4706 of 2006) National Textile Corpn. (UP) Ltd. …. Appellant(s) Versus Dr. Raja Ram Jaipuria & Ors. …. Respondent(s) WITH CIVIL APPEAL NO. 4819 OF 2013 (Arising out of SLP … Continue reading

sec.319 Cr.P.C. = no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard. 11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401(2) of the Code of Criminal Procedure is illegal. 12. In the result, this application is allowed and the impugned order dated 23.6.2006 s set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in accordance with law.” 33. Since the reasoning discussed hereinabove would be suffice to dispose of the present appeal, we do not wish to go into the merits of the case with regard to the scope of the provisions of Section 319 of Cr.P.C.= We, therefore, allow this appeal, set aside the order of the High Court and remand the matter back to the High Court to consider the matter afresh after giving an opportunity of hearing to the present appellants.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40465 Page 1 ‘REPORTABLE’ IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 814 OF 2013 (Arising out of SLP (CRL.) No.1619 of 2010) Mohit alias Sonu and Another …..Appellants Versus State of U.P. and Another ….Respondents J U D G M E N T M.Y. EQBAL, J. Leave granted. 2. This … Continue reading

Blog Stats

  • 2,859,662 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,903 other followers

Follow advocatemmmohan on WordPress.com