//
archives

Punjab and Haryana High Court

This tag is associated with 40 posts

Haryana Apartment Ownership Act,1983 (for short “the Apartment Act”) – Development Act – Declarations in respect of “common areas and facilities” – the owners cannot claim any undivided interest over those facilities except the right of user – they cannot claim an undivided interest or right of management over them.- agreements executed between the colonizer and the DTCP vis-à-vis the various provisions of the Apartment Act, the statutory declaration made by the colonizer and the Sale Deeds executed between the parties – Apex court set aside the judgment of the High Court and dismiss the writ petition filed before the High Court. The appeal is, therefore allowed. = DLF Limited ….. Appellant Versus Manmohan Lowe and others …..Respondents =published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41058

Haryana Apartment  Ownership  Act,1983 (for short “the Apartment Act”) –  Development Act – Declarations in respect of “common areas and  facilities” – the owners cannot claim any  undivided interest over those facilities except  the  right  of  user – they  cannot claim an undivided interest or right of management over them.- agreements executed between the colonizer and the DTCP  vis-à-vis the  various  provisions … Continue reading

Land Acquisition Act = When the land is in developed area , deduction of 10 % is appropriate but the deduction of 1/3rd in market value is harsh =deduction of 1/3rd value of the land would be very harsh on the appellants because the appellants would be getting substantially less compensation on account of the said deduction. It was also submitted that the High Court had taken note of the fact that the land in question was very much within the developed area. If the land was within the developed area, the High Court should not have deducted 1/3rd of the value of the land in question.= Deduction to the extent of 1/3rd of the value of the land is definitely harsh even as per the observations made by the High Court as the land in question is very much in the developed area. The area has been developed by the HUDA and therefore, the deduction of 1/3rd of the value of the land is not justified. Upon considering all relevant facts, in our opinion, it would be absolutely just if 10% value of the land is deducted instead of 1/3rd because the land is forming part of a well developed area.= The market value of the land in question, as determined by the High Court, is Rs. 11.15 lacs per acre and instead of taking 1/3rd, we direct that 10% of the said value shall be deducted. The claimants shall be entitled to other statutory benefits like solatium, interest etc. on the enhanced compensation.

 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40661 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6958 OF 2013 (Arising out of SLP (C) No. 24357 of 2010) Indraj Singh (Dead) …..Appellants through LRs. & Ors. Versus State of Haryana & Anr. …..Respondents With CIVIL APPEAL NO. 6959 OF 2013 (Arising out of SLP (C) … Continue reading

Land Acquisition Actappellant- sec.4 notification, sec.6 and award can be challenged before taking possession with in reasonable time – Notice at locality is mandatory – no company and it’s site can be acquired for industrial purpose = Company itself is running an industry on the date of the notification, we are of the view that there is no justification in acquiring a running industrial unit for industrialization of the area.- In view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non- publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such person “owner or occupier” is entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to be quashed.= Under these circumstances, we set aside the impugned order of the High Court dated 08.07.2008 and quash the land acquisition proceedings insofar as the appellant-Company is concerned.

 published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40657       REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 2 CIVIL APPEAL NO. 6792 OF 2013 3 (Arising out of SLP (C) No. 19869 of 2008)   M/s V.K.M. Kattha Industries Pvt. Ltd. …. Appellant(s) Versus State of Haryana & Ors. …. Respondent(s)     J U … Continue reading

Service Matter – Whether the petitioners, whose names were included in the select list prepared for recruitment to Punjab Civil Service (Judicial Branch) are entitled to be appointed against the posts which became available due to the resignation of two of the appointees and the unfilled posts of reserved categories is the question which arises for consideration in these petitions filed under Article 32 of the Constitution.= once the appointments are made against the advertised posts, the select list gets exhausted and those who are placed below the last appointee cannot claim appointment against the posts which subsequently become available. = “At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents.” In view of the above noted legal position, the decision taken by the High Court not to enter the petitioners name in the register to facilitate their appointment against the de-reserved posts or the posts vacated by the general category candidates cannot be faulted, more so because the State Government had already approved fresh recruitment and the Commission issued advertisement for 71 posts including 6 reserved category posts. In the result, the writ petitions are dismissed.

published in http://judis.nic.in/supremecourt/filename=40643 Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 73 OF 2013 Raj Rishi Mehra and others …Petitioners versus State of Punjab and another …Respondents WITH WRIT PETITION (CIVIL) NO. 77 OF 2013 O R D E R Whether the petitioners, whose names were included in the select … Continue reading

Appointment of Special police officers from ex-service men = whether this court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this court in Umadevi’s case. = The appellants herein assert that all the appellants are ex- servicemen and registered with the employment exchange. They were recruited as Special Police Officers.[2] = i) That it will not be possible to provide police guard to banks unless the Banks were willing to pay for the same and additional force could be arranged on that basis, it was decided that police guards should be requisitioned by the Banks for their biggest branches located at the Distt. and Sub Divisional towns. They should place the requisition with the Distt. SSPs endorsing a copy of IG CID. In the requisition, they should clearly state that the costs of guard would be met by them. It will then be for the police department to get additional force sanctioned. This task should be done on a top priority. In the meantime depending upon the urgency of the need of any particular branch, police Deptt. may provide from police strength for its protection. ii) For all other branches guards will be provided by Distt. SSP after selecting suitable ex-servicemen or other able bodied persons who will be appointed as Special Police Officer in terms of Section 17 of the Police Act. Preference may be given to persons who may already be in possession of licence weapons. All persons appointed as SPO for this purpose will be given a brief training for about 7 days in the Police Lines in the handling of weapons taking suitable position for protection of branches. These SPOs will work under the discipline and control and as per Police Act, they will have the same powers, privileges and protection and shall be amenable to same penalty as an ordinary police personnel.”= The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the Legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits at par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is – the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi’s judgment cannot become a licence for exploitation by the State and its instrumentalities. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside. We direct the State of Punjab to regularise the services of the appellants by creating necessary posts within a period of three months from today. Upon such regularisation, the appellants would be entitled to all the benefits of services attached to the post which are similar in nature already in the cadre of the police services of the State. We are of the opinion that the appellants are entitled to the costs throughout. In the circumstances, we quantify the costs to Rs.10,000/- to be paid to each of the appellants.

published in       http://judis.nic.in/supremecourt/imgst.aspx?filename=40625   Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1059 OF 2005 Nihal Singh & Others …Appellants Versus State of Punjab & Others …Respondents WITH CIVIL APPEAL NO. 6315 OF 2013 [Arising out of SLP (Civil) No. 12448 of 2009) Bhupinder Singh & Others …Appellants Versus … Continue reading

Dying Declaration =It may not be an absolute proposition of law that a dying declaration should be recorded by a Magistrate There is nothing on record to suggest that Dr. Rajinder Rai (PW- 4) is an unreliable witness. To the contrary, he is a natural witness and his testimony has not been shaken during a long cross examination. The theory of tutoring is also ruled out in the present case as the accused persons only were present with the deceased during that time and none of the family members of the deceased were present when the dying declaration was recorded by the Doctor. The husband (appellant no.1) Manoj has also affixed his signature on the MLR on which the dying declaration was recorded by the Doctor. The evidence of PW-4 is trustworthy, cogent and reliable. What we find in the present case is that the dying declaration (Ext.PF) which was recorded by Dr.Rajinder Rai (PW-4) was also signed by Manoj (appellant no.1) which indicates that appellant No.1 was present when statement was recorded. Nothing on the record to suggest that any of the relation of the deceased was present to influence Dr. Rajinder Rai (PW-4). The law is well settled that if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. Such view was taken by this Court in Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 wherein this Court held: the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration. In the instant case, the evidence of PW 5, the doctor very clearly shows that the deceased was conscious and was medically in a fit state to make a statement. It is because of the fact that a Judicial Magistrate was not available at that point of time, he was requested to record the statement, which he did. His evidence in regard to the state of mind or the physical condition of the deceased to make such a declaration has not been challenged in the cross- examination. That being so, it should be held that the deceased was in a fit state of mind to make a declaration as held by the courts below. The next question for our consideration is whether this statement is voluntary and truthful. It is not the case of the defence that when she made the statement either she was surrounded by any of her close relatives who could have prompted her to make an incorrect or false statement. In the absence of the same so far as the voluntariness of the statement is concerned, there can be no doubt because the deceased was free from external influence or pressure. So far as the truthfulness of the statement is concerned, the doctor (PW 5) has stated that she has made the said statement which, as noted above, is not challenged in the cross-examination. The deceased in her brief statement has, in clear terms, stated that because of the quarrel between her and the accused, the accused had poured kerosene and set her on fire which, in our opinion, cannot be doubted………”

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40535 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1853 OF 2012 MANOJ & ORS. …APPELLANTS Versus STATE OF HARYANA …RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. The appellants in this case were found guilty of offence punishable under Sections 498-A and 304-B Indian … Continue reading

Mistake on the face of record = The Trial Court had dismissed the suit by invoking its powers under Section 35-B of the Code of Civil Procedure, 1908 (‘the Code’ for short) for non-payment of costs. Being aggrieved by the said order of the learned Trial Judge, the plaintiffs/appellants had filed the Civil Revision Petition Nos.6838 and 6840 of 2010. While disposing of the the aforesaid Civil Revision Petitions, the High Court has observed that the suit filed by the plaintiffs/appellants is not maintainable, based on the claim made that they are the owners of the property on the basis of adverse possession.= The Trial Court had dismissed the suit by invoking its powers under Section 35-B of the Code of Civil Procedure, 1908 (‘the Code’ for short) for non-payment of costs. Being aggrieved by the said order of the learned Trial Judge, the plaintiffs/appellants had filed the Civil Revision Petition Nos.6838 and 6840 of 2010. While disposing of the the aforesaid Civil Revision Petitions, the High Court has observed that the suit filed by the plaintiffs/appellants is not maintainable, based on the claim made that they are the owners of the property on the basis of adverse possession. In our view, while deciding the Civil Revision Petitions, the High Court should have concentrated primarily on the ground on which the trial Court had dismissed the suit of the plaintiffs/appellants. There was no reason for the High Court to have observed in its order that the suit itself was not maintainable before the Trial Court. In that view of the matter, we cannot sustain the impugned judgments and orders passed by the High Court. Therefore, while disposing of these appeals, we remand the matters to the High Court for fresh disposal in accordance with law, keeping in view the aforesaid observations made by us in the order. No costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40550 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 5339-5340 OF 2013 (@ SPECIAL LEAVE PETITION (C)NOS.25656-25657 OF 2012) JHAU LAL & ANR. … APPELLANTS VERSUS MOHAN LAL & ORS. … RESPONDENTS O R D E R 1. Leave granted. 2. These appeals are directed against the judgments and orders … Continue reading

Service matter = in case the Disciplinary Authority disagrees with the findings recorded by the Enquiry Officer, he must record reasons for the dis-agreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. = in Kunj Behari Misra (supra), observing that it was a case where the disciplinary authority differed from the view of the Inquiry Officer. “In that context, it was held that denial of opportunity of hearing was per se violative of the principles of natural justice.” 11. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes the prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL (supra).= The learned Single Judge has concluded the case observing as under: “The whole process that resulted in dismissal of the petitioner is flawed from his inception and the order of dismissal cannot be sustained. I am examining this case after nearly 23 years after its institution and the petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work.”= As the case is squarely covered by the judgment of this court in Kunj Behari Misra (supra), we do not see any reason to approve the impugned judgment rendered by the Division Bench. Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs.

  published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40533       REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. 5128 OF 2013 (Arising out of SLP (C) No. 39105 of 2012)   S.P. Malhotra …Appellant Versus Punjab National Bank & Ors. …Respondents   O R D E R 1. Leave granted.   2. This appeal … Continue reading

Dowry death sec. 498 A , 304 B of IPC =death was due to asphyxia by throttling = In the present case, we have noticed that the prosecution has successfully proved the ingredients necessary to attract the Provision of Section 304B IPC. Such ingredients having been proved, Section 113­B of the Indian Evidence Act automatically comes into play. In the facts and circumstances, the death of Jaswinder Kaur had taken place just within four months of her marriage. The case of the prosecution mainly rests on the evidence of PW­4 and PW­5, parents of the deceased. At the end of the argument, learned counsel for the appellant made an alternative submission and requested to take a lenient view in view of the fact that after the death of Jaswinder Kaur (first wife), the appellant got married second time and from his second wife he has three children out of which one son is handicapped and his mother is also paralysed. Taking into consideration the aforesaid fact, we affirm the conviction under Section 304B IPC and 498­A IPC and reduce the sentence awarded under Section 304B IPC to seven years alongwith the sentence of two years imposed under Section 498­A IPC and fine of Rs.2,000/­ as imposed by the Trial Court and affirmed by the Division Bench of the High Court with direction that both sentences shall run concurrently.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40518 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.510 OF 2007 RANJIT SINGH   …APPELLANT Versus STATE OF PUNJAB …RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This     appeal   is   directed   against     the   judgment   and order   dated   17th   January,   2007   passed   by   the   Division Bench of the Punjab and Haryana High Court at Chandigarh in   Criminal   Appeal … Continue reading

Section 106,113 A,113 B of Evidence Act, 498 A 304 B and 210 /34 = When prosecution proved death with in 7 years due to dowry harassment, the burden shift on accused to prove his innocence, else court can draw presumption under sec. 113 B of Evidence Act = Section 106 of the Evidence Act does not relieve the burden of prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the Court can draw a different inference. 16. The ingredients necessary for application of Section 304­B IPC and the applicability of Section 113­B of the Evidence Act was discussed by this Court in State of Rajasthan v. Jaggu Ram, (2008)12 SCC 51. In the said case, this Court held as follows: “11.The ingredients necessary for the application of Section 304­B IPC are: 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances; 2. that such death has been caused or has occurred within seven years of her marriage; and 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. 12. Section 113­B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under Section 113­B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the court to raise a presumption that the accused caused the dowry death. 13. A conjoint reading of Section 304­B IPC and Section 113­B, Evidence Act shows that in order to prove the charge of dowry death, prosecution has to establish that the victim died within 7 years of marriage and she was subjected to cruelty or harassment soon before her death and such cruelty or harassment was for dowry. The expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death.” In the present case, the prosecution proved that the death of Santosh Kaur has occurred otherwise than under normal circumstances. Such death has occurred within a period of 9 months of her marriage i.e. much before seven years. The statements of PW­2 and PW­3 are trust­worthy and they stated that Santosh Kaur was subjected to harassment by her husband and other accused relatives in connection with demand for dowry just prior to death. The prosecution having established essential ingredients, it becomes the duty of the Court to raise a presumption that the accused caused dowry death. In the present case, the accused has failed to explain as to why he was in a hurry to cremate the deceased in the early morning of 24th January, 1993 while she died in the mid night of 23rd/24th January, 1993 i.e. within few hours. The village of deceased’s parents was just 17­18kms far from the village of the accused but the reason as to why they were not informed about the incident on the same day and why the accused had not waited for them to come is not explained. The accused has also failed to explain as to why according to the F.S.L. Report, an Organo Phosphorus Pesticide was found in the vomiting of the deceased. Therefore, the Trial Court rightly drew an inference that the accused­appellants were guilty of the offence for which they were charge.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40516 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.14 OF 2007 RAJINDER SINGH …APPELLANT Versus STATE OF HARYANA     …RESPONDENTS With CRIMINAL APPEAL NO.15 OF 2007 J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. These two appeals are directed against  the common judgment dated 9th December, 2005 passed by the learned Single Judge of the Punjab and Haryana High Court at Chandigarh in two separate Criminal Appeal Nos. 392­SB of 1995 and 151­SB of 1995, whereby the learned Single Judge   dismissed   the   appeals   preferred   by   the   accused and affirmed the conviction and sentence awarded by the Additional Session Judge, Yamuna Nagar at Jagadhri. 2.The   appellants   were   tried   for   offences   under Sections   498­A  … Continue reading

Blog Stats

  • 2,848,829 hits

ADVOCATE MMMOHAN

archieves

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

Join 1,901 other followers

Follow advocatemmmohan on WordPress.com