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Shimla

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Himachala Pradesh state amendment is with the view to provide impediment free reservation in promotion to the Scheduled-Castes and Scheduled-Tribes and to bring certainty and clarity in the matter. Furthermore, the aforesaid proposed amendment is to be introduced with retrospective effect from 17th June, 1995. = “‘Due Consideration’ is totally different from collecting quantifiable data. This exercise has to be conducted and no reservation in promotion can be made without conducting such an exercise. Therefore, the State cannot be permitted to make reservations till such exercise is carried out and clear-cut quantifiable data is collected on the lines indicated in M.Nagaraj’s case. We may also point out that other than making vague reference to “due consideration” having been done, till date the State has not produced before us any clear-cut quantifiable data which could establish the need for reservation. Merely because the amended provision of the Constitution enable the State to make reservation is no ground not to collect data. Therefore, the instructions have to be struck down as being violate of the law laid down in M. Nagaraj’s case by the Apex Court.”= We, therefore, allow this Interlocutory Application and direct the State of Himachal Pradesh to take a final decision on the issue either on the basis of the data already submitted to the Cabinet Sub-Committee on 25th April, 2011 or on the basis of the data reflecting the position as on 30th June, 2011, within a period of three months from today. Till a final decision is taken, the direction restraining the State of Himachal Pradesh from making any promotion shall continue H.P. Scheduled Tribes Employees Federation & Anr. … Appellants Versus Himachal Pradesh S.V.K.K. & Ors. …Respondents.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40773 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION INTERLOCUTORY APPLICATION NO.6 OF 2012 IN SPECIAL LEAVE PETITION (C.) No. 30143 OF 2009 H.P. Scheduled Tribes Employees Federation & Anr. … Appellants Versus Himachal Pradesh S.V.K.K. & Ors. …Respondents With CONTEMPT PETITION (C.) NO. 91 OF 2013 IN SPECIAL LEAVE PETITION (C.) … Continue reading

Hindu succession Act – scope of sec. 6 and sec. 8 = a suit for declaration that sale deed dated 19.6.1993 executed by respondent No.2 in favour of respondent No.1 is illegal, void, without jurisdiction and inoperative on the rights of the appellant with consequential relief of possession and permanent prohibitory injunction. = 1. Whether in the facts and circumstances of the case the property in dispute has devolved upon the heirs of Baba Surinder Singh Bedi under proviso to Section 6 of the Hindu Succession Act. 2. Whether in view of the proviso of Section 6 of the Hindu Succession Act the succession of property of Baba Surinder Singh Bedi on his heirs under Section 8 of the Hindu Succession Act will change the nature and nomenclature of property from ancestral/coparcenary property to that of self acquired property. = “6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left his surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation I. – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.” The interest of Nanak Chand shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. In view of Explanation I of Sec. 6, Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7, that is, 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim. When the question of determination of share among the heirs crops up before the Court, the Court has to see that every heir gets his due. Shri Itorora appearing for the respondents could not successfully meet the point raised on behalf of the appellant.” = The bare perusal of Section 6 of the Act makes it clear that in this situation the estate of Baba Surinder Singh would devolve under Section 8 and not under Section 6 of the Act. In view of law laid down by the Supreme Court in the aforesaid judgments, respondent No.2 would inherit his share in the estate of late Baba Surinder Singh in his individual capacity and not alongwith his son appellant. Once this is the position then the appellant has no right to assail the sale dated 19.6.1993 made by respondent No.2 in favour of respondent No.1.

published in http://164.100.138.36/casest/generatenew.php?path=data/judgment/2013old/&fname=RSA4822000.pdf&smflag=N IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 482 of 2000. Judgment reserved on : 6.5.2010 Date of decision : 14.6. 2010. Capt. Arminder Singh Bedi (Amninder Singh Bedi) ..Appellant. Versus Guru Nanak Dev University and another . ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 … Continue reading

sec. 302, 498 A = Non – Explanation of LIGATURE MARK by Accused while joining his wife in the Hospital = There was 10 cm long ligature mark of dark brown colour extending from left sternocleide mastoid to the right sternocleide mastoid below cricoids cartilage, reddish brown in colour, abrasion to be on the right side. Ligature mark encircles the neck only on front side. No encircling of the neck on the back and away from sternecleid mastoid. There was ligature of 1.5 cm wide or less than it at places (ligature used was not presented by the police at the time of postmortem examination). It was not with the body either. No abrasion/brusises on the mouth, nose, cheeks, forehead. Lips were blue. Tongue was in drawn, plinching of teeth, on opening base of tongue swollen. No injury to tough, clinching of hands present.= High Court at Shimla, acquitted the accused­respondent by allowing the appeal and set aside the order of conviction under Section 302 IPC and Section 498­A IPC with sentence thereunder, passed by the Sessions Judge, Hamirpur, HP on 13th June, 2002. = Post mortem report(PW­10/A) prepared by Dr. K.C. Chopra(PW­10) shows that there was ligature mark on the neck of the deceased. – the ligature mark of 10cm long and 1.5 cm. wide in horizontal position cannot be caused by hanging but could have been caused by strangulation. Medical evidence, therefore, completely falsify the case of accused no. 1(respondent herein). The conduct of the accused no. 1 was also not natural. When he found his wife hanging, he neither made hue and cry nor called the villagers nearby. He along with others brought down the body of the deceased. He, even thereafter, did not report the matter immediately on his own to police.= Therefore, we find that all the findings by the Division Bench of the High Court, rejecting the evidence of Dr. K.C. Chopra (PW­10) and other material witnesses including Kartar Chand (PW­3) and Prem Chand (PW­5) are clearly unsustainable, whereas those given by the Trial Court accepting the evidence of these witnesses were weighty and sound. Hence, we allow the appeal and set aside the impugned order of acquittal passed by the Division Bench of the High Court of Himachal Pradesh on 16th November, 2004 and convict the accused­respondent under Section 302 IPC for the murder of his wife, Vidhya Devi and sentence him to imprisonment for life. We, thereby restore the order of conviction passed against the accused­respondent by the Trial Court. The accused­respondent shall surrender immediately to serve out the remainder of the sentence.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40517 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 269 OF 2007 STATE OF HIMACHAL PRADESH  … APPELLANT VERUS JAI CHAND  … RESPONDENT J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. This appeal is preferred by the State of Himachal Pradesh against   the   judgment   dated   16th  November,   2004     in   Criminal Appeal No. 392 of 2002. By the impugned judgment the Division Bench of the Himachal Pradesh High Court at Shimla, acquitted the accused­respondent  by  allowing  the  appeal    and  set  aside the order of conviction under Section 302 IPC and Section 498­A IPC with  sentence  thereunder,    passed  by  the  Sessions  Judge, Hamirpur, HP on 13th June, 2002. … Continue reading

Military service – while in service, the claimant affected with mental disability and on his termination of his service, he is entitled for pensioner benefits = (i) Whether a member of Armed Forces can be presumed to have been in sound physical and mental condition upon entering service in absence of disabilities or disease noted or recorded at the time of entrance. (ii) Whether the appellant is entitled for disability pension. = whether a disability is attributable or aggravated by military service to be determined under “Entitlement Rules for Casualty Pensionary Awards, 1982″ of Appendix­II (Regulation 173).= (ii) A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record at the time of entrance. In the event of his subsequently being discharged from service on medical grounds any deterioration in his health is to be presumed due to service. [Rule 5 r/w Rule 14(b)]. (iii) Onus of proof is not on the claimant (employee), the corollary is that onus of proof that the condition for non­entitlement is with the employer. A claimant has a right to derive benefit of any reasonable doubt and is entitled for pensionary benefit more liberally. (Rule 9). (v) If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have arisen in service. [14(b)].= As per Rule 423(a) of General Rules for the purpose of determining a question whether the cause of a disability or death resulting from disease is or is not attributable to service, it is immaterial whether the cause giving rise to the disability or death occurred in an area declared to be a field service/active service area or under normal peace conditions. “Classification of diseases” have been prescribed at Chapter IV of Annexure I; under paragraph 4 post traumatic epilepsy and other mental changes resulting from head injuries have been shown as one of the diseases affected by training, marching, prolonged standing etc. Therefore, the presumption would be that the disability of the appellant bore a casual connection with the service conditions. In view of the finding as recorded above, we have no option but to set aside the impugned order passed by the Division Bench dated 31st July, 2009 in LPA No.26 of 2004 and uphold the decision of the learned Single Judge dated 20th May, 2004. The impugned order is set aside and accordingly the appeal is allowed. The respondents are directed to pay the appellant the benefit in terms of the order passed by the learned Single Judge in accordance with law within three months if not yet paid, else they shall be liable to pay interest as per order passed by the learned Single Judge. No costs.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40493 Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4949  OF 2013 (arising out of SLP(C)No. 6940 of 2010) DHARAMVIR SINGH …. APPELLANT VERSUS UNION OF INDIA & ORS.               ….RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. 2. This appeal has been preferred by the appellant against the   judgment   dated   31st  July,   2009   in   LPA   No.26   of   2004 passed by the Division Bench of the High Court of Himachanl Pradesh,   Shimla   whereby   the   Division   Bench   allowed   the … Continue reading

Section 14(3)(c) does not require that the building plans should have been duly sanctioned by the local authorities as a condition precedent to the entitlement of the landlord for eviction of the tenant. = availability of building plans duly sanctioned by the local authorities is not an ingredient of Section 14(3)(c) of the Act and, therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the Court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord. once the High Court maintained the order of eviction passed by the Controller under Section 14(4) of the Act, the tenants were obliged to give vacant possession of the building to the landlord and could only ask for reasonable time to deliver vacant possession of the building to the landlord and hence the direction of the High Court that the order of eviction could only be executed on the revised plan of the building being approved was clearly contrary to the provisions of Section 14(4) of the Act and the proviso thereto. We accordingly allow the appeals, set aside the directions in Para 27 of the impugned judgment of the High Court, but grant time to the respondents to vacate the building within three months from today. We make it clear that it will be open for the respondents to apply for re-entry into the building in accordance with the proviso to clause (c) of Section 14(3) of the Act introduced by the Amendment Act, 2009. Considering, however, the peculiar facts and circumstances of the cases, there shall be no order as to costs.

Page 1     Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4127 OF 2013 (Arising out of SLP (C) No. 30 of 2012) Hari Dass Sharma … Appellant Versus Vikas Sood & Ors. … Respondents WITH CIVIL APPEAL No. 4128 OF 2013 (Arising out of SLP (C) No.776 of 2012) … Continue reading

Insurance – Insurance company agreed to insure timber – Timber washed away due to flood – Insurance company repudiated claim in 1988 -Complaint filed in 1994 – Dismissed by National Consumer Commission as time barred – On facts, held: On date of flood, there was no insurance policy in existence nor any commitment on behalf of insurance company to make payment – Even accepting the case at its very best that the period of limitation was 3 years under s.44 of the Limitation Act, the complaint was, even then, beyond time – No case made out for interference by Supreme Court – Limitation Act, 1963 – s.44. Contract Act, 1872 – s.28 – Contract of insurance – Clause providing for forfeiture or waiver of the right itself if no action was commenced within period stipulated – Held: Not violative of s.28 – Though curtailment of period of limitation is not permissible in view of s.28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. Respondent insurance company agreed to insure timber lying in forest areas of the State and issued cover note followed by an insurance policy to be purportedly valid for one year from 6th November, 1987 onwards. The timber was washed away some time in September, 1988 on account of heavy rains and consequent large scale flooding in the State. When appellant laid claim before the respondent, the latter vide its communication dated 13th October 1988 refuted its liability and repudiated the claim contending that the insurance policy was issued for 8 months only starting from 6th November, 1987 and ending on 5th July, 1988 and the period of one year mentioned in the policy was on account of a typographical mistake. It is alleged that Respondent even accepted additional premium after the policy was repudiated and still declined to make good the loss. Appellant filed complaint before National Consumer Commission. The Complaint was dismissed as time barred having been filed after expiry of the 12 months period stipulated by Clause 6(ii) of the insurance policy. The order passed by the National Consumer Commission was challenged in the present appeal on grounds that Clause 6(ii) of the insurance policy could not be sustained being violative of s.28 of the Contract Act, 1872 and in any event s.44 of the Limitation Act, 1963 provided a limitation period of 3 years from the date of disclaimer. =Dismissing the appeal, the Court HELD:1. It is clear from the record that the timber had been washed away some time in September, 1988 and after prolonged correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant’s claim. It is also clear from the counter affidavit filed by the respondent that the appellant had, vide its letter dated 7th November 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December 1987, that is long before the flood. The claim of the appellant that the respondent company had, even after the 13th October 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant/appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is, therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. Therefore, even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994. [Para 5] [1018-G-H; 1019-A-D] 2. As regards the issue of clause 6 (ii) of the insurance policy vis-a-vis s.28 of the Contract Act, 1872, the National Commission had relied upon the Sujir Nayak’s case to hold that the complaint could not be entertained as being time barred. In Sujir Nayak’s case, while dealing with an identical situation where a contract contained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the contractual provision was not hit by s.28 as the right itself had been extinguished. The plea of the appellant that in view of the Food Corporation of India’s case, the Sujir Nayak’s case was liable for reconsideration has no merit since in Sujir Nayak’s case, Food Corporation of India’s case was specifically considered. [Paras 6, 8 and 9] [1019-D; 1021-B-D] National Insurance Co. Ltd. vs. Sujir Ganesh Nayak & Co. & Anr. (1997) 4 SCC 366; Food Corporation of India vs. New India Assurance Co. Ltd. & Ors. (1994) 3 SCC 324; Vulcan Insurance Co. Ltd. vs. Maharaj Singh & Anr. (1976) 1 SCC 943 and Muni Lal vs. Oriental Fire & General Insurance Co. Ltd. & Anr. (1966) 1 SCC 90, referred to. Case Law Reference: (1997) 4 SCC 366 referred to Para 3 (1994) 3 SCC 324 referred to Para 3 (1976) 1 SCC 943 referred to Para 3 (1966) 1 SCC 90 referred to Para 3 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6347 of 2000. From the final Judgment and Order dated 16.8.2000 of the National Consumer Disputes Redressal Commission, New Delhi in Original Petition No. 95 of 1994. Naresh K. Sharma for the Appellant. K.L. Nandwani and Debasis Misra for the Respondent. =, , , 2009(1 )SCALE216 , 2008(13 )JT66

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6347 OF 2000 H.P. State Forest Company Ltd. ……..Appellant Vs. M/s. United India Insurance Co. Ltd. …….Respondent JUDGMENT HARJIT SINGH BEDI,J. 1. The facts leading to this appeal are as under: 2. In October 1987, a meeting was convened by the Managing … Continue reading

whether the family settlement and exchange of properties is valid ? – Jamni inherited the estate of her husband Hari Ram on his death in the year 1954. She had undivided shares in Chak Nani and Chak Kaljer. By a family arrangement, Jamni had relinquished her share in Chak Kaljer and instead, she took the share of her brothers-in-law Kharia and Delu in Chak Nani. Thus, Jamni and Debku became full owner of the Chak Nani and consequently had full right to dispose of the said property at Chak Nani. They had sold the property (at Chak Nani) to the appellant herein. The property was sold for consideration and in good faith.

1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 432 OF 2002 HARI CHAND ROACH Appellant(s) :VERSUS: HEM CHAND AND ORS. Respondent(s) J U D G M E N T Dalveer Bhandari, J. 1. This appeal emanates from the judgment of the High Court of Himachal Pradesh at Shimla delivered on … Continue reading

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