THE INDIAN LAW REPORTS HIMACHAL SERIES, 2014 EDITOR RAKESH KAINTHLA Director ...

241 Pages·2014·1.73 MB·English

THE
INDIAN LAW REPORTS
HIMACHAL SERIES, 2014

EDITOR
RAKESH KAINTHLA
Director,
H.P. Judicial Academy,
Shimla.

November, 2014
Vol. LXIV (X)
Pages: HC 393 to 612
Mode of Citation : I L R 2014 (X) HP 1
Containing cases decided by the High Court of
Himachal Pradesh and by the Supreme Court of India
And
Acts, Rules and Notifications.
PUBLISHED UNDER THE AUTHORITY OF THE GOVERNMENT OF
HIMACHAL PRADESH , BY THE CONTROLLER, PRINTING AND
STATIONERY DEPARTMENT, HIMACHAL PRADESH, SHIMLA-5.

All Right Reserved
INDIAN LAW REPORTS
HIMACHAL SERIES
(November, 2014)
INDEX
1) Nominal Table i-ii
2) Subject Index & cases cited I-XVII
3) Reportable Judgments 393-612
-----------
i

Nominal table
I L R 2014 (X) HP 1

Sr. Title Page
No.
1 Amin Chand Mehta Vs. Commissioner of Wealth 442
Tax
2 Amin Chand Mehta Vs. Commissioner of Wealth 445
Tax
3 Avtar Singh Dyal Vs. H.P. State Electricity Board 535
Ltd.
4 Bakshi Ram son of Achharu Vs. Mandro Devi 568
5 Banka Ram Vs. Des Raj and others 462
6 Bhim Singh Vs. State of H.P. 468
7 Brig. S.C.Kuthiala Vs. Radha Krishan Kuthiala and 505
another
8 Dilbag Singh son of late Shri Bhoda Ram Vs. State 539
of H.P.
9 Govind Ram Vs. Union of India 447
10 Hans Raj (died) through LRs. Vs. Bilwamangal and 508
others
11 Hari Krishan Karol Vs. Surinder Kumar 417
12 Hem Raj Vs. State of H.P. 396
13 Jai Ram Kaundal Vs. State of H.P. and another 450
14 Karam Singh Vs. State of H.P. 541
15 Kulbhushan Sharma Vs. Neeraj Sharma 402
16 Madho (died) through LRs. Vs. Bilwamangal 515
17 Manmohan Kansal & ors. Vs. Hem Raj and others 480
18 Naresh Chand and others Vs. State of H.P. And 481
others
19 Neeraja Marwaha Vs. State of H.P. and others 452
20 New India Assurance Company Vs. Ato Devi and 457
others
21 Oriental Insurance Company Ltd. Vs. Indira Devi & 586
Ors.
22 Oriental Insurance Company Ltd. Vs. Mokshri Devi 590
& Ors.
ii

23 Partap Chand Vs. Bilwamangal and others 521
24 Prem Chand Vs. State of H.P. 483
25 Pritam Chand (died) through LRs. Vs. Bilwamangal 528
26 Raj Kumar & another Vs. Sukh Dev & Ors. 593
27 Ramesh Chand Vs. Kamli Ram and others 548
28 Ramesh Chand and others Vs. Trilok Chand 553
29 Sanjay Sharma son of Om Parkash Vs. State of 563
H.P. (Cr.MP(M) No.671 of 2014)
30 Sanjay Sharma son of Om Parkash and others Vs. 561
State of H.P. And others (Cr.MMO No. 119 of 2014)
31 Santosh Kumar and another Vs. Vijay Ram and 431
others
32 State of H.P. Vs. Krishan Lal 393
33 Suresh Kumar Vs. Sarla Vaidya 499
34 Sushil Kumar alias Shilu Vs. State of H.P. 413
35 Sushil Kumar Dogra son of Sh. Balak Ram Vs. 601
State of H.P. And another
36 The Baghal Land Loosers Transport Co-operative 576
Societies Ltd. and others Vs. State of H.P. & Ors.

37 Tilak Raj Sharma, son of late Sh. Harish Chand 565
Vs. State of H.P.
38 United India Insurance Company Limited Vs. 604
Poonam Sharma & others
39 Veena Devi Vs. Himachal Pradesh State Electricity 460
Board Ltd. and another
40 Vijay Amrit Raj Vs. State of H.P. and others 504
41 Vipan Kumar Vs. Naushad Ahmed and another 607

*******************************************
I

SUBJECT INDEX
‘C’
Code of Civil Procedure, 1908- Order 6 Rule 17- Plaintiff filed an
application seeking amendment to the effect that defendants were not
entitled to compensation and for seeking to restrain the defendants from
spending the award amount- held, that the award was passed on
12.6.2013- plaintiff was not a party before Land Acquisition Collector
and did not know about the proceeding- therefore, plaintiff had filed the
application after exercise of due diligence – amendment was necessary
for adjudicating the controversy between the parties- amendment was
allowed subject to payment of cost of Rs.1,000/-.
Title: Santosh Kumar and another Vs. Vijay Ram and others
Page-431

Code of Civil Procedure, 1908- Order 18 Rule 3-A- An application was
filed for seeking permission to examine the plaintiff after the examination
of other witnesses on the ground that most of the witnesses referred in
the list of witnesses are witnesses of record and it is not possible to
record the statement of the plaintiff without proving the document by the
examination of official witnesses- held, that plaintiff is required to prove
the relinquishment deed and the power of attorney- he is required to lead
evidence regarding the manner of execution of these documents and the
relationship between the parties- plaintiff may be required to prove the
document from the witnesses- therefore, application allowed subject to
the condition that plaintiff will step into witness box immediately after
the examination of the witnesses of the record.
Title: Brig. S.C. Kuthiala Vs. Radha Krishan Kuthiala and another
Page- 505

Code of Civil Procedure, 1908- Order 26 Rule 9- An application for
appointment of Local Commissioner was filed when the case was listed
for arguments- it was specifically asserted in the Written Statement that
the land was demarcated prior to the institution of the suit- it was not
asserted that the defendant had encroached upon the suit land during
the pendency of the suit- held, that the application was filed at the
belated stage for collection of evidence which was not permissible- hence,
application dismissed.
Title: Manmohan Kansal & ors. Vs. Hem Raj & ors. Page-480

Code of Civil Procedure, 1908- Order 39 Rules 1 and 2- Applicant filed
an application seeking mandatory injunction directing the respondents
to remove the lock put on the gate- record showed that the applicant had
constructed a house – Gair Mumkin Kuhal was recorded in the revenue
record- he had also constructed a path adjoining to Kuhal to go to his
house- respondent had put a gate on the path- applicant produced a
certificate from Gram Panchayat showing that he had started
construction work about 11 years ago and had carried material from the
path through vehicle – this was the only path available to the applicant
II

to go to his house – a compromise in another suit also showed that there
was a path which was four meters wide and was being used for going to
the house of the applicant- held, that in these circumstances, the
mandatory injunction was rightly granted.
Title: Ramesh Chand and others Vs. Trilok Chand Page-553

Code of Civil Procedure, 1908- Order 41- Appellate Court framed
additional issues and remanded the case for trial - held, that Appellate
Court should not have remanded whole matter for trial and consideration
on all issues but should have obtained the findings on additional issues
so framed by it.
Title: Ramesh Chand Vs. Kamli Ram and others Page-548

Code of Civil Procedure, 1908- Order 41 Rule 27- Appellant wants to
produce on record the proceedings conducted by the Land Revenue
Officers to show that defendant was admitted to be a tenant by the
plaintiff - the Civil Suit was instituted in the year 1993- held, that a
party guilty of remissness in not producing evidence in trial Court cannot
be allowed to produce it in the Appellate Court.
Title: Pritam Chand (died) through LRs. Vs. Bilwamangal Page-528

Code of Civil Procedure, 1908- Order 41 Rule 27- Appellant wants to
produce on record the proceedings conducted by the Land Revenue
Officers to show that defendant was admitted to be a tenant by the
plaintiff and the Civil Suit was instituted in the year 1993- held, that a
party guilty of remissness in not producing evidence in trial Court cannot
be allowed to produce it in the Appellate Court.
Title: Madho (died) through LRs. Vs. Bilwamangal Page-515

Code of Civil Procedure, 1908- Order 41 Rule 27- Appellant wants to
produce on record the proceedings conducted by the Land Revenue
Officers to show that defendant was admitted to be a tenant by the
plaintiff and the Civil Suit was instituted in the year 1993- held, that a
party guilty of remissness in not producing evidence in trial Court cannot
be allowed to produce it in the Appellate Court.
Title: Hans Raj (died) through LRs. Vs. Bilwamangal and others
Page-508

Code of Civil Procedure, 1908- Order 41 Rule 27- Appellant wants to
produce on record the proceedings conducted by the Land Revenue
Officers to show that defendant was admitted to be a tenant by the
plaintiff and the Civil Suit was instituted in the year 1993- held, that a
party guilty of remissness in not producing evidence in trial Court cannot
be allowed to produce it in the Appellate Court.
Title: Partap Chand Vs. Bilwamangal and others Page- 521
III

Code of Civil Procedure, 1908- Order 43 Rule 1- An appeal against the
order of wholesale remand would lie under Order 41 Rule 1(u) of CPC.
Title: Ramesh Chand Vs. Kamli Ram and others Page-548

Code of Criminal Procedure, 1973- Section 161- Extra judicial
confession- As per prosecution case, accused stated before PW-3 and
PW-6 that “Aaj mene ise dil se mara hai”- they had not disclosed this fact
to the police - held, that in these circumstances, extra judicial confession
could not be relied upon.
Title: Bhim Singh Vs. State of H.P. Page-468

Code of Criminal Procedure, 1973- Section 438- An FIR for
commission of offences punishable under Sections 420 and 120-B read
with Section 34 IPC was registered against the petitioner- dispute was
settled between the parties after the registration of the FIR- held, that
while granting the bail, the Court has to keep in view nature and
seriousness of offence, character of the evidence, circumstances which
are peculiar to the accused, possibility of the presence of the accused at
the trial or investigation, reasonable apprehension of witnesses being
tampered with and the larger interests of the public or the State- Bail is
rule and jail is the exception- bail could not be denied on the ground that
cheque book, pass book and ATM Card are to be recovered from the
applicant.
Title: Sanjay Sharma son of Om Parkash Vs. State of Himachal Pradesh
Cr.MP(M) No.671 of 2014 Page-563

Code of Criminal Procedure, 1973- Section 438- An FIR was registered
against the petitioner for the commission of offence punishable under
Section 306 read with Section 34 IPC - prima facie, the name of the
applicant was mentioned in the suicide note of the deceased- custodial
interrogation of the applicant is necessary keeping in view the gravity-
grant of bail would affect the investigation adversely, therefore,
application rejected.
Title: Tilak Raj Sharma, son of late Sh. Harish Chand Vs. State of H.P.
Page-565

Code of Criminal Procedure, 1973- Section 438- An FIR was registered
against the petitioner for the commission of offence punishable under
Section 306 read with Section 34 IPC - prima facie, the name of the
applicant was mentioned in the suicide note of the deceased- custodial
interrogation of the applicant is necessary keeping in view the gravity-
grant of bail would affect the investigation adversely, therefore,
application rejected.
Title: Dilbag Singh son of late Shri Bhoda Ram Vs. State Page-539

Code of Criminal Procedure, 1973- Section 482- An FIR was registered
against the petitioner for the commission of offences punishable under
IV

Sections 420 and 120-B IPC read with Section 34 IPC- applicant claimed
that matter was settled between the parties- complainant had received
amount of Rs. 1,35,000/- on 15.5.2014 and had compromised the
matter - accordingly, a prayer was made for quashing the FIR- held, that
the offence punishable under Section 120-B IPC is non-compoundable
offence- power to quash the FIR should be exercised sparingly and not to
stifle the prosecution- offence of criminal conspiracy is against the
society and to maintain public peace and tranquility, offence punishable
under Section 120-B IPC cannot be allowed to be compounded even if the
parties have compromised the same- petition rejected.
Title: Sanjay Sharma son of Om Parkash and others Vs. State of
Himachal Pradesh and others (Cr.MMO No. 119 of 2014) Page-561

Constitution of India, 1950- Article 226- Gratuity of the petitioner was
withheld on the ground that decision from the Court was awaited but
record shows that case was disposed of- held, that gratuity is a property
and not a bounty - State being a welfare state could not be oblivious to
the decision of the case- State directed to release the amount with
interest @ 8% per annum.
Title: Neeraja Marwaha Vs. State of H.P and others. Page-452

Constitution of India, 1950, Article 226- H.P. Co-operative Act- Section
94- A revision is not maintainable before the State Government against
an administrative order passed by registrar.
Title: The Baghal Land Loosers Transport Co-operative Societies Ltd. and
others Vs. State of H.P. and others Page-576

Constitution of India, 1950- Article 226- Petitioner was appointed as a
clerk on contract basis- she claimed regularization before Administrative
Tribunal- Tribunal directed the board to regularize the services of the
petitioner as a clerk from the date of completion of 10 years of
continuous services and to grant all the consequential benefits- Board
regularized her services but did not take into consideration the services
rendered by her on contract basis- held, that as per Central Civil
Services (Pension) Rules, 1972, if a person engaged by Government on a
contract basis for a specific period is appointed to the same or another
post without interruption in duty , he may opt to retain the Government
contribution or to refund the monetary benefit- Board should behave as
model employer and cannot be permitted to exploit the situation by not
regularizing the services rendered on contract basis.
Title: Veena Devi Vs. Himachal Pradesh State Electricity Board Ltd. and
another Page-460

Constitution of India, 1950- Article 226- Petitioner was appointed as
Constable in S.S.B. in the category of combatized cadre on 20.08.1974-
he completed 24 years of regular service in the year 1998 - respondent
issued an office memorandum introducing Assured Career Progression
Scheme- petitioner was promoted as head constable - petitioner made a
V

representation which was rejected on the ground that he was not entitled
to grant of 2nd financial up-gradation benefits without fulfilling the
normal promotion norm of qualifying mandatory pre-promotional course
- held, that petitioner was entitled to the benefit of ACP scheme after the
completion of 24 years as per Para-15 of the scheme and it was for the
respondent to ensure that petitioner undergoes mandatory pre-
promotional course- it was not asserted that petitioner had refused to
undergo the course - the action of the respondents of not releasing the
monetary benefits to the petitioners as per Assured Career Progression
Scheme, 1999 is arbitrary and violative of Articles 14 and 16 of the
Constitution of India.
Title: Govind Ram Vs. Union of India Page-447

Constitution of India, 1950- Article 226- Petitioner was appointed as
Medical Officer and he joined his duty on 4.6.1993- subsequently, an
advertisement was issued on 31.10.1996 for the post of ex-serviceman
scheduled caste- petitioner made a representation for considering him
against the said post- his representation was rejected on the ground that
rules do not provide for benefit of fixation of pay and seniority when
Officer is not recruited against the reserved vacancy of ex-serviceman-
held, that instructions of the Government providing that if any ex-
serviceman belonging to scheduled caste or scheduled tribe is selected
for appointment, his selection can be counted against the overall quota of
reservation for scheduled caste or scheduled tribe and that he cannot
claim any benefit of being an ex-serviceman shall be applicable when the
vacancy is available on the date of recruitment of the candidate but will
not apply when no vacancy was available and the petitioner had
specifically indicated his preference for being considered against the post
of ex-serviceman.
Title: Jai Ram Kaundal Vs. State of H.P. and another Page-450

Constitution of India, 1950- Article 226- Petitioner was compulsorily
retired – he filed an application before Administrative Tribunal which was
transferred to Hon’ble High Court and was allowed- petitioner was
permitted to make a representation against the findings of the Inquiry
Officer- petitioner made a representation, which was rejected – petitioner
claimed that order passed by the Disciplinary Authority rejecting the
representation was incorrect- held, that the petitioner was given an
opportunity to appear as defence evidence but he had failed to do so-
petitioner had signed the statements of the witnesses which means that
he was present during the time of recording the statements - he had
failed to join the duty despite issuance of notice- employer had legal
right to transfer the petitioner- as the petitioner had not joined the place
of posting after transfer- therefore, he was rightly held guilty.
Title: Sushil Kumar Dogra son of Sh. Balak Ram Vs. State of HP and
another Page-601
VI

Constitution of India, 1950- Article 226- Petitioners were appointed as
Junior Engineers in general open category - they belonged to ex-
servicemen category and their case was not being considered in the
category of ex-serviceman- respondent contended that the case of the
petitioners could not be considered against the vacancy of ex-serviceman
in view of direction of Hon’ble High Court in V.K. Behal vs. State of H.P
& ors. reported in Latest HLJ 2009 (HP) 402 - Rule 5(1) of the
Demobilized Armed Forces Personnel (Reservation of vacancies in the
Himachal Pradesh State Non- Technical Services) Rules, 1972 has two
parts- first pertains to counting of services for fixation of the pay and
second pertains to counting of service for the purpose of seniority- held,
that in V.K. Behal case, Court had only considered the case for the
seniority and not for fixation of the pay- therefore, respondents were not
in position to say that petitioners are not entitled for the benefit of the
military service for fixation of the pay.
Title: Avtar Singh Dyal Vs. H.P. State Electricity Board Ltd. Page-535

Constitution of India, 1950- Article 226- Petitioners were denied the
appointment as JBT on the ground that they had not secured the
qualifying marks for appointment- held, that the respondent will
consider the case of the petitioner in accordance with law and in case
decision goes against them, they will be at liberty to approach the Court
again and in case decision is in their favour they would be entitled to
seniority from the date of their appointment.
Title: Naresh Chand and others Vs. State of H.P. and others. Page-481

Constitution of India, 1950- Article 226- Respondents admitted that
the petitioner was wrongly denied the appointment and the appointment
would be offered shortly - in view of this statement, respondents No.1
and 3 directed to offer appointment for petitioner within period of four
weeks and to grant seniority from the date of wrongful denial of the
appointment.
Title: Vijay Amrit Raj Vs. State of H.P. and others. Page-504

Constitution of India, 1950- Article 226- The act of drawing of the
election program and the act of dividing the area of operation into zones
cannot be termed to be an administrative act- they would be termed as
quasi judicial function which are to be performed after hearing parties or
making an inquiry- such decision would affect the rights and obligations
of the parties.
Title: The Baghal Land Loosers Transport Co-operative Societies Ltd. and
others Vs. State of H.P. and others Page-576

‘H’
Himachal Pradesh Tenancy and Land Reforms Act, 1972- Copy of
jamabandi for the year 1984-85 shows B to be the owner to the extent of
1/3rd share, and in possession as tenant of 2/3rd share- one L is shown