THE INDIAN LAW REPORTS

HIMACHAL SERIES, 2015

EDITOR

RAKESH KAINTHLA

Director,

H.P. Judicial Academy,

Shimla.

ASSISTANT EDITOR

HANS RAJ

Joint Director,

H.P. Judicial Academy,

Shimla.

SEPTEMBER, 2015

Vol. XLV (V)

Pages: HC 1 TO 729

Mode of Citation : I L R 2015 (V) 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

(September, 2015)

INDEX

1) Nominal Table I to vi

2) Subject Index & cases cited 1 to 46

3) Reportable Judgments 1 to 729

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i

Nominal table

I L R 2015 (V) HP 1

Sr.

No.

Title Page

1 Aarti D/o Sh.Raghubir Singh Vs. Lalit Kumar Sharma

S/o Panna Lal Sharma

701

2 Amar Nath & another Vs. State of H.P. & others 705

3 Anil Kumar Sood Vs. Union of India and another 306

4 Anupam Gupta Vs. Dharmender Gupta 500

5 Arjan Singh Vs. Dr. S.R. Bawa and others 312

6 Bajaj Allianz General Insurance Company Ltd. Vs Pinki

Devi and others

14

7 Bashir Mian Vs. State of Himachal Pradesh D.B. 155

8 Bhag Singh & anr. Vs. Bachni Devi & ors. 332

9 Bhagya Laxmi and ors. Vs. Kalyan Singh & anr. 5

10 Bhavak Parasher Vs. State of H.P. & ors. D.B. 345

11 Chandra Bhan Sharma Vs. State of H.P. 52

12 Changa Ram Vs. State of H.P. D.B. 607

13 Cholamandlam MS General Insurance Co. Ltd. Vs.

Jamna Devi and others

207

14 Commissioner of Income Tax Vs. Rakesh Mahajan D.B. 359

15 Deep Kumar @ Deepu Vs. State of Himachal Pradesh D.B. 46

16 Deepak Arora and another Vs. Vijay Khanna D.B. 162

17 Des Raj Vs. State of H.P. D.B. 665

18 Dharam Dass alias Dharam Singh Vs. Puran Dass and

others

286

19 Dharamjeet Kaur wife of Sh. Surinder Singh Vs. Jagiro

D/o Sh. Labhu Ram

708

20 Dinesh Kumar Vs. State of Himachal Pradesh D.B. 571

21 Dinesh Kumar Vs. Trishla Devi and another 210

22 Dinesh Mohan Vs. Kavita alias Kamlesh 682

23 Diwan Chand Vs. Kala Devi 53

24 Dr. (Ms.) Monica Sharma Vs. Dr. Y.S. Parmar University

of Horticulture & Forestry, Nauni and others

D.B. 491

ii

25 Fateh Chand Vs. State of Himachal Pradesh D.B. 212

26 Gangadhar Vs. State of Himachal Pradesh D.B. 411

27 Gaurav Verma Vs. State of Himachal Pradesh D.B. 394

28 Geeta Chopra Vs. Kulwant Singh Bakshi 93

29 Gehru Ram Vs. State of Himachal Pradesh & others D.B. 96

30 Gian Chand Vs. Hem Raj & ors. 30

31 Gurbax Singh Vs. State of Himachal Pradesh & others D.B. 50

32 Hardev Singh & another Vs. Hira Singh (dead) through

LRs. Smt. Damodari Devi & ors.

455

33 Himachal Raod Transport Corporation Vs. Banti Devi &

others

503

34 Hukam Chand Vs. Bhintra Devi 55

35 International Institute of Telecom Technology Vs. Jai

Pal and others

100

36 Jai Singh Vs. Manisha 505

37 Jumla Jamindaran Village Pangi & others Vs. Jumla

Jamindaran Village Telangi & others

631

38 Kalyan Singh and others Vs. State of Himachal Pradesh D.B. 34

39 Kamal Bhardwaj Vs. Paramjit and others 509

40 Kanti Swaroop Mehta Vs. State of H.P. and others 429

41 Karam Chand Sood Vs. State of H.P. and another 510

42 Kewal Ram (dead through LRs. Jeet Ram & ors.) Vs.

Singh Ram & ors.

261

43 Khem Chand son of late Shri Kanshi Ram & others Vs.

State of H.P. & other

710

44 Krishan Chand Vs. State of HP & ors D.B. 101

45 Krishan Kumar Upmanyu Vs. Union of India and others 440

46 Kuldeep Chand Vs. State of Himachal Pradesh D.B. 190

47 Lalit Narain Mishra Vs. State of HP & others D.B. 105

48 Laxmi Bhardwaj Vs. Lalit Kumar and others 513

49 M/s Techno Electric and Engineering Co. Ltd. Vs. M/s

Satluj Jal Vidyut Nigam Ltd.

D.B. 59

50 M/s. Surya Filling Station Vs. Indian Oil Corporation

and another

56

51 Managing Director, M/s Crest Steel and Power Ltd. Vs. 367

iii

Tara Chand

52 Manish Dharmaik Vs. Shyam Sharma 66

53 Mohinder Chand Vs. State of H.P. and another 107

54 Municipal Corporation Vs. Dinesh Kuthiala and others D.B. 496

55 Namrta Sharma Vs. H.P. State Environment Protection

and Pollution Control Board and others

D.B. 68

56 Narain Chand & ors. Vs. Bhago and ors. 687

57 Narain Chauhan Vs. Ramesh Kumar & another 514

58 National Insurance co. Ltd. Vs. Gulaboo Devi and

others

217

59 National Insurance Company Ltd. Vs. Ashwani Kumar

& others

515

60 National Insurance Company Ltd. Vs. Changa Ram and

others

216

61 National Insurance Company Ltd. Vs. Priya and others D.B. 613

62 Nikku Ram Vs. State of H.P. & ors. 70

63 Oriental Insurance Co. Ltd. Vs. Ranjana & others 229

64 Oriental Insurance co. Ltd. Vs. Mahtaba and others 520

65 Oriental Insurance Company Ltd. Vs. Mansha Ram and

others

524

66 Oriental Insurance Company Vs. Padma Devi and

others

526

67 Oriental Insurance Company Vs. Sukhpal and others 231

68 Pamwi Tissue Ltd. Vs. Universal Sales Corporation &

others

669

69 Parkash Chand & ors. Vs. State of H.P. D.B. 669

70 Parkash Chand son of Jagan Nath Vs. Ajay Sharma and another

635

71 Pawam Kumar Vs. State of HP and others D.B. 577

72 Pawan Kumar and another Vs. The Rajput Kalyan

Sabha, H.P. and others

637

73 Principal, Himachal Dental College & another Vs. Union

of India & others

D.B. 109

74 Prithvi Chand and others Vs. Tej Singh and others 272

75 Pushpa Devi Vs. Om Parkash 72

iv

76 R.B.S. Negi & ors. Vs. State of HP & others 537

77 Raj Kumar alias Tilku Vs. State of H.P. D.B. 232

78 Rajeev Kumar Vs. State of H.P. and others D.B. 578

79 Rajesh Kumar Nanda son of Kishan Chand Nanda Vs.

State of Himachal Pradesh

676

80 Rajesh Kumar Vs. State of H.P. & Others 79

81 Rajinder Guleria Vs. State of Himachal Pradesh 1

82 Rajinder Vs. State of H.P. D.B. 615

83 Ram Singh Vs. State of Himachal Pradesh D.B. 694

84 Rama Nand Vs. Mulmi Devi 449

85 Ravinder Sahi Vs. State of Himachal Pradesh D.B. 16

86 Rekha Vs. State of H.P. and another 112

87 Rita Devi & others Vs. Dinesh Kumar & others 540

88 Sada Nand S/o Fata Vs. Bhagti Devi widow of Shamboo

Ram and others

542

89 Salig Ram Vs. Devi Ram 459

90 Sandeep Bhardwaj Vs. State of H.P. and others D.B. 83

91 Saraswati Devi & ors. Vs. State of HP & ors D.B. 641

92 Satnam Singh alias Chint Ram Vs. State of Himachal

Pradesh

D.B. 579

93 Shashi Bhushan Vs. State of Himachal Pradesh and

others

D.B. 114

94 Sher Mohammed Vs. Himachal Road Transport

Corporation and others

D.B. 237

95 Shriram General Insurance Company Vs. Amarjeet

Singh and others

648

96 Simrata Devi widow of Sh. Bhupinder Dutt and another

Vs. Financial Commissioner Revenue (Appeals)

D.B. 276

97 Sita Rani and others Vs. The Managing Director, HRTC,

and others

247

98 Som Dutt Vs. State of H.P. and others 462

99 State of H.P. and others Vs. Prem Chand and others D.B. 586

100 State of H.P. Vs. Amrik Singh D.B. 653

101 State of H.P. Vs. Suraj Mal D.B. 625

102 State of Himachal Pradesh and another Vs. Chaman 403

v

Singh

103 State of Himachal Pradesh and another Vs. Surinder

Singh

379

104 State of Himachal Pradesh Vs. Jai Ram D.B. 619

105 State of Himachal Pradesh Vs. Kamal Swarup D.B. 472

106 State of Himachal Pradesh Vs. Kamal Swarup Cr. Appeal 280 of 2009

D.B. 465

107 State of Himachal Pradesh Vs. Praveen Kumar 406

108 State of Himachal Pradesh Vs. Reeta Devi & others D.B. 124

109 State of Himachal Pradesh Vs. Surjan Singh son of Shri

Hari Nand and others

D.B. 589

110 Subhash Vs. State of Himachal Pradesh D.B. 714

111 Sumit Kumar Sharma Vs. State of H.P. D.B. 132

112 Sunil Kumar Vs. State of H.P. 300

113 Sunita and others Vs. Self Help Group village Panesh

and others

549

114 Sushil Kumar Vs. Lachhami Chand & another 428

115 Taj Ali Vs. Charag Deen & others 551

116 Thakur Dass Vs. Uma Devi & ors. 42

117 The Chairman Market Committee and another Vs.

Geeta Ram and another

485

118 The General Secretary DAV College and another Vs.

Bindu Lal and another

452

119 The New India Assurance Company Limited Vs. Nirmala

Devi & others

517

120 The New India Assurance Company Vs. Bimla Devi and

others

218

121 The Oriental Insurance Co. Ltd. Vs. Thano Devi &

others

534

122 Tulsi Ram Vs. Veena Devi and others 557

123 Union of India & ors. Vs. Balwant Singh Chandel D.B. 497

124 United India Insurance Co. Ltd. Vs. Meena Devi and

others

560

125 United India Insurance Co. Ltd. Vs. Vidya and others 565

126 United India Insurance Company Ltd. Vs. Puran Chand

& others

564

vi

127 United India Insurance Company Ltd. Vs. Rekha Devi and others

250

128 United India Insurance Company Ltd. Vs. Sham Lal and

others

253

129 United India Insurance Company Vs. Palvi & another 562

130 Usman Shamshudeen Shekh Vs. State of Himachal

Pradesh

D.B. 20

131 Vandana Kumari Guleria & anr. Vs. Union of India &

others

382

132 Veena Sood Vs. Ramesh Kumar Sood & anr 255

133 Vijay Kumar Sood Vs. Krishna Devi Sud & or. 137

134 Vijay Kumar Vs. Rakesh Kumar 281

135 Vijay Kumar Vs. State of H.P. and another 678

136 Vijay Kumar Vs. State of Himachal Pradesh & others 662

137 Vinod Kumar & another Vs. State of H.P. D.B. 139

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- 1 -

SUBJECT INDEX

„A‟

Arbitration and Conciliation Act, 1996- Section 37 (1) (b)- a dispute arose between the

parties, before the contract could be concluded- writ petition was filed which was dismissed

holding that there was no concluded contract between the parties- arbitration proceedings

were initiated by the appellant after the dismissal of the writ petition- Arbitrator passed an

award- respondent questioned the award on the ground that there was no concluded

contract between the parties, Arbitrator had no jurisdiction to enter upon the reference and

to pass the award, and disputed questions of facts and laws are involved - objections were

partly allowed- appellant questioned the findings recorded by the Arbitrator that no

concluded contract had come into existence – held, that the award announced by the

Arbitrator was rightly set aside as there was no concluded contract between the parties – appeal dismissed.

Title: M/s Techno Electric and Engineering Co. Ltd. Vs. M/s Satluj Jal Vidyut Nigam Ltd.

(D.B.) Page-59

„C‟

Code of Civil Procedure, 1908- Section 24-Proceedings under Section 25 of Guardian and

Award Act, 1890 pending in the Court of Civil Judge (Sr. Division) Kasauli- petitioner/wife, a

resident of Tehsil Nurpur, District Kangra prayed for transfer of proceedings from Kasauli to

District Kangra at Dharamshala on the ground of inconvenience, insufficiency of means and other practical difficulties making it difficult to her to attend the Court at Kasauli- held, that

in case where wife seeks transfer of the petition, her convenience must be looked into-

taking into account the convenience of the wife, proceedings ordered to be transferred to

Civil Judge, Kangra at Dharamshala.

Title: Anupam Gupta Vs. Dharmender Gupta Page-500

Code of Civil Procedure, 1908- Section 47- A decree for mandatory injunction was passed

against JD- J.D filed the objections to its execution stating that he had not encroached upon

the suit land and a demarcation be carried out to verify this fact- objections were dismissed

on the ground that no evidence was led to establish that J.D had not encroached upon the

suit land- held, that trial Court had fallen in error by not appointing a Commissioner to

verify, whether defendant had encroached upon the suit land or not- direction issued to the

trial Court to appoint a Local Commissioner to carry out the demarcation.

Title: Diwan Chand Vs. Kala Devi Page-53

Code of Civil Procedure, 1908- Section 96- Plaintiff claimed damages of Rs. 9,90,000/-

against the Government on account of acquisition of 18 biswas of his land - held that suit

for compensation is not maintainable- remedy lies in approaching the Land acquisition

Collector, for determination of the compensation in respect of the acquired land and for

seeking reference to the District judge for enhancement in case of inadequate compensation

- in the event of compensation stands determined and paid to previous owner or lying un-

disbursed with the Collector concerned and still not released in his favour, to file a suit for

recovery thereof in a competent court and also to approach the Collector for making a

reference under Section 18 of the Act to the Court of District Judge, if not satisfied with the

compensation, if any, determined- suit dismissed with liberty to approach the collector or

file the suit as the situation may be.

Title: Krishan Kumar Upmanyu Vs. Union of India and others Page-440

- 2 -

Code of Civil Procedure, 1908- Section 100- Plaintiff claimed damages on account of

demolition of the double storeyed structure raised on the land of Rajput Kalyan Sabha on

the plea that Sabha had leased the land in favour of Municipal Committee, where after

Municipal Committee created permanent lease in his favour and construction was raised-

defendants pleaded that lease in favour of Municipal Committee was cancelled and

possession of the land was handed over to Sabha and the land was being fenced when the

residents of town and private bus operators attacked the members of the Sabha- further pleaded that land and Sabha Bhawan were owned and possessed by the Sabha- suit was

dismissed by the trial Court- First appeal was also dismissed- held, that plaintiff had failed

to lead tangible evidence to establish creation of permanent lease in his favour- no registered

lease deed to prove permanent lease was placed on record- plaintiff also failed to prove that

defendants had caused any damage to his property – no person can confer better right than

he actually possesses, hence, question of permanent lease by Municipal Corporation in

favour of plaintiff does not arise- both the Courts have correctly appreciated the evidence so

led on the record and had come to a right conclusion- appeal dismissed.

Title: Pawan Kumar and another Vs. The Rajput Kalyan Sabha, H.P. and others

Page-637

Code of Civil Procedure, 1908 - Section 100 - Plaintiffs filed a suit for possession alleging

therein that they are the owners of the suit land to the extent of ½ share and the defendants

also had ½ share in the same - further, alleging that during settlement operation in 1890-

91, revenue entries were inadvertently changed reducing the share of the plaintiffs to 1/4th

and increasing the share of the defendants to the extent of 2/3rd – claimed that this mistake

did not come to the notice till 1986 and during consolidation proceedings in 1985-86,

possession of 2/3rd share was wrongly delivered to the defendants - trial Court decreed the

suit and First Appellate Court while accepting the appeal, dismissed the suit- held, that

there is nothing on record to suggest that revenue entries were inadvertently changed - long

standing revenue entries since 1890-91 showing plaintiffs entitled to 1/4th share in the suit

land and the same are not rebutted by the plaintiffs during trial - suit filed after 100 years is

time barred as various consolidation proceedings took place in between and it cannot be

believed that plaintiffs were not aware of the revenue entries- appeal rightly accepted and suit dismissed by the First Appellate Court- the findings of the First Appellate Court well

reasoned and need no interference- appeal dismissed.

Title: Prithvi Chand and others Vs. Tej Singh and others Page-272

Code of Civil Procedure, 1908 - Section 114- Petitioner sought a review of the judgment

passed by the Court on the ground that there was an error apparent on the face of the

record – record shows that entire lis of the petitioner revolves around the answer keys about

which the Court has already delivered the judgment- there is no error apparent on the face

of the record- petition dismissed.

Title: Pawam Kumar Vs. State of HP and others (D.B.) Page-577

Code of Civil Procedure, 1908- Section 115- Hindu Marriage Act, 1955- Section 24-

Court awarded maintenance pendente lite @ Rs. 7,000/- per month along with litigation

expenses of Rs. 10,000/- to the wife - husband feeling aggrieved challenged the order on the ground that his income was meager and, therefore, maintenance was wrongly awarded-

held, that husband is able-bodied person and the wife has a child to be looked after and

maintained- child was in need of admission fees, tuition fees, school uniform etc., apart from

the basic needs- it has to be remembered that when a woman leaves matrimonial home, she

- 3 -

is deprived of many comforts- only comfort law can impose is that the husband is bound to

give monetary comfort- taking into account the facts and circumstances of the case, the

maintenance amount and litigation expenses have rightly been awarded- order does not

suffer from any illegality, irregularity or perversity- Revision petition dismissed.

Title: Dinesh Mohan Vs. Kavita alias Kamlesh Page- 682

Code of Civil Procedure, 1908- Section 115- Order 23 Rule 1(3)- Plaintiff sought declaration qua ownership of suit land on account of adverse possession and prayed for

correction of revenue entries and injunction against the defendants not to interfere in his

peaceful possession - defendants contested the suit- during the suit, the plaintiff prayed for

withdrawal of the suit with permission to file a fresh suit on the ground that mutation was

attested during the pendency of suit, and, suit land was reverted to the villagers and the

villagers are necessary parties for disposal of the suit- application dismissed by the trial

Court- held, that mutation having been effected during the pendency of the suit was hit by

doctrine of lis pendens, and secondly, plaintiff could implead the villagers as party in the

same suit and suit could be continued further in the same shape- further held, that no

formal defect was apparent from the material and, therefore, permission to withdraw the

suit with liberty to file a fresh suit was rightly declined- revision dismissed.

Title: Khem Chand son of late Shri Kanshi Ram & others Vs. State of H.P. & other

Page-710

Code of Civil Procedure, 1908- Section 144- An application was filed for execution of the

award passed by the Arbitrator- a notice was issued in which J.D was proceeded ex-parte

and the attached property was ordered to be sold- J.D deposited an amount of Rs.

4,68,25,228/- - J.D filed an application pleading that there was an error in calculation and

the D.Hs are entitled to Rs. 3,70,49,770.80/-- he prayed for the return of the excess amount

– record shows that Arbitrator had awarded a specific sum to the DH- Learned Single Judge

had found that D.Hs are entitled to the amount of Rs. 3,70,49,770.80/- and not for Rs.

4,68,25,228/-- Executing Court was bound to execute decree passed by the arbitrator-

when specific amount was awarded, J.D is only liable to pay that amount- mere wrong

calculation by the Executing Court will not confer any right upon the D.Hs – J.D had made the payment of the excess amount without his being liable - claim of the J.D cannot be said

to be barred by principles of res-judicata due to calculation error made by the Court- held,

that Court had rightly passed the order for the refund of the amount.

Title: Deepak Arora and another Vs. Vijay Khanna (D.B.) Page-162

Code of Civil Procedure, 1908- Section 151- A counter claim was filed by the defendant

pleading that plaintiff had encroached upon his land- plaintiff filed a complaint against the

defendant before Deputy Commissioner that defendant had violated Section 118 of H.P.

Tenancy and Land Reforms Act - complaint was accepted and land was ordered to be vested

in the State of Himachal Pradesh - this order was affirmed by Financial Commissioner

(Appeals)- plaintiff contended that in view of the orders, defendant had no locus standi to

seek any relief- application was filed for placing the orders on record- application was

dismissed by the trial Court on the ground that writ petition is pending before the High

Court assailing the order passed by Financial Commissioner- held, that since the order has not attained finality, it can not be relied upon by the plaintiff – petition dismissed.

Title: Geeta Chopra Vs. Kulwant Singh Bakshi Page-93

- 4 -

Code of Civil Procedure, 1908- Section 151- Plaintiff filed a suit seeking permanent

prohibitory injunction claiming that his passage was blocked by the defendant by stacking

stones on it- plaintiff filed an application seeking direction from the trial Court to the

Revenue Agency to place on record copy of Tatima after carrying out demarcation to

determine whether the passage was blocked by the defendant or not – application was

rejected on the ground that it amounted to the collection of the evidence on the part of the

plaintiff- held, that dispute between the parties could have been resolved only by conducting the demarcation to determine, whether defendant had encroached upon the passage or not-

application allowed and trial Court directed to issue necessary direction.

Title: Hukam Chand Vs. Bhintra Devi Page-55

Code of Civil Procedure, 1908- Order 1 Rule 10 CPC- Plaintiffs challenged the revenue

entries reducing their share in the suit land and the area under tenancy- defendants took

the objections that the owner of the land is a necessary party- held, that since owner ‗C‘ had

died and her legal representatives were not before the Court, question regarding the tenancy

and its extent cannot be adjudicated in their absence - suit is bad for non-joinder of

necessary parties- appeal accepted and suit remanded to the trial Court with the directions

to implead legal representatives of deceased ‗C‘ as co-owners and thereafter to dispose of the

same within three months.

Title: Sada Nand S/o Fata Vs. Bhagti Devi widow of Shamboo Ram and others

Page-542

Code of Civil Procedure, 1908- Order 6 Rule 17- Plaintiffs filed a suit seeking declaration

that the order passed by the Settlement Collector, Kinnaur is void- defendant filed an

application seeking amendment of the written statement to take a plea regarding the suit

being barred by limitation and existence of alternative passage- trial Court allowed the

application- however, it was not discussed as to how the amendment is clarificatory in

nature - the basis of forming an opinion that no prejudice is going to be caused was not

specified in the order – objections raised by the plaintiffs were not considered by the Court –

therefore, order set aside and the case remanded to the trial Court with a direction to decide

the application afresh.

Title: Jumla Jamindaran Village Pangi & others Vs. Jumla Jamindaran Village Telangi &

others Page-631

Code of Civil Procedure, 1908- Order 10 Rule 2 read with Order 16 Rule 1- Plaintiff filed

an application for examination of the parties before framing the issues on the ground that

defendant had denied the execution of the agreement - held, that object of examining the

parties before framing of issues is to ascertain the matter in dispute and not to take

evidence in civil suit- examination of the parties under Order 10 is not a substitute for

regular examination on oath- parties are examined in the Court before framing of issues

only when there is some ambiguity in the pleadings of the parties- there is no ambiguity in

the pleadings in the present case- application dismissed.

Title: Dharamjeet Kaur wife of Sh. Surinder Singh Vs. Jagiro D/o Sh. Labhu Ram

Page-708

Code of Civil Procedure, 1908- Order 17 Rule 1- Petitioner filed an application for

adjournment which was dismissed- order-sheet showed that petitioner was unable to

complete evidence despite the lapse of 6 years- held, that only three adjournments can be

- 5 -

granted in a suit - more than three adjournments should be granted only in the exceptional

cases and not in routine- petition dismissed.

Title: Veena Sood Vs. Ramesh Kumar Sood & anr Page-255

Code of Civil Procedure, 1908- Order 21- Executing Court had closed the right of J.D to

file the objections on the ground that sufficient opportunities had been granted to file

objections but objections were not filed- one more opportunity granted to the J.D to file objections subject to costs of Rs.1,000/-.

Title: Pamwi Tissue Ltd. Vs. Universal Sales Corporation & others Page-669

Code of Civil Procedure, 1908- Order 21 Rule 32- A compromise decree was passed for

permanent prohibitory injunction- an execution petition was filed pleading that a double

storeyed house was demolished and a house with lintel was constructed in violation of the

decree of the Court- J.D pleaded that he was not party to the decree and was not aware of

the same and he had not raised any construction - Execution Petition was allowed and the

J.D was directed to undergo civil imprisonment for a period of one month and his property

was ordered to be attached- Record shows that J.D was aware of the judgment and decree-

he had demolished old structure - he had constructed one room and thereafter had added

two rooms, bath-room and balcony without seeking permission of the Court- a decree for

injunction can be executed against the legal representatives on the death of J.D- held, that

trial Court had rightly held that J.D had violated the judgment and decree- revision dismissed.

Title: Gian Chand Vs. Hem Raj & ors. Page-30

Code of Civil Procedure, 1908- Order 32 Rule 15- Eviction of the tenant was ordered on

the ground of arrears of rent, that building had become unfit and unsafe for human

habitation and the premises was required for re-building and re-construction which cannot

be carried out without vacating the same- an appeal was preferred- an application under

Order 32 Rule 15 was filed- application was sent to the Rent Controller for conducting

inquiry- rent controller held that revisionist may be suffering from mental illness but there is

no material on record to hold that revisionist was incapacitated to protect his interest

because of mental illness – there was no necessity to appoint a legal guardian- revisionist

was impleaded through his son with the allegation that revisionist is suffering from mental

illness- held, that Court had not declared the revisionist to be suffering from mental illness-

litigant cannot declare a person to be of unsound mind suo moto without the permission of the Court- non-revisionist was also not served, he is ordered to be served by way of

affixation.

Title: Parkash Chand son of Jagan Nath Vs. Ajay Sharma and another Page-635

Code of Criminal Procedure, 1973- Section 70- Trial Court issued non-bailable warrant for

securing the appearance of the petitioner- petitioner had appeared before the trial Court;

hence, petition has become infructuous.

Title: Sushil Kumar Vs. Lachhami Chand & another Page-428

Code of Criminal Procedure, 1973- Section 125- Indian Evidence Act, 1872- Section

138- husband directed to pay interim maintenance to his wife @ Rs. 3,000/- per month from

the date of application- husband showed his inability to pay interim maintenance so

awarded by the Court - on refusal of the respondent to pay interim maintenance, Magistrate

- 6 -

denied the opportunity to the husband to cross-examine the witnesses produced by his wife

and listed case for respondent‘s evidence- held that the right to cross-examine a witness is a

valuable right provided under Section 138 of Indian Evidence Act and cannot be denied to

adversary party - arrears of maintenance could be recovered through the ways and means

provided in Cr.P.C. itself – under no circumstances the right to cross-examine the witnesses

could be closed.

Title: Jai Singh Vs. Manisha Page-505

Code of Criminal Procedure, 1973- Section 438- An FIR was registered against the

applicant for the commission of offences punishable under Sections 420 and 120-B of IPC -

held, that while granting bail, Court has to see the nature and seriousness of offence,

character and behavior of the accused, circumstances peculiar to the accused, reasonable

possibility of securing the presence of the accused at the trial and investigation, reasonable

apprehension of the witnesses being tampered with and the larger interest of the public and

State- 43 bags of the fake cement were found in the shop of the applicant- fake cement

endangers human life- custodial interrogation is necessary to locate the manufacturer-

interest of public and State would be prejudiced by releasing the applicant on bail- petition

dismissed.

Title: Rajesh Kumar Nanda Vs. State of Himachal Pradesh Page-676

Code of Criminal Procedure, 1973- Section 439- Petitioner was admitted on bail subject to the condition that he will not leave India- petitioner prayed that he is Director of the

Company and is required to visit abroad in connection with his work- the trial pending

before the Learned Judicial Magistrate was stayed by the Supreme Court of India- therefore,

trial will not suffer by the absence of the petitioner- petitioner had also not abused liberty

granted to him, hence, permission granted to the petitioner to visit abroad.

Title: Chandra Bhan Sharma Vs. State of H.P. Page-52

Code of Criminal Procedure, 1973- Section 482- An FIR under Sections 279, 337 and 201

of IPC and Section 187 of M.V. Act was registered against the petitioner which resulted in

initiation of criminal proceedings against the petitioner in the Court of Judicial Magistrate-

petitioner stated in the petition that the injured had entered into a compromise with him

and FIR was lodged due to some misunderstanding – injured also appeared before the Court

and stated that he got perplexed on seeing the motor-cycle and thereby lost his control and

fell down on the road, hence, he had no objection for quashing the FIR - held, that taking into account the statement of the injured and the fact that offence is not against the State

and the trial will be a futile exercise, it is a fit case where the FIR can be quashed –FIR and

proceedings pending the court of Judicial Magistrate quashed.

Title: Vijay Kumar Vs. State of H.P. and another Page-678

Code of Criminal Procedure, 1973- Section 482- Petitioner sought quashing of FIR

registered against him on the ground that no cause of action has arisen within the territorial

jurisdiction of the State of H.P. - held, that the promise of recruitment was made within the

jurisdiction of Shimla- merely because payment was made at Chandigarh will not divest the

jurisdiction of the Court at Shimla- petition dismissed.

Title: Rajinder Guleria Vs. State of Himachal Pradesh Page-1

- 7 -

Constitution of India, 1950- Article 141- Precedents- Precedents by the Hon‘ble Apex

Court have binding effect even if they were delivered four decades ago- doctrine of binding

precedent promotes certainty and consistency in judicial decisions and enables an organic

development of law.

Title: Managing Director, M/s Crest Steel and Power Ltd. Vs. Tara Chand

Page-367

Constitution of India, 1950- Article 226- ‗N‘ was engaged as a Junior Scientific Assistant-

‗D‘ had also participated in the selection process- appointment was for a period of one year,

which was extended by another year- writ Court had allowed the writ petition filed by the ‗D‘

and had cancelled the appointment of ‗N‘ – writ court also directed the recovery of the salary

paid to ‗N‘ from the members of Selection Committee- held, that period of contract has come

to an end and the appeal has become infructuous – members of the Selection Committee

were not arrayed as parties before the Writ Court and order could not have been passed

against them- appeal allowed and order directing the recovery of money set aside.

Title: Namrta Sharma Vs. H.P. State Environment Protection and Pollution Control Board

and others (D.B.) Page-68

Constitution of India, 1950- Article 226- A letter of intent was issued to the petitioner- an

agreement was entered between the parties, however, Retail outlet dealership was

terminated on the ground of concealment of facts – petitioner contended that her marriage

was solemnized in the temple- some ceremonies were held thereafter and record was

corrected on the basis of subsequent ceremonies- held, that petitioner had not led any

evidence to show that she had married earlier- her plea that she had to marry again was

also not acceptable- different dates of marriage were recorded in panchayat register - name

of the husband of petitioner was also recorded different- petitioner had concealed his

marriage as well as the fact that her mother was a partner in the Agency at Hamirpur,

therefore, respondent had rightly cancelled the allotment made in favour of the petitioner-

petition dismissed.

Title: M/s. Surya Filling Station Vs. Indian Oil Corporation and another

Page-56

Constitution of India, 1950- Article 226- Administrative Tribunal found that the orders of

the Disciplinary and Appellate Authority were not reasoned- Appellate Authority had not

given findings whether Disciplinary Authority had followed prescribed procedure or not-

Appellate Authority had also not given due consideration to the explanation given by the

delinquent- orders were quashed and the consequential benefits were ordered to be

extended to the delinquent- no infirmity was pointed out in the orders passed by the

Administrative Tribunal- petition dismissed.

Title: Union of India & ors. Vs. Balwant Singh Chandel (D.B.) Page-497

Constitution of India, 1950- Article 226- Appellant was selected for the post of Forest

Guard- Private respondent filed various complaints against him that false certificates were

filed by the appellant- Respondent also filed a petition challenging the appointment of

appellant- an inquiry was conducted by SDO (Civil) who found that appellant did not belong

to IRDP and Below Poverty Line category- his services were terminated- Writ Court held that

appellant did not belong to IRDP category and his termination was legal- SDO(Civil) was

directed to inquire, as to whether respondent belonged to IRDP category or not- Secretary,

Gram Panchayat Kasol appeared before the High Court and produced the record after which

- 8 -

Court held that appeallant belongs to IRDP category- Respondent had participated in the

inquiry and findings were recorded against him- in view of this, appeals are allowed with all

the consequential benefits.

Title: Gehru Ram Vs. State of Himachal Pradesh & others Page-96

Constitution of India, 1950- Article 226- Case of the appellant was rejected on the ground

that he had not completed 10 years of continuous services with the minimum 240 days in each calendar year and, therefore, he was not entitled for regularization- he filed a writ

petition against this order pleading that his services were wrongly retrenched while his

juniors were retained thereby violating principles of ‗last come first go‘- Conservator of

Forest filed his personal affidavit stating that no person junior to the appellant was retained

by the department and services of the appellant were never retrenched by the department-

petition was dismissed by the writ Court- there was no material on record to show that

services of the appellant were retrenched while his juniors were retained- the chart prepared

by the petitioner was also not correct- held, that writ Court had rightly dismissed the

petition.

Title: Krishan Chand Vs. State of HP & ors. (D.B.) Page-101

Constitution of India, 1950- Article 226- HRTC took a decision to fill up 680 posts of

TMPAs by cancelling the earlier process- written tests and interviews were conducted-

selection process was challenged- General Rules framed by the State Government regarding H.P. Subordinate Services Selection Board will not be applicable to HRTC, unless it is proved

that notification was issued after the consultation with the corporation- advertisement is

required to specify the rules and instructions under which the applications are being invited

and on the basis of which selection is to be made- respondent/corporation is a State and

cannot act arbitrarily – therefore, in absence of the guidelines, selection process has to be

set aside- petition allowed.

Title: Shashi Bhushan Vs. State of Himachal Pradesh and others (D.B.)

Page-114

Constitution of India, 1950- Article 226- Petitioner contended that University had not conducted the examination of first hourly, mid-term, second hourly and practical

examination despite repeated request- petitioner had submitted his assignment but he was

shown absent- he was denied the access to the answer book when so demanded by him-

respondent contended that petitioner had failed to submit his assignment up to the end-

term examination and did not turn up for final practical examination - he was rightly shown

as absent- all other students except the petitioner had checked their answer books but the

petitioner had never reported to check his answer books- answer books were produced

before the High Court, which showed that petitioner had appeared and his answers were

marked by the University- held, that petitioner had not come to the Court with clean hands

and had not disclosed the material facts- no proof was filed to show that petitioner had

submitted his assignment and was wrongly shown absent- petition dismissed.

Title: Lalit Narain Mishra Vs. State of HP & others (D.B.) Page-105

Constitution of India, 1950- Article 226- Petitioner contested for the office of Ward Member along with respondent No. 2- however, respondent No. 2 was declared as elected

after counting the votes- petitioner feeling aggrieved by the manner of counting ballot papers

thrice by Returning Officer before declaration of result, approached the SDO (Civil)-cum-

Authorized Officer- petition was dismissed- an appeal was filed which was also dismissed-

- 9 -

held, that Rule 41(2) of Himachal Pradesh Gram Panchayat (Election) Rules, 1978 provides

that the ballot papers can be recounted only, if an aggrieved candidate applies in writing to

the Returning Officer for re-counting and the Returning Officer while deciding the

application, allows the recounting- further held, that since, the Returning Officer in this

case has recounted the ballot papers thrice without there being a request from any of the

candidates, the mandatory provisions were violated - orders passed by SDO (Civil)-cum-

Authorized Officer and Deputy Commissioner in appeal do not stand the legal scrutiny, hence, both the orders set aside with the directions to SDO (Civil)-cum-Authorized Officer to

recount the ballot papers within three weeks and thereafter to announce the result.

Title: Som Dutt Vs. State of H.P. and others Page-462

Constitution of India, 1950- Article 226- Petitioner filed an application seeking licence of

revolver- nothing adverse was found against him by the police or local pardhan-

subsequently, ‗S‘ sent a report stating that a case was registered against the petitioner

under Section 325/34 of IPC- the application of the petitioner was rejected- earlier police

had no objection for issuance of the licence and it was specifically stated that petitioner had

good moral character- son of the petitioner was murdered and FIR was registered regarding

the same- petitioner was not prohibited by the Act or by any other law from acquiring any

arms or ammunition – there was no issue of public peace or public safety involved in the

case- ADM had taken the guidance from the State Government and had abdicated his power

to the State- there is a property dispute between the petitioner and his brother-in-law- therefore, it can be safely said that there was threat to his life - authorities cannot refuse to

issue the licence on the ground of registration of a case against the petitioner - where a

person has committed heinous crime, licence can be refused to him- writ petition allowed

and respondent No. 5 directed to issue the licence in favour of the petitioner.

Title: Bhavak Parasher Vs. State of H.P. & ors.(D.B.) Page-345

Constitution of India, 1950- Article 226- Petitioner had issued a legal notice on the basis

of which an order was passed- he had taken the benefit of the Rule 2 of Demobilized Armed

Forces Personnel Rules, 1972- he cannot make a U-turn and plead that he is a fresh

appointee- appeal dismissed.

Title: Gurbax Singh Vs. State of Himachal Pradesh & others (D.B.) Page-50

Constitution of India, 1950- Article 226- Petitioner had made a prayer to quash the rules,

office orders dated November 3, 2001 and November 22, 2001- Writ Court had not discussed the grounds on which the rules were held to be violative of the Service Jurisprudence and

the mandate of the Constitution of India- it had also not discussed how the writ petitioners

were affected and which of their rights were taken away- Writ Court had not taken into

account the pleadings of the parties particularly the defence of the respondents- Court had

not made any discussion and had failed to marshal out the facts and merits of the case-

judgment set aside and the case remanded to Administrative Tribunal.

Title: State of H.P. and others Vs. Prem Chand and others (D.B.) Page-586

Constitution of India, 1950- Article 226- Petitioner had participated in the selection

process- he cannot turn around and challenge the process itself- his writ petition was rightly

dismissed.

Title: Rajeev Kumar Vs. State of H.P. and others (D.B.) Page-578

Constitution of India, 1950- Article 226- Petitioner was appointed as a Salesman on 50% commission basis- his services were terminated – surcharge proceedings were initiated

- 10 -

against the petitioner- he was directed to refund the amount of Rs. 31,012.60/- along with

interest- representation made by the petitioner was decided by the speaking order after

affording opportunity of being heard- petitioner had admitted his liability – surcharge

proceedings were initiated on the basis of inquiry/audit report of the society- appeal

dismissed.

Title: Nikku Ram Vs. State of H.P. & ors. Page-70

Constitution of India, 1950- Article 226- Petitioner was appointed as a lecturer in

Himachal Pradesh Dental College, Sunder Nagar- pay scale was revised - petitioner filed a

representation for fixing his salary as per revised pay scale which was rejected- no reply was

filed by the respondent, therefore, averments made in the writ petition had remained

unrebutted - writ Court had granted the relief on the ground that petitioner was entitled for

the revised pay scale which cannot be faulted- appeal dismissed.

Title: Principal, Himachal Dental College & another Vs. Union of India & others (D.B.)

Page-109

Constitution of India, 1950- Article 226- Petitioner was appointed as a driver in HRTC- he

left to his native place on 28.6.1994 and did not report for duty – his absence was treated as

subject matter of inquiry- he was ultimately removed- he filed a representation which was

rejected- it was contended that Inquiry Officer had not held that absence of the petitioner

was willful and in absence of such finding, petitioner could not have been removed from the

service- held, that charge against the petitioner was of willful absence but the Inquiry Officer

had nowhere recorded in the findings that absence was willful – petitioner had relied upon

some documents but these were not considered by the Inquiry Officer- no finding was

recorded by the Inquiry Officer that defence taken by petitioner was false or after thought-

petitioner cannot be removed from the service without proving willful absence- further, Inquiry Officer had not supplied the copy of inquiry report to the petitioner which is

mandatory- petition allowed- petitioner ordered to be reinstated and he is held entitled to

50% back wages.

Title: Sher Mohammed Vs. Himachal Road Transport Corporation & ors (D.B.)

Page-237

Constitution of India, 1950- Article 226- Petitioner working as Panchayat Sahayak - he

failed to supply information sought under the Right to Information Act- a show cause notice

was issued to him as to why his contract should not be rescinded under rule 8 (5) of the

H.P. Panchyati Raj (Appointment and Condition of Service of Panchyat Sahayak) Rules,

2008- reply was considered and contract was rescinded- appeal was also dismissed – both

the orders challenged through a writ petition- held, that under aforesaid rule, the District

Panchayat Officer was to satisfy himself that the petitioner had failed to perform his duties

assigned to him and then to pass a speaking order- the order passed by the District

Panchayat Officer showed that aforesaid rule has not been followed in letter and spirit by

him – hence, order passed by District Panchayat Officer and Appellate Authority both

quashed with liberty to proceed against the petitioner strictly in accordance with law.

Title: Vijay Kumar Vs. State of Himachal Pradesh & others Page-662

Constitution of India, 1950- Article 226- Petitioners are the retired employees of the bank-

they claimed benefit in accordance with the Government Memorandum- respondent is a

creation of the statute and falls within the definition of the State - as per Rule 30(3)

employees of the respondent are entitled to the gratuity fixed by the Government of

Himachal Pradesh- Government had issued a notification enhancing the gratuity from 3.5

- 11 -

lacs to 10 lacs- this notification was made applicable to those who had retired or would be

retiring after 1.1.2006- Board of Directors issued a circular providing the enhanced gratuity

w.e.f. 24.5.2010- held that in case of conflict between Act, the Rules, and circulars,

provisions of the Act will prevail -Board of Directors could not have superseded the

provisions of the rules- therefore, the decision taken by the Bank that enhanced gratuity will

be given to the employees who had retired after 24.5.2010 cannot be sustained.

Title: R.B.S. Negi & ors. Vs. State of HP & others Page-537

Constitution of India, 1950- Article 226- Petitioners were appointed as Laboratory

Attendants in Baba Balak Nath College Chakmoh- their services were regularized in the year

1993- they claimed that they became eligible for the post of Junior Laboratory

Assistant/Junior Lecturer Assistant after the completion of five years services – they filed

representation but they were not regularized – respondents claimed that no funds were

provided by the State of Himachal Pradesh for running the college and the college was being

run on the basis of offerings made by pilgrims/devotees- there was no post to which the

petitioners could be promoted- held, that petitioners do not possess minimum qualification

for the posts and they are not entitled for the salary and the emoluments payable to Junior

Laboratory Assistant/Junior Lecturer Assistant- petition dismissed.

Title: Amar Nath & another Vs. State of H.P. & others Page-705

Constitution of India, 1950- Article 226- Respondent No. 2 sent a communication to respondent No. 3 regarding providing of road to sewerage treatment plant at Solan-

respondent No. 3 was requested to prepare documents for acquisition of the land- petitioner

is owner of the plot- a notification for acquiring the land was published in the news paper-

compensation of Rs. 26,981.49 per biswa was proposed- total amount of Rs. 35,19,965/-

was determined as compensation- proposed award was sent to Principal Secretary, I & PH- a

communication for de-notification of khasra number mentioned in the communication was

sent and the land was de-notified- held that the respondents had used the land for laying

down pipes and construction of chambers- respondent also admitted that necessary cutting

and dressing was undertaken on the land - no reason was specified for de-notification of the

land- papers for acquiring the land and pronouncing the award were sent, therefore, the

plea that possession was not taken over cannot be accepted- once the land has been

acquired and no award has been pronounced, the acquisition will not lapse- petitioner

cannot be deprived of his right to get compensation- once possession has been taken the

Department is not at liberty to withdraw from the acquisition- Writ petition allowed and

respondents No. 1 and 2 directed to grant necessary approval to draft award.

Title: Kanti Swaroop Mehta Vs. State of H.P. and others Page-429

Constitution of India, 1950- Article 226- Respondent No. 3 was selected as Gram Rojgar

Sewak- petitioner challenged her appointment before Additional District Magistrate-

respondent No. 3 had obtained the highest marks followed by respondent No. 4- petitioner

had secured third position- petitioner contended that diploma in the computer application

and the certificate of experience produced by respondent No. 3 were false and fabricated-

respondent No. 3 had produced diploma showing her proficiency in computer data entry-

she had five years experience and two marks were awarded for each year‘s experience-

affidavit of the owner of the institution was filed regarding the correctness of the experience

certificate- further, affidavits of the students who studied with respondent No. 3 were also

filed- merely because respondent No. 3 had acted as a part time agent of Mahila Pradhan

Kashetriya Bachat is not sufficient to doubt the affidavits- petition dismissed.

Title: Rajesh Kumar Vs. State of H.P. & Others Page-79

- 12 -

Constitution of India, 1950- Article 226- Respondent was appointed as Assistant Professor

– her appointment was quashed on the ground that her selection and appointment were

arbitrary- petitioner was appointed in her place- petitioner had suffered at the hands of the

University- when a candidate is deprived of the appointment illegally, he is deemed to have

been appointed from the date of the denial - direction issued to treat the petitioner to be

appointed on regular basis.

Title: Dr. (Ms.) Monica Sharma Vs. Dr. Y.S. Parmar University of Horticulture & Forestry,

Nauni and others Page-491

Constitution of India, 1950- Article 226- Respondents No. 2 to 4 issued an advertisement

for the appointment of distributor of LPG- respondent No. 5 was declared as a selected

candidate- petitioner contended that respondent No. 5 did not fulfill the eligibility criteria-

respondent No. 5 was lessee of the land along with his brother-in-law- the case of the

brother-in-law was rejected on the ground that show room and godown did not fulfill the

criteria specified by respondents No. 2 to 4- respondent No. 5 and Sanjay Kumar were not

free to assign, transfer, sublet, underlet, or part with possession of the property as per the

lease deed – respondents No. 2 to 4 stated that all the applicants including petitioner were

given a chance to remove deficiency- respondent No. 5 was considered eligible on the basis

of experience and the documents submitted by him- status of respondent No. 5 and Sanjay

Kumar was that of joint tenants and not tenant in common – mere execution of the affidavit

will not bring out the partition without the consent of the lessor- respondent No. 5 was asked to verify her share including the dimension of the land for show room as well as

godown- certificate was issued by the patwari, which was counter-signed by the Naib-

Tehsildar specifying the length and width of the land offered by respondent No. 5 as 26 mtr

x 35.3 sq. mtrs- however, patwari and Naib-Tehsildar appeared before the High Court and

admitted that since the lease deed was jointly executed, the share of the lessee would be

equal and the Revenue Authorities are not competent to determine the share, unless

specified in the documents- this shows that mischief was committed by the authorities while

issuing the certificates- petition allowed and the allotment made in favour of the respondent

No. 5 quashed- Government directed to take departmental action against the patwari and

Naib-Tehsildar.

Title: Vandana Kumari Guleria & anr Vs. Union of India & others Page-382

Constitution of India, 1950- Article 226- State inviting bids for the construction of the

road – petitioners submitted their tender- technical and financial bids were opened- cases were being proceeded when the Tender Evaluation Committee recommended that entire

tender process be cancelled on the ground that some of the contractors were not aware of

the condition No. 26.5 contained in the tender notice- tender was cancelled on the

recommendation of the committee- held, that once tender notice was published, it does not

lie in the mouth of any person to say that he was not aware of the terms and conditions of

the policy- Committee had not stated that cancellation was necessary in the public interest –

administrative action of the State authority can be reviewed to prevent arbitrariness or

favourtism- tenderer has an enforceable right which cannot be taken away without any

justification- Court has power to examine the illegality and irregularity of the tender

process- commencement of fresh process will delay the construction of the road and will

deprive the public of the benefit of the right- petition allowed.

Title: Sandeep Bhardwaj Vs. State of H.P. and others (D.B.) Page-83

Constitution of India, 1950- Articles 14 and 226- Government of Himachal Pradesh

introduced a scheme/policy of free hold for a limited period of one month w.e.f. 15th January

- 13 -

to 15th February, 2007 and for six months w.e.f. 15.9.2012 to 14.3.2013 to regularize the

ownership of the land- introduction of the schemes for such a short period was not based

upon any intelligible differentia and violated article 14 of the Constitution – only few could

avail the benefit of those schemes due to shortage of time- petitioner had prayed for

issuance of writ of mandamus against the respondent to process and sanction his house

plan and also to cause changes in the revenue entries- held, that the schemes were in

violation of Article 14- Government directed to re-introduce the schemes on similar line as were introduced earlier in 2007 and 2013 without fixing unreasonable duration of its

operation and thereafter to consider the case of the petitioner within three months from the

date of the order as per schemes – writ petition disposed of.

Title: Karam Chand Sood (deceased) through his LRs: Smt. Ram Kumari Sood and others

Vs. State of H.P. and another Page-510

Constitution of India, 1950- Articles 226 and 227- Award passed by the Industrial

Tribunal-cum-Labour Court can be challenged before the High Court in case it is shown that

there are manifest errors or the order is contrary to the provisions of the law and the order

has been passed without jurisdiction.

Title: The Chairman Market Committee and another Vs. Geeta Ram and another

Page-485

Contempt of Courts Act, 1971- Section 2(b) - Respondents No. 1 and 2 have committed

contempt of the Court‘s order and no reply to the notice filed- Respondents tendered

unconditional apology and threw themselves at the mercy of the Court- similarly,

respondent No. 3 also tendered unconditional apology and submitted in writing not to

indulge in any such activity in future- unconditional apology accepted and further directions

issued.

Title: Municipal Corporation Vs. Dinesh Kuthiala and others (D.B.) Page-496

„H‟

H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971- Section 54-

Consolidation scheme was prepared in consultation with and on the advice of land owners

and the committee constituted under the Act- no objection was raised by the private

respondent but a complaint was made regarding the obstruction of his path- his dispute was

resolved and the path was again blocked on which a fresh complaint was made, which was

sent to SDO (Civil) for further action- Director Consolidation modified the consolidation

scheme- a writ petition was filed against this modification- order was upheld on the ground

that no objection was raised to the report of the Consolidation Officer and the petitioners

were estopped from questioning the same- Section 54 of the Act does not provide for a period

of limitation but the power should be exercised in a reasonable time- in the present case,

consolidation proceedings were completed in the year 1988 and revision was filed after 18 years- remedy for removing the obstruction in the path lies elsewhere and not under the Act-

Further, Director Consolidation had not given any opportunity to the parties to raise

objection, therefore, order set aside.

Title: Saraswati Devi & ors Vs. State of HP & ors. (D.B.) Page-641

H.P. Land Revenue Act, 1954- Section 123- An application for partition of the property was

filed- Assistant Collector Second Grade framed mode of partition and the file was sent to

Assistant Collector 1st Grade for further proceedings- Assistant Collector 1st Grade affirmed

the mode of partition- application was filed by the co-sharers claiming that some portion of

- 14 -

the land touched the road and all the co-sharers have equal right in the same- Assistant

Collector 1st Grade passed an order that reference sent to the Field Agency was not in

accordance with the mode of partition – appeal and revision preferred against this order

were dismissed - a writ petition was filed which was also dismissed- record shows that no

question of title was raised at the time of preparation of mode of partition- it was not

mentioned in the reference that land located adjacent to the road be also partitioned and,

therefore, Assistant Collector 1st Grade had rightly modified the reference order- appeal dismissed.

Title: Simrata Devi widow of Sh. Bhupinder Dutt and another Vs. Financial Commissioner

Revenue (Appeals) State of H.P. Shimla and others (D.B.) Page-276

Hindu Marriage Act, 1955- Section 13- Marriage between the parties was solemnized as

per Hindu rites and customs- wife started misbehaving with her husband and her in-laws-

she gave beatings to the mother of the husband and used abusive language against her

father-in-law – matter was reported to the Gram Panchayat and police- wife also filed a

complaint under Section 498-A read with Section 34 of I.P.C and left the home in the month

of October, 2001- wife admitted that no dowry was ever demanded by her husband or his

relatives – she was not given any beatings by her husband- wife had threatened the

husband to commit suicide by consuming poisonous substance- husband had filed a divorce

petition which was compromised- wife had filed a complaint against husband only when the

husband had filed a petition for divorce – it was duly proved that wife had caused mental and physical cruelty to the husband- she had left her matrimonial home without any

reasonable cause- held, that Court had rightly granted the divorce.

Title: Pushpa Devi Vs. Om Parkash Page-72

Hindu Succession Act, 1956- Section 14- Plaintiff claimed that he is co-owners in

possession of the suit land – earlier ‗P‘ was the tenant who had re-married and her tenancy

rights reverted to ‗S‘, the predecessor of the plaintiff- defendant claimed that ‗P‘ became the

absolute owner of the property under Section 14 of the Act and proprietary rights were

conferred upon the legal heirs of ‗P‘ in the year 1975- land was divided between ‗S‘ and ‗P‘-

limited tenancy rights would mature under Section 14- ‗P‘ was in possession of the property

and would become the owner- ‗P‘ was consistently shown in possession of the suit property

in the revenue record- suit was filed after 25 years of the attestation of the mutation and is

barred by limitation.

Title: Dharam Dass alias Dharam Singh Vs. Puran Dass and others Page-286

Hindu Succession Act, 1956- Section 14- ‗D‘ was owner of the suit property- he died prior

to 1948 leaving behind three widows J, S and S- J and S re-married and third widow

became limited owner of the property – she gifted the suit property on 21.4.1948 to ‗P‘- ‗P‘

sold the suit property- alienation was challenged and the suit was decreed on 26.4.1954-

plaintiffs being class-II heirs of ‗D‘ claimed that they are entitled to succeed to the suit

property- plaintiffs had duly proved that they were successors of ‗D‘ – ‗S‘ had life interest in

the suit property- plaintiffs being reversioners had a legal right to challenge the alienation –

improvement made after the decree will not benefit the defendants – widow had alienated the

property prior to the commencement of the Hindu Succession Act and the reversioners had

a right to file the suit.

Title: Kewal Ram (dead through LRs. Jeet Ram & ors.) Vs. Singh Ram & ors.

Page-261

- 15 -

Income Tax Act, 1961- Sections 44AE and 145(3)- Assessee filed a return declaring income

from the contract as well as running trucks on hire- the gross receipts were declared at

Rs.12.09 crores on which net income of Rs. 62,66,030/- was shown- income from the trucks

was declared on estimate basis- Assessing Officer held that accounts were incorrect and

incomplete- he rejected the books of accounts and estimated net profit at 8%- appeal was

filed by the assessee which was allowed by the Income Tax Appellate Tribunal- Department

preferred an appeal before the High Court- record shows that no separate accounts were maintained in respect of gross hiring receipts, diesel expenses and salaries of drivers and

helpers- assessee had failed to give any explanation except that his accounts were previously

accepted by the Assessing Officer which is not a valid explanation- there is no presumption

in Law about the correctness of continuing Income Tax Returns- assessment of each year

has to be made separately – in case a true picture of the profits and gains is made in the

account books, same should not be ordinarily disturbed but when the true picture cannot

be obtained, the Assessing Officer has a right to reject the books of accounts- Assessing

Officer had rightly passed the order- appeal allowed and order of Income Tax Appellate

Tribunal set aside while order of Assessing Officer upheld.

Title: Commissioner of Income Tax Vs. Rakesh Mahajan (D.B.) Page-359

Indian Evidence Act, 1872- Section 45- Plaintiff filed a civil suit for recovery of Rs. 7 lacs

on the basis of cheque – defendant pleaded that signatures on the reverse of the cheque did

not belong to him- application was filed by the plaintiff for sending signatures to the expert for comparison which was dismissed by the trial Court on the ground of delay- held, that

report of the expert would have helped in determining whether the signatures on the reverse

of the cheque were put by the defendant or not – this opinion is necessary for determination

of the dispute pending between the parties- application allowed.

Title: Manish Dharmaik Vs. Shyam Sharma Page-66

Indian Evidence Act, 1872- Section 115- Estoppel- The award was challenged by the

petitioner on the ground that workman was a contractual employee and his case was not

covered under Industrial Disputes Act- held, record shows that workman had filed original

application before the Administrative Tribunal prior to approaching the Industrial Tribunal-

cum-Labour Court and it was held by the Administrative Tribunal that matter was covered

under the Industrial Disputes Act- this order was never challenged by the petitioner and has

attained finality- secondly, a demand notice was also served upon the workman by the

petitioner and after failure of conciliation proceedings the matter was referred to Industrial Tribunal-cum-Labour Court- petitioner is now estopped from taking plea that case of the

workman is not covered under the Industrial Dispute Act and he is a contractual employee.

Petition dismissed.

Title: The Chairman Market Committee and another Vs. Geeta Ram and another

Page-485

Indian Penal Code, 1860- Section 302- Accused was student of IIT Rurkee and deceased

was student of IIT Delhi- they came to Shimla and stayed in a hotel- room was found locked

and was opened by the police- dead body of the deceased was found in the room- accused

claimed that he was in love with the deceased- deceased had committed suicide- Medical Officer found self inflicted injury on the person of the accused while the injury found on the

person of the deceased could not have been self inflicted- nature of the injuries found on the

person of the accused were simple and cannot lead to an inferences that he had tried to

commit suicide – deceased was found to have consumed alcohol- the fact that accused had

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run away from the scene of the crime falsifies his version that he had tried to commit

suicide- held, that in these circumstances, prosecution version was proved beyond

reasonable doubt and the accused was rightly convicted.

Title: Gaurav Verma Vs. State of Himachal Pradesh (D.B.) Page-394

Indian Penal Code, 1860- Section 302- Deceased was shot by the accused- post mortem

examination showed that she had sustained injury which could have been caused by means of fire arm- bullets were recovered from the body at the time of post mortem examination-

country made pistol was also recovered from the accused- testimonies of eye-witnesses

corroborated each other- held, that in these circumstances, accused was rightly convicted.

Title: Sumit Kumar Sharma Vs. State of H.P. (D.B.) Page-132

Indian Penal Code, 1860- Section 302- Deceased was working in the shop owned by ‗R‘- he

left home but did not return- he made a call to his wife and stated that he would be reaching

home soon- he was found in an injured condition near the culvert and was taken to

hospital- he had sustained injury by some sharp object on the back of the head and left

ankle- he succumbed to the injuries prior to reaching hospital- accused were arrested and

weapon of offence was recovered at their instance- prosecution had not examined any

independent witness- it was stated by the prosecution that there was some financial dispute

but this was not established by the testimony of the wife of the deceased- version of the

prosecution that accused was last seen with the deceased was not proved on record satisfactorily- according to the report of FSL, quantity of ethyl alcohol of the blood was

209.81 mg%- thus, deceased was highly intoxicated and possibility of fall in a state of

intoxication cannot be ruled out - no examination was conducted to determine the blood

group- there was delay in recording the statements of witnesses- held, that in these

circumstances, prosecution version was not proved- accused acquitted.

Title: Satnam Singh alias Chint Ram Vs. State of Himachal Pradesh (D.B.)

Page-579

Indian Penal Code, 1860- Section 302- Deceased was working under the accused- accused

approached PW-25 – security guard noticed that hands of the accused were smeared with the blood- he also found blood drops on the ground where accused was standing- accused

informed PW-5 that some incident had taken place in his room in which deceased had

sustained injuries and there was a lot of blood- PW-5 informed PW-8 and PW-9 about the

incident- prosecution witnesses went to the room of the accused- the accused was standing

outside his door with one hand on his neck and another hand raised up- he was bleeding -

the deceased was lying on the floor and blood was found all around the room- accused and

deceased were taken to hospital where deceased was found dead- cause of death was ante

mortem injury- it was contended on behalf of accused that deceased had attacked the

accused and the accused had caused injury to the deceased to save himself – accused had

sustained injury on the neck which was not shown to be self inflicted – accused had not run

away and had not disturbed the crime spot- 159.82 mg% alcohol was found in the blood of

the deceased- this probablizes the defence taken by the accused that he had caused injuries

to the deceased in exercise of right of private defence- however, the accused had caused

more harm than was necessary- accused had no right to cause fatal injury to the deceased- accused convicted for the commission of offence punishable under Section 304(Part-I)

instead of Section 302 of I.P.C.

Title: Kuldeep Chand Vs. State of Himachal Pradesh (D.B.) Page-190

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Indian Penal Code, 1860- Section 302 read with Section 34- Accused murdered the

deceased and cut his dead body- they dumped parts of the body in a septic tank and put

the remaining parts in a gunny bag, which was concealed under the stones and cow-dung-

gunny bag was recovered by the villagers when the wife of the deceased observed foul smell-

accused ‗G‘ took a plea that deceased tried to rape her on which co-accused gave a blow to

the deceased- held, that right of private defence commences as soon as reasonable

apprehension of danger to body arises - this right does not extend to inflicting of more harm than what is necessary to be inflicted for the purposes of defence- accused ‗R‘ has to

probablize his defence and not to prove the same beyond reasonable doubt- the version of

the defence that deceased tried to rape the accused ‗G‘ on which injury was inflicted on his

person was not suggested to any prosecution witnesses and this fact was never disclosed to

any person- it was duly proved by the testimonies of the witnesses as well as by the

statements of the accused that deceased was last seen in the company of the accused-

burden was upon the accused to establish as to what had happened to the deceased-

accused had tried to destroy the evidence by concealing the dead body- recovery was effected

pursuant to the disclosure statements made by the accused – in these circumstances,

prosecution case was proved beyond reasonable doubt and the accused were rightly

convicted.

Title: Vinod Kumar & another Vs. State of H.P. (D.B.) Page-139

Indian Penal Code, 1860- Sections 302, 364, 201 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989- Section 3(2)(v)(vi)- Deceased was found

missing from her home and could not be found- earlier deceased had registered a rape case

against the accused – father of the deceased suspected the involvement of the accused-

subsequently, her dead body was found- dogs squad was called which led the police to the

house of the accused- two bottles of thyodine were recovered at the instance of the accused-

Medical Officer found that cause of death was strangulation with Dhatu- father of the

deceased had detected dead body – an inference can be drawn that he in collusion with I.O.

had tied Dhatu around the neck of the deceased- the fact that bottles of poison were

recovered by the I.O shows that he had no idea regarding the cause of death- testimony of

sister of the deceased that she had seen the accused in the company of the deceased was

not believable as she had not narrated the incident to any person- extra judicial confession

made by the accused was also not proved satisfactorily- mere motive is not sufficient to

implicate the accused- held, that accused was rightly acquitted by the trial Court.

Title: State of Himachal Pradesh Vs. Kamal Swarup (D.B.) Page-472

Indian Penal Code, 1860- Sections 302, 392, 328, 201, 473, 420 read with Section 34-

Accused hired a taxi on 3.12.2011 for visiting temples at Chintpurni, Jawalajji and Naina

Devi Ji and thereafter for being dropped at Rampur- deceased was owner of the Bolero and

Alto car- accused had checked in the guest house at Naina Devi Ji- dead body of the

deceased was discovered on 13.12.2011 at 9.45 am at Kiratpur- Bolero belonging to the

deceased was signaled to stop at Poanta Sahib- it was being driven by accused ‗K‘ - accused

‗G‘ and ‗H‘ were sitting in the vehicle- recoveries were effected on the basis of disclosure

statements made by the accused- it was duly proved that accused had hired taxi of the

deceased- it was also proved that vehicle was recovered from the possession of the accused-

accused had visited the guest house with the driver- time between the recovery of the dead

body and death was found to be 7-10 days by Medical Officer-recoveries were also proved by

the prosecution witnesses- thus, prosecution has succeeded in proving chain of

circumstances against the accused- accused convicted.

Title: Kalyan Singh and others Vs. State of Himachal Pradesh (D.B.) Page-34

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Indian Penal Code, 1860- Sections 302, 498-A and 506- Deceased was married to the

accused- accused and the deceased had a quarrel- accused brought the stove from the

kitchen and sprinkled kerosene oil on her and put her on fire- deceased asked the accused

to bring her clothes and to inform the ambulance but the accused did not so- villagers called

the ambulance- initially, deceased stated that she had caught fire due to bursting of stove –

but subsequently, she made a dying declaration that accused had put her on fire- accused

had also tried to commit suicide by putting kerosene oil on himself- prosecution witnesses consistently deposed that accused used to beat the deceased- deceased had received a

severe burn injury and had succumbed to the same- she had explained that initial

statement was made by her due to fear- dying declaration is sufficient to convict the accused

and no further corroboration is required – the fact that accused had tried to commit suicide

shows his guilty mind- husband and wife were alone in the room and it was for the accused

to explain as to how the deceased had received burn injury- theory of suicide is not

plausible – held, that accused was rightly convicted.

Title: Gangadhar Vs. State of Himachal Pradesh (D.B) Page-411

Indian Penal Code, 1860- Sections 353, 332 and 333- Complainant was posted as Driver

on the bus owned by HRTC- he was plying bus on Kullu-Ani route - when the bus reached

at Mangrot, he found the road blocked due to the cutting being carried out by labourers-

complainant requested the contractor and his labourers to clear the road- accused gave

beatings to the complainant due to which he sustained injuries and his clothes were also torn- he was rescued by PW-2 and the contractor- Medical Officer admitted that injury could

have been caused by way of fall- record shows that ‗S‘ was driver of the bus – there was no

evidence on record to show that complainant was driving the bus- log book was not

produced- name of the complainant was over written in the register- prosecution witnesses

were working in HRTC and are interested witnesses- independent witnesses had not

supported the prosecution version and had turned hostile- no test identification was

conducted- the contractor was not examined to prove that accused was employed as

labourer by him- initial version was that four labourers had given beatings to the

complainant but only two persons were arrayed as accused – version of the complainant

that he had recognized the accused after seven years in the Court, does not inspire

confidence – the circumstances are not proved to form unbroken chain- guilt of the accused

is not proved to the hilt- accused acquitted.

Title: Sunil Kumar Vs. State of H.P. Page-300

Indian Penal Code, 1860- Sections 363 and 376- Protection of Children from Sexual

Offences Act, 2012- Section 4- Prosecutrix was student of 9th class- she did not reach

home from the school on 14.5.2013- it was found on inquiry that she was seen with the

accused- she was found in the room of the accused – prosecutrix stated that accused had

told her that she was called by her grand-mother- she was taken to the room where she was

raped- testimony of the prosecutrix was corroborated by the witnesses- report of FSL also

corroborated the version of the prosecutrix – held, that accused was rightly convicted.

Title: Des Raj Vs. State of H.P. (D.B.) Page-665

Indian Penal Code, 1860- Sections 363, 366 and 376- Prosecutrix aged 14 years and

student of 9th class was enticed by the accused to have sex with him, on the pretext of

solemnization of marriage- statement of prosecutrix also supported by her friend - their

statements inspire confidence and have remained un-impeached – conviction of the accused

proper and sentence imposed is in proportion to the offence committed- no adequate and special reason for imposing of lesser sentence as action of the accused was deliberate and he

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was not victim of circumstances- accused had acquired age of majority and had no business

to play with the sentiments of child and abuse her to satisfy his lust.

Title: Dinesh Kumar Vs. State of Himachal Pradesh (D.B.) Page-571

Indian Penal Code, 1860- Sections 363, 376 and 506- Prosecutrix aged about 18 years had

left home on the pretext of undergoing training of tailoring course- PW-3 also left home for

Paonta Sahib- matter was reported to police and the missing girls were found in the premises owned by PW-2- an FIR was lodged at the instance of prosecutrix that accused had

enticed her on the pretext of marriage and had raped her. Accused had also threatened the

prosecutrix – record regarding the date of birth of the prosecutrix was not satisfactory –

prosecutrix had voluntarily travelled with her friends to Chandigarh where accused made

them to stay in a Gurudwara- prosecutrix had not made any complaint of sexual intercourse

to the police initially – even she had not disclosed this fact to her friends and the parents-

prosecutrix was aged more than 18 years- she was mature enough to understand the

implication of her action as well as action of the accused- she had travelled with the accused

and had stayed at different places- accused had not kidnapped the prosecutrix- held, that in

these circumstances, version of the prosecutrix did not inspire confidence and the accused

was rightly acquitted by the trial Court.

Title: State of H.P. Vs. Amrik Singh (D.B.) Page-653

Indian Penal Code, 1860- Sections 372, 376 (2)(g), 506, 120-B- Immoral Traffic

(Prevention) Act, 1956- Sections 5 and 6- Prosecutrix was called by ‗S‘ - she was asked to

accompany to the house of ‗R‘, daughter of ‗S‘- ‗R‘ took her to the house of someone where

she was raped- ‗R‘ gave her Rs. 1,000/-- prosecutrix was taken to a hotel where she was

again raped- ‗R‘ gave her Rs. 200/- and one mobile phone- prosecutrix was taken to a rest

house where she was raped by two person - ‗R‘ again gave her Rs. 500/- ‗R‘ also threatened

the prosecutrix- prosecutrix filed a written complaint narrating these incidents- date of birth

of the prosecutrix was recorded to be 10.6.1992 in the school leaving certificate- however,

record of the school, where prosecutrix was initially admitted was not produced in the

evidence- date of birth was also recorded in PW-9/A but this entry was made in ink pen,

whereas rest of the entries were made in ball pen – the person who exhibited the documents was not examined- the age of the prosecutrix was stated to be 15-17 years by radiologist

with the margin of 2-3 years and thus, prosecutrix is not proved to be a minor – prosecutrix

had not mentioned the specific dates and had reported the matter to the police belatedly- no

satisfactory explanation for delay was given - there were inter-se contradictions between the

FIR and the statement recorded by the Magistrate- there was no evidence that accused were

kept with their faces muffled after their arrest- I.O/SHO remained present during

identification, which made identification doubtful- held, that in these circumstances,

prosecution case was not established and the trial Court had rightly acquitted the accused.

Title: State of Himachal Pradesh Vs. Reeta Devi & others (D.B.) Page-124

Indian Penal Code, 1860- Section 376- Prosecutrix aged three years was raped by the

accused after she was taken on the pretext that sweets would be provided to her-

prosecutrix was found by PW-12 lying on the sand and was taken to Hospital- blood stains

were found on the clothes of the prosecutrix- injuries were found on her person which suggested sexual intercourse- testimony of the prosecutrix was trustworthy- there was no

reason to falsely implicate the accused in a heinous crime like rape- testimony of the

prosecutrix was corroborated by the testimonies of eye-witnesses and other independent

witnesses- held, that accused was rightly convicted.

Title: Ravinder Sahi Vs. State of Himachal Pradesh (D.B.) Page-16

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Indian Penal Code, 1860- Section 376- Prosecutrix was cutting grass, when the accused

came, caught hold of her and raped her- accused also threatened the prosecutrix not to

disclose the incident to any person and promised to marry her- prosecutrix became

pregnant and went to the house of the accused where she was abused- matter was reported

to the police - prosecutrix was major at the time of incident- she died subsequently and,

therefore, there was nothing on record to show whether she had consented or not- she had

made a statement in the proceedings for claiming maintenance but had not deposed anything about the incident- held, that in these circumstances, acquittal recorded by the

trial Court cannot be faulted- appeal dismissed.

Title: State of Himachal Pradesh Vs. Kamal Swarup Cr. Appeal No. 280 of 2009 (D.