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Wednesday, March 17, 2010

Baldev Singh v. State of Haryana
2009(1) LAW HERALD (P&H) 1 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. Justice Dr. Mukundakam Sharma
Criminal Appeal No.320 of 2007
Baldev Singh
v.
State of Haryana
{Decided on 01/12/2008}
For the Appellant : Mr. Swaraj Kaushal, Sr. Advocate, Mr. Jagjit Singh Chhabra and Mr. Jaswant Perroya, Advocates.
For the Respondent : Mr. T.V. George, Advocate.
IMPORTANT POINT
Circumstantial evidence--Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person.
(A) Criminal Law--Rape and Murder--Acquittal--Deceased went to fields to serve tea to her parents and did not return--Utensils and chappals of deceased found in the fields of appellant--Dead body of deceased found in field of one 'S'--Rape on deceased not proved--Extrajudicial Confession allegedly made by appellant not proved--However, trial court found that presence of injury on accused can be held to be sufficient to hold him guilty--High Court also held that presence of injured on his person can be said to be conclusive in its nature pointing towards the guilt of accused--Held; circumstances on which trial court and High Court relied cannot be determinative of fact that accused was responsible for commission of rape--Conviction set aside-- Penal Code, 1860, Section 376, 302 and 354. (Para 14-15)
(B) Evidence Law--Circumstantial Evidence--Basis of conviction--Onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea--The conditions precedent, before conviction could be based on circumstantial evidence, must be fully established are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established--The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused--|Evidence Act, 1872, Section 3. (Para 12)
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State of Punjab v. Daljit Singh
2009(1) LAW HERALD (P&H) 5 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice K.S. Garewal
The Hon’ble Mr. Justice Jitendra Chauhan
Crl. Appeal No. 239 DB of 2008 and Crl. App.832 SB of 2007 and Crl. App. 872 SB of 2007
State of Punjab
v.
Daljit Singh
{Decided on 21/10/2008}
For the Appellant: Ms. Gurveen Singh, Additional Advocate General, Punjab.
For the Appellant in Crl. Appeal No. 832 SB of 2007: Mr. S.K. Laddi, Advocate.
For the Appellant in Crl. Appeal No. 872 SB of 2007: Mr. Dhirinder Chopra, Advocate.
(A) Contraband--Search and Seizure--Search of truck, or any vehicle or any conveyance--It is not conducted under Section 50 of the Act but under Sections 42 & 43--Personal search of accused not conducted by the DSP--Consent memos were superfluous and were at all necessary--Accused acquitted--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 42, 43 & 50. (Para 17)
(B) Contraband--Investigation--Tainted investigation--Acquittal--The recovery memos relating to the recovery of truck and poppy husk, personal search memos, ground of arrest memos, recovery of the truck’s RC and consent memos bore FIR number at top--S.I. sent the police report on december 5, 2004 at 7.30 P.M. (Ex. P22)--FIR registered at 8.30 P.M.--Time given in report Ex. P22 is the time when DSP reached the spot to begin the search of the truck--Therefore, the documents prepared before the report was sent at 7.30 P.M.--Otherwise documents would not have the number of FIR embrossed them--Accused, acquitted on this ground--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15. (Paras 12 & 17)
(C) Contraband--Investigation--Defective Investigation--Acquittal--Recovery of 80 bags of poppy husk (28 quintals) from a truck--The joint statement of the three accused conveying their consent for their search by a gazetted officer--D.S.P. did not conduct personal search of the accused, which section 50 of the Act requires--Independent witness not examined by the prosecution who was produced as a defence witness--Appellants were not given chance to rebut the presumption of conscious possession when their statement was recorded under Section 313 Cr.P.C.--Failure of police to follow the procedure for keeping the recovered contraband free from tampering--The documentation of investigation was done much later at the Police Station--Most of the procedural safeguards were flouted--Credibility of the I.O. is lacking--Conviction and sentence set aside--Appeal accepted--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15. (Paras 10, 12, 14, 16 to 18)
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Bhagwan Singh v. Financial Commissioner, Pb. Chd.
2009(1) LAW HERALD (P&H) 11
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajive Bhalla
C.W.P No. 5343 of 2002
Bhagwan Singh
v.
Financial Commissioner, Appeals-I, Punjab Chd.
{Decided on 22/08/2008}
For the Petitioner: Mr. M.S. Virk, Advocate for Mr. P.S. Thiara, Advocate.
IMPORTANT POINT
Lambardar--Minor errors in evaluating the respective merits--Cannot be good ground to set aside the choice of the Collector.
(A) Revenue Law--Lambardar--An appointment to the post of Lambardar cannot be made on the basis of hereditary claims--|Punjab Land Revenue Rules, 1909, Rules 15(a), 17 (ii). (Para 8)
(B) Revenue Law--Lambardar--Appointment of--Choice of the Collector is final till such time as the aggrieved party establishes that the order, passed by the Collector, is perverse, violates any statutory provisions or is so arbitrary as to warrant interference--Minor errors in evaluating the respective merits cannot be good ground to set aside the choice of the Collector--|Punjab Land Revenue Rules, 1909, Rules 15(a). (Para 9)
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Haryana Vidyut Parsaran…. v. M/s. Super Star Grit Udyog
2009(1) LAW HERALD (P&H) 13 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. Justice Dr. Mukundakam Sharma
Civil Appeal No. 6618 of 2008
Haryana Vidyut Parsaran Nigam Ltd.
v.
M/s. Super Star Grit Udyog
{Decided on 11/11/2008}
For the Appellants : Mr. Neeraj Kumar Jain, Mr. Sanjay Singh, Mr. Sandeep Chaturvedi and Mr. Ugra Shankar Prasad, Advocates.
For the Respondent : Mr. Manoj Swarup, Mr. Akshat Goel, Mr. Uday Gupta and Mr. Kamal Mohan Gupta, Advocates.
(A) Electricity Law--Theft of Electricity--Nigam imposed fine of Rs. 11.32 lakhs--Civil suit challenging the penalty--Nigam challenging the maintainability of suit in view of Haryana Amendment Act 4 of 1998, barring courts to take cognizance of matter pertaining to payment of charges--Effect of amendment not considered by trial Court and High Court--Matter remitted to decide the question of maintainability of suit--Electricity Act, 1910, Section 24(1) (As amendment by Haryana Amendment Act, 4 to 1998).
(B) Electricity Law--Theft of Electricity--Fine imposed by authorities--No notice was required nor it was necessary that reference be made to electrical inspector--Electricity Act, 1910, Section 24. (Para 7)
--------------------
Suresh v. State of Haryana
2009(1) LAW HERALD (P&H) 16 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice M.M. Kumar
The Hon’ble Mrs. Justice Sabina
CWP No. 3299 of 2007
Suresh
v.
State of Haryana
{Decided on 14/05/2008}
For the Petitioner: Mr. Mukesh Verma, Advocate.
For the Respondents No.1 to 4: Ms. Mamta Singhal Talwar, A.AG., Haryana.
For the Respondent No.5: Mr. Ashwani Talwar, Advocate.
Torts Law--Un-natural death--Electrocution--Payment of compensation--As per report of Tehsildar petitioner's husband was bread earner of the family--He died due to electrocution during subsistence of the insurance policy-- The only thing required to be ascertained by the Assurance Company was as to whether the deceased was bread earner of the family or not--Claim is fully covered under the scheme--Instant petition allowed-
ON FACTS
In lump sum to insure all the families of the State of Haryana subject to certain conditions--Although the ration card showed the deceased to be the head of family but in the details of the family members, the relationship of the deceased with the head of family was mentioned as ‘son’.--The insurance was available to the persons between the age of 18 to 80 years--The word ‘Head of the Family’ does not appear in the MOU.--Mother of deceased has shown as head of family in the ration card--Deceased’s father already died in the year 2001--Compensation denied on the ground that deceased was not the head of family--The ground put forth by the Assurance Company for rejecting the claim, held baseless--|Devi Rakshak Scheme (Chaudhary Devi Lal Jan Suraksha Beema Scheme. (Paras 6 to 8)
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Ashok Kumar v. Jasbir Kaur
2009(1) LAW HERALD (P&H) 18
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Harbans Lal
F.A.O. No.4360 of 2007
Ashok Kumar
v.
Jasbir Kaur
{Decided on 07/11/2008}
For the Appellant: Mr. H.K. Arora, Advocate.
For the Respondent No.5: Mr. M.S. Lobana, Advocate.
For the Respondent No.6: Mr. Vivek Singal, Advocate.
IMPORTANT POINT
Accident--Award passed against registered owner, whereas he had sold vehicle before accident--Award set aside as he was not arrayed as party in claim petition.
Accident Law--Registered owner--Vehicle was sold and delivered by appellant to respondent--Tribunal passed award in favour of claimant, recoverable either from registered owner, transferee or Insurance company--Whereas appellant was neither arrayed as respondent in claim petition nor has been afforded any opportunity of being heard--The cardinal canons of natural justice contemplate that no one should be condemned at one’s back--Appeal allowed--Award set aside--Matter to be decided afresh--|Penal Code, 1860, Section 279.
----------------------
State of Punjab v. Avtar Singh
2009(1) LAW HERALD (P&H) 21 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. JusticeC.K. Thakker
The Hon’ble Mr. JusticeLokeshwar Singh Panta
Criminal Appeal No. 1064 of 2003
State of Punjab
v.
Avtar Singh
{Decided on 21/10/2008}
For the Appellant : Mr. Kuldip Singh, Mr. R.K. Pandey, Mr. T.P. Mishra and Mr. H.S. Sandhu, Advocates.
For the Respondent : Mr. Varinder Kumar Sharma, Advocate.
(A) Criminal Law--FIR--Delay in lodging--It cannot be laid as a rule of universal application that whenever there is delay in lodging the FIR and/or there is delay in despatching the report to the Elaka Magistrate and/or the medical evidence is at some variance with the ocular evidence; the prosecution has to fail--|Criminal Procedure Code, 1973, Section 154. (Para 4)
(B) Criminal Law--Murder--Acquittal--There was considerable delay in lodging FIR and considerable unexplained delay in sending the report to Elaka Magistrate--Evidence of eye witness was not credible and cogent--Medical evidence was at variance with ocular version--Acquittal upheld--|Penal Code, 1860, Section 302. (Para 4)
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Naresh Kumar v. State of Haryana
2009(1) LAW HERALD (P&H) 22
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S.D. Anand
Criminal Appeal No.97-SB of 1998 & Criminal Appeal No.107-SB of 1998
Naresh Kumar
v.
State of Haryana
{Decided on 16/12/2008}
For the Appellant in Criminal Appeal No.97-SB-1998: Mr. Parmodh Saini, Advocate as Amicus Curaie.
For the Appellant in Criminal Appeal No. 107-SB of 1998: Mr. Maharaj Kumar, Advocate.
For the Respondent-State: Mr. S.S.Mor, Sr. DAG, Haryana.
(A) Criminal Law--Rape--Acquittal--Birth certificate of prosecutrix not placed on record--Age of prosecutrix ‘V’ and ‘M’ not proved--Evidence show that it was all consensual affair, as between prosecutrix ‘V’, ‘M’ and the appellants--Conviction set aside--|Penal Code, 1860, Sections 376, 366, 363. (Para 11)
(B) Criminal Law--Rape--Determination of age of prosecutrix--School admission form--Birth certificate of prosecutrix not proved--The persons who got the prosecutrix admitted in school not examined--No birth record pertaining to prosecutrix V and the prosecutrix M was produced--There is no affirmative evidence that their birth was not notified--There is no proof on the record to indicate the basis where upon the date of birth of prosecutrix V and prosecutrix M had been recorded in the school admission form--Held; Prosecution has not been able to prove the age of prosecutrix--Conviction set aside--|Penal Code, 1860, Sections 376, 366, 363.
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Mandip Singh v. State of Punjab
2009(1) LAW HERALD (P&H) 25
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Crl. Appeal No.103-SB of 1994 And Crl. Appeal No. 1077-SB of 2000
Mandip Singh
v.
State of Punjab
{Decided on 30/10/2008}
For the Appellants, in both the Criminal Appeals: Mr. Sandeep Mann, Advocate.
For the Respondent, in Both the Criminal Appeals: Mr. Shilesh Gupta, DAG, Punjab.
(A) Contraband--Independent witness--Chance Recovery--18 bags each containing 30 kg 250 grams poppy husk found lying in tractor trolley covered under dry paddy straw--Nothing on record that at time of recovery independent witness was available but was not intentionally and deliberately joined--Mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15. (Para 10)
(B) Contraband--Sample--Sample parcels sent to chemical examiner found quantity sufficient for conducting analysis--No prejudice caused to an account of taking only one sample from each bags--Contention that two samples from each bags should be taken not tenable. (Para 12)
(C) Contraband--CFSL form--Link evidence--CFSL form not prepared at spot by I.O.--But prepared later on at time of sending parcels to chemical examiner--Not illegal. (Para 12)
(D) Contraband--Sample--Delay in sending--Delay of 9 days in sending sample to chemical examiner--Proved from other evidence that none tempered with samples until same reached office of chemical examiner--Report of chemical examiner also proves that seals on exhibits were intact on arrival till the time of their analysis and agreed with specimen impression of the seals--No challenge to report of chemical examiner--Report per-se admissible in toto under section 293 of Cr.P.C.--Other evidence produced by prosecution cogent, convincing, reliable and trust worthy--Mere delay not sufficient to come to conclusion that sample parcels were tempered with--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18.
(E) Contraband--Conscious possession--18 bags containing poppy husk found lying in trolley--One accused was driver of tractor and others were sitting on bags--Accused failed to explain as to how bags were lying in trolley and to which destination same was being transported--It was not small quantity which could escape notice of accused--Once possession of accused and their control over contraband is proved statutory resumption under Section 54 and 35 arises that they were in conscious possession--Accused failed to rebut said presumption during cross-examination of prosecution witnesses or by leading defence evidence--Trial Court right in holding that they were in conscious possession of contraband--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 54 & 35. (Para 15)
(F) Contraband--Conscious possession--Plea only of false implication taken by accused--They failed to take plea that they did not know contents of bags lying therein--Accused failed to rebut statutory presumption of conscious possession of contraband--Thus, their conscious possession in respect of contraband proved--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 54 & 35. (Para 15)
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Collector, Land Acquisition v. Jaswant Singh
2009(1) LAW HERALD (P&H) 34 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Dr. Arijit Pasayat
The Hon’ble Mr. Justice Dr. Mukundakam Sharma
Civil Appeal No. 5640 of 2008
Collector, Land Acquisition
v.
Jaswant Singh
{Decided on 15/09/2008}
For the Appellants : Mr. K.K. Khurana, A.A.G., Mr. A.K. Mehta and Mr. Ajay Pal, Advocates.
For the Respondents : Mr. Anis Ahmed Khan, Advocate.
Land and Property Law--Acquisition of land--Interest on solatium--Reference Court held interest on solitum not payable to respondent--Executing Court held respondent entitled for same--High Court upheld order of Executing Court--Impugned order set aside--Factual position of case not noted by High Court--Case remitted to be considered in light of Gurpreet Singh's case 2001(7) SCC 211--Land Acquisition Act, 1894, Section 23. (Para 6)
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Ravinder Pal Singh v. Surinder Kumar
2009(1) LAW HERALD (P&H) 36
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
FAO No.680 OF 2000 And FAO No. 681 OF 2000
Ravinder Pal Singh
v.
Surinder Kumar
{Decided on 09/12/2008}
For the Petitioners: Mr. Parveen Kataria, Advocate.
For the Insurance Co.: Mr. R.M. Suri, Advocate.
(A) Accident Law--Compensation--Claim petition by brothers--Father and brother died in accident--Both the deceased paying Income Tax--Deceased brother was unmarried--He would have played an important role in supporting the family offering emotional and physical support to his younger siblings--Compensation assessed @Rs.1500/- P.M.--Multiplier of 10 applied--Amount assessed at Rs.1500 x 12 x 10 = 1,80,000/-.--|Motor Vehicles Act, 1988. (Para 4)
(B) Accident Law--Multiplier--Deceased was person between 50-55 years of age--Having income more than what is set out in the schedule II to the Motor Vehicle--Appropriate multiplier to be ‘12’--|Motor Vehicles Act, 1988.(Para 4)
(C) Accident Law--Compensation--Petition on behalf of children of accused--Appellants are young in age--Became orphans during the time of trial--Deceased had lucrative income--Paying income tax--T.D.S. certificate filed--Monthly income ranging between Rs.13,000/- to Rs.14,800/-.--Deceased must have contributed at least Rs.5000/- towards his children--Multiplier of 12 applied--Dependency assessed at Rs.5000/- PM--Compensation assessed Rs.5000 x 12 x 12 =7,20,000/-.--|Motor Vehicles Act, 1988.
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Chand Singh (dead) through L.R. v. Darbara Singh
2009(1) LAW HERALD (P&H) 39
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K. Sharma
CR No.3007 of 1991 (O&M)
Chand Singh (dead) through L.R.
v.
Darbara Singh
{Decided on 16/12/2008}
For the Petitioner: Mr. IPS Doabia, Advocate.
For the Respondents: Mr. K.S. Sivia, Advocate.
(A) Civil Procedure--Exparte decree--Setting aside of--Limitation--Exparte decree passed on 16.1.1986--Fact of exparte came to knowledge of petitioner on 9.10.1987--Application for setting aside exparte decree moved on 27.11.1987 i.e. after one month and 18 days whereas the application required to be filed within 30 days--Certified copy made available on 13.11.1987--Court below dismissed the application as time barred--Petitioner failed to prove the date of knowledge--He did not appear in witness box--Plea that period taken for getting certified copy of the order is to be excluded--Plea rejected--Held; Interalia;
(i) Section 12 (2) of the Limitation Act would not be applicable to an application moved for setting aside ex parte decree.
(ii) The fact as to when the petitioner came to know about the decree was personal to the principal and therefore, could not be deposed by the power of attorney--|Civil Procedure Code, 1908, Order 9, Rule 13--Limitation Act, 1963, Section 12(2).
(B) Civil Procedure--Holder of power of attorney--Expression “act”--The word “act” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument--The term “acts” would not include deposing in place and instead of the principal--Power of attorney cannot depose about the facts which are within the personal knowledge of the principal--|Civil Procedure Code, 1908, Order 3, Rule 1 & 2. (Para 18 & 23)
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Jatinder Singh v. Mehar Singh
2009(1) LAW HERALD (P&H) 45 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Tarun Chatterjee
The Hon’ble Mr. Justice Aftab Alam
Civil Appeal No. 5781 of 2008 with
Contempt Petition © No. 57 of 2008 in SLP © No. 18759 of 2006
Jatinder Singh & Anr. Minor Through Mother
v.
Mehar Singh
{Decided on 19/09/2008}
For the Appearing Parties : Mrs. Amita Gupta, Mr. R.K. Talwar and
Mr. S.L. Aneja, Advocates.
IMPORTANT POINT
Additional Evidence--When an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits.
Civil Procedure--Additional Evidence--While deciding second appeal High Court failed to decide whether additional evidence could be permitted to be admitted into evidence--Held; When an application for acceptance of additional evidence under Order 41 Rule 27 of the C.P.C. was filed by the appellants, it was the duty of the High Court to deal with the same on merits--Matter remitted to be decided afresh--|Civil Procedure Code, 1908, Order 41 Rule 27. (Para 4)
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Harbans Lal v. State of Punjab
2009(1) LAW HERALD (P&H) 46 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Jaswant Singh
C.W.P. No. 14651 of 2008
Harbans Lal
v.
State of Punjab
{Decided on 26/11/2008
For the Petitioner: Mr. H.S. Sethi, Advocate.
For the Respondents No.1 and 2: Mr. M.S. Sindhu, Addl. A.G., Punjab.
For the Respondents No.4 to 14: Mr. A.S. Jattana, Advocate.
IMPORTANT POINT
Municipalities--Meeting--Quorum--There is no requirement of quorum for first meeting in which President and Vice-President of Municipality are to be elected.
(A) Municipal Law--Meeting--Quorum--There is no requirement of quorum for first meeting in which President and Vice-President of Municipality are to be elected--|Punjab Municipal Act, 1911, Section 24(2) and 20--Punjab Municipal (President and Vice-President) Election Rules, 1994, Rule 3--Election of President and vice President. (Para 17)
(B) Municipal Law--Election of President and Vice President--Reservation--Candidate elected as Municipal councilor from seat reserved for scheduled caste category cannot be held to be ineligible to contest election of office of President which is meant for General Category--|Punjab Municipal Act, 1911, Section 24(2) and 20--Punjab Municipal (President and Vice-President) Election Rules, 1994, Rule 3--Punjab State Election Commission Act, 1994, Sections 55. (Para 9)
(C) Municipal Law--Election of President and Vice President--A MLA, who is ex-officio member though not eligible to contest election of office of President and Vice President is eligible to participate in election--|Punjab Municipal Act, 1911, Sections 12 and 20--Punjab Municipal (President and Vice President) Election Rules, 1994, Rule 3. (Para 11)
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Anokh Singh v. Punjab State Election Commission
2009(1) LAW HERALD (P&H) 57 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Jaswant Singh
C.W.P. N o.7727 of 2008
Anokh Singh
v.
Punjab State Election Commission
{Decided on 05/12/2008}
For the Petitioner: Mr. J.S. Toor, Advocate.
For the Respondent: Mr. N.D.S. Mann, AAG, Punjab.
For the Petitioner: Mr. Dharminder Singh, Advocate, for Mr. B.S.Sewak, Advocate.
For the Respondents No.1 and 2: Mr. N.D.S. Mann, Additional Advocate General, Punjab.
For the Petitioners: Mr. Surinder Garg, Advocate.
For the Petitioner: Mr. Vikas Bahl, Advocate.
For the Petitioner: Mr. K.S. Boparai, Advocate.
For the Respondent No.5: Mr. Vikas Singh, Advocate.
IMPORTANT POINTS
Member of Panchayat--Office of Lambardar is an office of profit under State Government--Is disqualified for being chosen as member of Panchayat.
Member of Panchayat--Anganwari workers are merely volunteers--Are not holding office of project under State Government--They are not disqualified for being chosen as member of Panchayat.
(A) Panchayati Raj Law--Lambardar--Election--Member of Panchayat--Eligibility to contest election--Lambardars are being approved by official of Government and they can be removed by official of Government--Their appointments are under the statute and are in overall control of Government--They are also receiving monthly honorarium which cannot be said to be compensatory in nature--Held; That office of Lambardar is an office of profit under State Government--Thus, in view of Section 11(g) of State Election Commission Act, a lambardar is disqualified for being chosen as member of Panchayat--|Constitution of India, 1950, Article 243 F--Punjab State Election Commission Act, 1994, Section 11--Punjab Panchayati Raj Act, 1994, Section 208. (Para 9)
(B) Panchayati Raj--Lambardar--Election--Member of Panchayat--Disqualification--Exemption of some offices from operation of disqualification--The State Legislature though competent to remove any disqualification in respect of the election of a Member of a Panchayat, has not exempted the office of Lambardar from the operation of the provisions of clause(g) of Section 11 of the State Election Commission Act--Merely because the office of Lambardar has been kept in the Schedule, which is deemed to be not holding an office of profit under the aforesaid provisions of Punjab State Legislature (Prevention of disqualifications) Act, 1952, it cannot be said that a Lambardar is also exempted from the disqualifications prescribed under clause(g) of Section 11 of the State Election Commission Act--|Constitution of India, 1950, Articles 102, 191 & 243F(1)--Punjab State Election Commission Act, 1994, Section 11--Punjab State Legislature (Prevention of disqualifications) Act, 1952, Section 2(a). (Para 19)
(C) Panchayati Raj--Lambardar--Election--Member of Panchayat--Disqualification--‘Office of Profit’--Anganwari workers appointed under a scheme floated by Central Government is not of permanent nature--They do not carry on any functions of the State--They do not hold post under a statute--Anganwari workers are merely volunteers--There is no possibility of misusing their office and taking advantage of same in the election--Held; That Aganwari workers are not holding office of project under State Government--They are not disqualified for being chosen as member of Panchayat--|Punjab Panchayati Raj Act, 1994, Section 208--Punjab State Election Commission Act, 1994, Section 11(9). (Para 9)
(D) Panchayati Raj--Election--Member of Panchayat--Disqualification--‘Office of Profit’--Following test laid down Supreme Court to find out whether office of profit is office under a Government :-
(i) Whether the Government makes the appointment;
(ii) Whether the Government has the right to remove or dismiss the holder;
(iii) Whether the Government pays the remuneration;
(iv) What are the functions of the holder? Does he perform them for the Government; and
(v) Does the Government exercise any control over the performance of those functions--|Punjab Panchayati Raj Act, 1994, Section 208--Punjab State Election Commission Act, 1994, Section 11(9). (Para 15)
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Om Parkash v. State of Punjab
2009(1) LAW HERALD (P&H) 69 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Satish Kumar Mittal
The Hon’ble Mr. Justice Jaswant Singh
C.W.P. No. 11484 of 2008 & C.W.P. No. 10447 of 2008
Om Parkash
v.
State of Punjab
{Decided on 03/10/2008}
For the Petitioners (in CWP No. 11484 of 2008): Mr. S.P. Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate.
For the Petitioner (in CWP No. 10447 of 2008): Mr. Nirbhay Garg, Advocate.
For the Respondent No.1: Mr. Amol Rattan Singh, Addl. A.G., Punjab.
For the Respondent No.2 (in CWP No. 11484 of 2008): Mr. Sanjiv Gupta, Advocate.
IMPORTANT POINT
Municipalities--Classification of Municipalities in categories on basis of income and population cannot be said to be arbitrary--Such classification does not violate equality clause.
(A) Municipal Law--Reservation of seats of members of scheduled castes/scheduled tribes, women and Backward clauses in Municipalities--Validity of--Classification--Classification of Municipalities in 4 categories on basis of income and population cannot be said to be arbitrary--Classification is made with an object to give better administration--Such classification does not violate equality clause under Article 14 of Constitution--|Punjab Municipal Act, 1911, Section 8-A--Constitution of India, 1950, Articles 14, 243-T--Determination of Number of Elected Number and Reservation of Offices of Presidents of Municipalities Rules, 1994, Rule 5, Schedules 3, 4, 5 and 6. (Para 12)
(B) Municipal Law--Classification of municipalities in different categories and then applying of 5% reservation for scheduled castes 5% for women and 2% for Backward class--Would not result in excessive reservation--|Punjab Municipal Act, 1911, Section 8-A--Constitution of India, 1950, Articles 14, 243-T--Determination of Number of Elected Number and Reservation of Offices of Presidents of Municipalities Rules, 1994, Rule 5, Schedules 3, 4, 5 and 6. (Para 13)
(C) Municipal Law--Official Languages--Contention that name of municipalities in schedule 3, 4, 5 and 6 are wrongly arranged serial wise in alphabetical order in English instead of Punjabi--Not tenable--Held; that until and unless a notification under Section 5 of the Languages Act is issued, all Acts passed by the Legislature of the State, Orders, Rules, Regulations and Bye laws issued by the State Government under the Constitution or under any law made by Parliament or the Legislature of the State, are not required to be in Punjabi, which is the official language of the State to be used in administration at the State level in Punjab--|Punjab Official Languages Act, 1967, Sections 3, 4, 5 & 6. (Paras 16 &17)
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