Caste
Consideration of -- Punjab Land Revenue Rules -- Appointment of Lambardar – Under Rule 15(d) and (e), personal influence, strength and importance of the community from which selection of headman is to be made, are relevant factors to be considered -- In such circumstances, Collector having mentioned the population of a particular community is not entirely de hors the controversy. Fakir Chand v. State of Haryana & others, 2011(3) L.A.R. 683 (P&H).
Category wise entitlement
Government Residences [Chandigarh Administration General Pool] Allotment Rules, 1996 – Allotment of Government accommodation – Held, no new house for any category/post should be earmarked unless the house already earmarked for such category/post has been vacated and placed in the general pool of the Chandigarh Administration for allotment in accordance with the Allotment Rules. Mrs. Asha Sharma v. Chandigarh Administration & Ors., 2011(3) L.A.R. 504 (SC).
Certified copy of Public document
Compromise, part of the decree is a public document -- A certified copy of a public document is admissible in evidence without being proved by calling witness -- Genuineness of certified copy not challenged in any manner, although the record of the Court has been proved to be burnt in a fire in Judicial Record Room – There is presumption as to the genuineness of such certified copy. Jaswant Singh v. Gurdev Singh & Ors., 2011(3) L.A.R. 632 (SC).
Chandigarh Allotment of Land to Co-operative House Building Societies Scheme
Allotment of flat by Society – Challenge to -- Eligibility of Individual – Date of Eligibility – Future acquisition – Effect of -- Petitioner submitted an affidavit on 8.6.1983 to the effect that he or his dependent family member did not own or possess any other residential allotment of a house in Chandigarh, Mohali or Panchkula -- Wife of the petitioner had been allotted a house at reserve price on 15.9.1983 – Held, eligibility of an individual to get a plot has nothing to do so far as future acquisitions are concerned -- Impugned orders cancelling allotment of a plot to the petitioners, quashed. Chandigarh Housing Board’s case 2007(2) RCR (Civil) 640, relied. Jai Bhagwan Sharma v. Chandigarh Administration and others, 2011(3) L.A.R. 42 (P&H DB).
Change of land use to residential house
Punjab Village Common Lands (Regulation) Act, 1961 -- Shamilat deh – Land reserved for school – Property which is set apart as a school still is shamilat deh and read with Rule 10-A, it is possible for the Panchayat to take a decision for use of the property for residential purposes. Kapur Singh and others v. Collector-cum-District Development and Panchayat Officer, Patiala and others, 2011(3) L.A.R. 382 (P&H).
Choice of Collector
Appointment of Lambardar – Collector is the appointing authority of the Lambardar -- It is the duty of the Collector to appoint such persons in the office of Lambardar, who are eligible and competent to carry out the duties efficiently -- He is in an advantageous position to examine the merits and demerits of the candidates -- Choice of the Collector in the matter of appointment of village Lambardar should not normally be interfered with, unless the Collector has taken a perverse view and has not exercised his choice judiciously Satpal v. State of Haryana & Ors., 2011(3) L.A.R. 636 (P&H).
Appointment of Lambardar – Decision of the Collector can only be upset when higher authorities or this Court finds that Collector has been mislead by irrelevant factors or has escaped any important material while considering the candidature or action of the Collector seems to be out of extraneous consideration. Amarjit Kaur v. Financial Commissioner (Co-operation), Punjab and others, 2011(3) L.A.R. 89 (P&H).
Appointment of Lambardar – Interfering with the choice exercised by the Collector on the ground that other candidates are more meritorious is not justified. Darshan Singh v. The Financial Commissioner Punjab & others, 2011(3) L.A.R. 291 (P&H).
Appointment of Lambardar – Neither Divisional Commissioner nor Financial Commissioner had recorded any finding that the Collector has over-looked any important material, which would have resulted in the different opinion or action of the Collector is out of extraneous consideration or Collector was mislead by placing irrelevant record before him -- Order of the Collector ought not to have been disturbed by the authorities below. Amarjit Kaur v. Financial Commissioner (Co-operation), Punjab and others, 2011(3) L.A.R. 89 (P&H).
Appointment of Lambardar – Notice of the appeal had not been served upon the appellant at the time when he sought the issuance of the sanad – No ground to view the appellant's conduct as suspicious – Respondent is slightly more educated than the appellant -- These facts by themselves are not sufficient to interfere with the choice of the Collector. Ram Sarup v. Sohan Lal, 2011(3) L.A.R. 653 (FC Pb.).
Appointment of Lambardar – Petitioner is younger and more educated than the respondent and also has a larger land holding -- Thus it can safely be held that there was no material irregularity or perversity in his appointment as lambardar by the District Collector – Held, No sufficient ground for the Commissioner to set aside the order of the District Collector. Sukhwinder Singh v. Duman Singh, 2011(3) L.A.R. 663 (FC Pb.).
Appointment of Lambardar – Respondent No.4 is more educated -- No disability or ineligibility in the merit of respondent No.4 can be traced -- Merit is comparative -- Grand father of respondent No.4 was a Lambardar, it cannot be ruled out that respondent No.4 has some experience of lambardari -- Discretion exercised by the District Collector is not perverse in any manner or arbitrary in effect -- No interference in the order of District Collector was called for. Kuldeep Singh v. State of Haryana & others, 2011(3) L.A.R. 81 (P&H).
Civil Court/ Rent Controller
Rent Laws -- Execution of eviction order – Objections – Whether the Rent Controller can execute the order of eviction as a decree which is executable only by a Civil Court – Held, Civil Judges are exercising the powers of the Rent Controllers, therefore, it is only a matter of nomenclature that when the rent petition is filed it is to be addressed to the Rent Controller and when execution is filed it is to be addressed to the Civil Court who is none-else then the Rent Controller -- Objections dismissed -- Direction issued to all the Rent Controllers in the States of Punjab, Haryana and Union Territory Chandigarh to mention in their orders that they are deciding the execution as Rent Controller-cum-Civil Court instead of hearing the objections as Rent Controller so that this kind of frivolous objection may not be raised in future leading to a litigation before this Court. Sewa Singh v. Shri Mohinder Singh, 2011(3) L.A.R. 359 (P&H).
Code of Civil Procedure, 1908 (V of 1908)
Order 6 Rule 17 – Rent laws -- Eviction petition -- Amendment in written statement -- During the pendency of appeal, the tenant filed an application for seeking amendment in the written statement for adding the ground that the tenant was in possession of a Chaubara as well @ Rs.500/- per month and has paid its rent, but could not take this plea in the written statement – Held, such a plea at the stage of appeal cannot be permitted to be taken by the tenant which was already in the knowledge of tenant at the time when the written statement was filed by him before the learned Rent Controller. Avtar Singh v. Tara Rani, 2011(3) L.A.R. 258 (P&H).
Order VII, Rule 11(c) – Punjab State Election Commission Act, 1994 (19 of 1994), Section 81, 103 – Punjab Panchayat Election Rules, 1994, Rules, 52, 53 – Election petition -- Deficiency in security deposit – Maintainability of appeal -- Rejection of plaint – Opportunity to deposit -- Procedure pertaining to trial of suits is provided in first schedule of the CPC -- Election petition can be equated with a plaint -- Held, as per the principles laid down in Order VII Rule 11 (c) CPC, in case the Tribunal finds that the security deposited by the election petitioner is deficient, before passing any order rejecting the election petition on that ground, opportunity should have been afforded to make the deficiency good and it is only on failure to comply with the direction, that the election petition be dismissed on that ground. Smt. Bhajan Kaur and another v. Gurmej Kaur and another, 2011(3) L.A.R. 162 (P&H).
Order 8 Rule 5 -- Haryana Urban (Control of Rent and Eviction) Act, 1973 (11 of 1973), Section 13(2)(ii)(a) – Sub-tenancy – Non denial of – Effect of -- Whether the tenant facing allegation of subletting, who has neither filed his written statement nor adopted the written statement of other co-tenants, is deemed to have admitted the averments made in the eviction petition in terms of Order 8 Rule 5 of CPC? -- Held, if the averments made in the plaint is not specifically denied by the defendant by not filing the written statement, then the averments are taken to be admitted in view of Order 8 Rule 5 of CPC. Shri Gopal Singh and another v. Gurdeep Singh and another, 2011(3) L.A.R. 312 (P&H).
Order 26 Rule 9 – Punjab Municipal Act, 1911 (3 of 1911), Section 172(1) – Local Commissioner – Appointment of -- Suit for permanent prohibitory injunction restraining the defendants from damaging, destroying and demolishing the shop in dispute -- In the suit, the main issue is, as to whether plaintiff has encroached upon the Municipal’s land or not – Plaintiff/respondent submitted building expert’s report containing the measurement of the shop in dispute -- In rebuttal, defendants/Municipal Council want to call measurement report through the Local Commissioner – Held, dispute is about the measurement of the shop in dispute, hence, application moved by the defendants/petitioners allowed to rebut the report filed by the plaintiff/respondent. Municipal Council, Phagwara & another v. Naranjan Singh, 2011(3) L.A.R. 79 (P&H).
Order 41 Rule 27 (1) (aa) – East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Eviction petition -- Additional evidence -- Additional evidence can be allowed even at the stage of argument i.e. till the Court becomes functuous officio, meaning thereby till the Court signs the judgment, the application can be entertained. Narinder Kumar v. Shri Sat Narayan Mandir through Trust Committee Hindu Panchayati Dharamshala and another, 2011(3) L.A.R. 244 (P&H).
Order 41 Rule 27 (1) (aa) – East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13 -- Eviction petition -- Additional evidence -- Tenant wanted to lead additional evidence and want to produce sanctioned site plan of the construction raised on the demised premises, order of sanctioning the site plan, two statements of the parties in dispute and an order of the Civil Court – Tenant is trying to produce on record those documents which have not been manufactured by him and are coming from the custody of the authorities either judicial or quasi judicial – Dismissal of the application by Rent Controller is unsustainable. Narinder Kumar v. Shri Sat Narayan Mandir through Trust Committee Hindu Panchayati Dharamshala and another, 2011(3) L.A.R. 244 (P&H).
Order XLI Rule 33 – Punjab State Election Commission Act, 1994 (19 of 1994), Section 77, 100 – Appeal – Question of facts – Jurisdiction of -- Section 100 of the Act provides that the appeal to High court against the order passed by the Tribunal shall be on law as well as on facts -- Appeal is continuation of proceedings, where the question of fact can also be gone into by the Appellate Court -- Order XLI Rule 33 CPC clearly provides that the Appellate Court can deal with the issues which may not have been raised in the appeal filed by the appellant and can grant relief even to the respondents or other party who may not have filed appeal. Smt. Bhajan Kaur and another v. Gurmej Kaur and another, 2011(3) L.A.R. 162 (P&H).
Order 41 Rule 33 -- Punjab Co-operative Societies Act, 1961 (25 of 1961), Section 56, 68 – Arbitration award -- Appeal – Appellate Court -- Power of -- Cooperative Society itself had not preferred an appeal against the award and there could not have been a modification for its benefit by casting the entire liability on the petitioner -- A power, which a Civil Court may have under Order 41 Rule 33 CPC cannot avail in a statutory appeal, which are governed by its own procedures. Jagir Singh v. Commissioner (Appeals) Jalandhar Division with Head Quarter at Chandigarh and others, 2011(3) L.A.R. 349 (P&H).
Section 47 -- East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 15(5), 17 – Eviction of tenant – Revision – Execution of eviction order – Objections – In revision, tenant made a request that he may be allowed six months' time to vacate the demised premises, ultimately, the revision petition was dismissed only on the ground that six months had already expired -- In these circumstances, tenant cannot be allowed to approbate and reprobate – Held, all objections which could have been raised before the High Court by the tenant are deemed to have been waived off and cannot be re-agitated in the execution application. Sewa Singh v. Shri Mohinder Singh, 2011(3) L.A.R. 359 (P&H).
Section 47 -- East Punjab Urban Rent Restriction Act, 1949 (III of 1949), Section 13, 17 – Eviction of tenant – Revision – Execution of eviction order – Objections – Rent Controller/Civil Court -- Whether the Rent Controller can execute the order of eviction as a decree which is executable only by a Civil Court in view of Section 17 of the Act – Held, Civil Judges are exercising the powers of the Rent Controllers, therefore, it is only a matter of nomenclature that when the rent petition is filed it is to be addressed to the Rent Controller and when execution is filed it is to be addressed to the Civil Court who is none-else then the Rent Controller -- Objections dismissed -- Direction issued to all the Rent Controllers in the States of Punjab, Haryana and Union Territory Chandigarh to mention in their orders that they are deciding the execution as Rent Controller-cum-Civil Court instead of hearing the objections as Rent Controller so that this kind of frivolous objection may not be raised in future leading to a litigation before this Court. Sewa Singh v. Shri Mohinder Singh, 2011(3) L.A.R. 359 (P&H).
Section 100 -- Punjab Courts Act, 1918 (6 of 1918) Section 41 -- Substantial question of law - Second appeal shall only lie to High Court u/s 100 C.P.C. on a substantial question of law – Though question of law was not framed at the time of admission of present appeal, however, High Court can formulate question of law as contemplated u/s 100 of the Code at any point of time before hearing of the appeal, even without amending the grounds of appeal -- It is the duty of the court to formulate substantial question of law while hearing the appeal u/s 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. Kamla Wati and others v. The Secretary, Rehabilitation Department, Government of India, New Delhi and others, 2011(3) L.A.R. 126 (P&H).
Collector’s rate
Indian Stamp Act, 1899 – Market Value -- It will be dangerous to allow for officials to adopt an ad hoc approach and make their own whimsical assessments of valuation even more than the Collector's rate -- It will spell out scope for arbitrariness, it shall not be permissible. Aggarwal Construction Company v. State of Punjab and others, 2011(3) L.A.R. 608 (P&H).
Indian Stamp Act, 1899 -- State is bound to produce material for justification of a higher levy and to call upon the private party to show materials to substantiate that the Collector's rate is not correct -- On the other hand, the Collector's rate itself is justification for a party to rely on -- Order of levy of additional stamp duty is quashed. Aggarwal Construction Company v. State of Punjab and others, 2011(3) L.A.R. 608 (P&H).
Common purpose
Punjab Village Common Lands (Regulation) Act, 1961 -- Gair Mumkin Goradeh – Unauthorised occupation – Eviction of -- As per revenue record, the land vests in the Gram Panchayat and is being used as Gair Mumkin Goradeh, which admittedly is a common purpose -- Eviction was passed by the Assistant Collector Ist Grade, on the basis of the demarcation report, which was upheld in appeal as well as in revision -- During pendency of the appeal, the disputed land was again demarcated and in the said demarcation also, the petitioner was found to be in illegal possession of land – Finding of facts recorded by both the courts below on the basis of two demarcation reports -- No ground to interfere. Bahadur Singh v. The Commissioner, Gurgaon Division, Gurgaon and others, 2011(3) L.A.R. 606 (P&H DB).
Comparative merits
Appointment of Lambardar – Power of Appellate Authority -- Candidate appointed by Collector was convicted u/s 188 IPC in the year 1998, and is less educated as compared to the petitioner and does not own any land in his name -- Petitioner, to the contrary, is ex-army personnel with commendations to his credit -- Service rendered to the country, while in the Army, cannot be ignored -- Petitioner owns approximately 18 kanals of land, and is more educated -- Commissioner did not commit any illegality in interfering with the order passed by Collector, considering the comparative merit, in peculiar facts and circumstances of the case -- Higher education, Ex-Army status, conviction and land holding are relevant criteria to be taken into account -- If this is not done, it shall be failure on the part of the appellate authority in exercising its appellate powers. Samai Singh v. State of Haryana & others, 2011(3) L.A.R. 406 (P&H).
Appointment of Lambardar – Power of Appellate Authority -- Commissioner is the appellate authority and is required to consider the facts and circumstances of the case, including comparative merit. Samai Singh v. State of Haryana & others, 2011(3) L.A.R. 406 (P&H).
Compensation
Punjab Village Common Lands (Regulation) Act, 1961 -- Unauthorized occupation – Eviction -- Appellant had taken the land on lease from the Gram Panchayat, when failed to vacate, he has become unauthorized occupant – Appellant is not entitled to get any relief from the Court – Gram Panchayat has not initiated any action against the appellant to realize an amount towards use and occupation of the land, the Gram Panchayat directed to move an application immediately and realize the charges from the appellant towards unauthorized occupation of the land for more than four decades. Nathu Ram v. Joint Development Commissioner and others, 2011(3) L.A.R. 82 (P&H DB).
Competent authority
Haryana Municipal Corporation Act, 1994 -- Punjab Scheduled Roads and Controlled Areas Act, 1963 – Controlled area – Land within Municipal limits -- Notice for demolition of construction – Held, since, the controlled area has been declared under the 1963 Act, therefore, the Town and Country Planner under the aforesaid Act is competent to issue notice to the petitioner for demolition. Smt. Poonam v. The District Town Planner, Karnal, 2011(3) L.A.R. 385 (P&H).
Compromise
Haryana Urban (Control of Rent and Eviction) Act, 1973 -- Unsafe and unfit for human habitation -- After reconstruction repossession will be given to tenant -- Withdrawal of petition -- Restoration of possession – Right of -- During the pendency of the eviction petition, a written compromise was arrived, according to which the tenant handed over vacant possession of the demised premises to the landlord on the condition that he would let it out to him again after demolition and reconstruction, on a monthly rent of Rs.1,250/- including house tax – No decree passed, rather the possession was handed over by the tenant to the landlord -- View that if there was no order of eviction by the Court and the petition was only dismissed as withdrawn it would not attract the provisions of Section 13(6) of the Act, would not be tenable -- Authorities below disallowing the restoration of possession to tenant -- Revision against the orders allowed and the impugned orders set aside. Chhotey Lal v. Rajender Kumar, 2011(3) L.A.R. 154 (P&H).
Compulsory bifurcation of society
Punjab Co-operative Societies Act, 1961 -- Revision – Maintainability of -- An order of compulsory bifurcation passed by the Registrar u/s 13(8) of the Act, against which no appeal has been provided u/s 68 of the Punjab Act, is revisable on an application filed by the aggrieved party u/s 69 of the Punjab Act. Jasbir Singh and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).
Condition and service of employees of Societies
Punjab Co-operative Societies Act, 1961 -- Service Rules of Societies – Nature of -- There categories of Service Rules can be framed to regulate the conditions of service of the employees of the Society -- In first category, a registered Society under the Societies Act can frame its own Service Rules to regulate the service conditions of its employees, the Rules may be binding between the Society and its employees -- Second category of the Rules is those rules which are formulated u/s 85(2) (xxxviii), which empower the Government to frame Service Rules for any Co-operative Society or for class of societies with regard to qualifications for employees of a Society or class of society and the conditions of service subject to which persons may be employed by Societies, such Rules so framed have the force of Statute and are deemed to be incorporated as a part of the Statute, whereas this principle does not apply to the first category of Rules framed by the Society because those Rules merely govern the internal management, business or administration of a society -- Similarly, there is third category of Rules known as Common Cadre Rules -- These rules could have been framed u/s 84-A of the Punjab Act which provide that an apex society may suo motu and when required to do so by the Registrar shall constitute a common cadre of all, or specified class of employee in the service of that society or in the service of the central societies which are members of the apex society or in the service of the primary societies which are members of the apex society -- Common Cadre Rules framed under sub-section (2) by the Registrar are also having the statutory colour and stand on the same footing as that of the Statutory Rules. Jasbir Singh and others v. Commissioner (Appeals), Jalandhar Division and others, 2011(3) L.A.R. 1 (P&H FB).
Condition for deposit of penalty
Interpretation of -- Punjab Village Common Lands (Regulation) Act, 1961 -- Appeal – No provision as to what is to happen to the amount so deposited for entertaining the appeal, if ultimately appellant succeeds -- Section not only bars the jurisdiction of the Civil Court but has given finality to the order passed and the same can not be questioned in any manner in any Civil Court -- In order to save the validity of this proviso, it may have to be read down for which there are precedents -- To avoid injustice and unnecessary expense, the proviso to the Section may have to be read down to include the right to waive the condition by the appellate Judge in an appropriate case. Ranjit Singh v. State of Haryana and others, 2011(3) L.A.R. 48 (P&H).
Constitution of India
Article, 3, 4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- What is the nature and scope of supplemental, incidental and consequential powers exerciseable by the Parliament under Article 4(1) of the Constitution wherever deemed necessary? – Held, supplemental, incidental and consequential provisions contained in a re-organization law within the meaning of Article 4(1) of the Constitution include the provisions for admission, establishment or formation of a State conforming to the democratic pattern conceived by our Constitution, however, the Parliamentary power to incorporate such provisions does not include the power to override the Constitutional scheme and framework. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Sikh Gurdwara Act, 1925 (8 of 1925), Section 45, 49, 92 -- Delegated legislation – Scope of – Sehajdhari Sikhs – Right to vote -- Notification dated 8.10.2003 issued by the Central Government purportedly in exercise of its powers u/s 72 of the Act, 1966, whereby Sections 49 and 92 of the Sikh Gurdwara Act, 1925 have been ‘amended’ to the extent of denying the Sehajdhari Sikhs their right to vote in the elections of Sikh Gurdwara Prabandhak Committee (SGPC) -- Whether the ‘modifications’ made in Sections 49 and 92 of the 1925 Act by the impugned Notification, achieve any supplemental, incidental and consequential object of re-organizing the erstwhile State of Punjab under the 1966 Act? – Held, subject notification does not throw any light on the legal necessity for its issuance, namely, the ‘functioning’ or ‘operation’ of the Board as an inter-State body corporate in the areas of its operation immediate before 1.11.1966 -- Impugned Notification does not satisfy the ingredients of Section 72 of the Punjab Re-organization Act, 1966 -- Notification dated 8.10.2003 quashed. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Does the Constitution assign any superior or special status to a law enacted by Parliament under Articles 3 & 4 as compared to those legislated under Articles 245 and 246? – Held, the Parliamentary power to enact a re-organization law under Articles 3&4 is plenary and unfettered by Article 246 of the Constitution -- The law enacted under Articles 3 & 4 of the Constitution is assigned a special status to the extent that it is immune from challenge on the ground of legislative competence though like any other legislation, such a law is also assailable if it violates other provisions of the Constitution -- On the other hand, the laws enacted by Parliament under Articles 245, 246 or 248 etc. of the Constitution can be put to judicial scrutiny on both counts. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Whether the Re-organization Act or an act of a delegate thereunder is deemed to be an integral part of the Constitution and not justiciable except on the ground of violation of the basic structure of the Constitution? – Held, a re-organization law is also justiciable, if challenged on the plea that it abrogates the Constitution. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Delegated legislation – Scope of – Amended in Act not permissible by Delegated legislation -- What is the scope and extent of the power exercisable by the Central Government while ‘modifying’ a Central Act, State Act or Provincial Act under Section 72(2) of the 1966 Act and does it amount and include the power to ‘amend’ such laws? – Held, the notification, order or a direction issued by a delegate under the Re-organization Act neither acquires the status of Constitutional provision nor of a Parliamentary legislation -- Section 72 of the 1966 Act empowers the Central Government to issue directions pertaining to the ‘functioning’ and ‘operation’ of an inter-State body corporate in the areas where it was functioning and operating immediately before the appointed day -- These directions may include that the ‘law’ governing the affairs of the body-corporate before it became an inter-State body corporate, shall continue to apply to it for the purpose of its ‘functioning’ or ‘operation’ in those areas which have gone out of jurisdictional control of the State under whose law such body-corporate was constituted -- Power exercisable by the Central Government under sub-Section (2) of Section 72 of the 1966 Act to ‘modify’ the Central Act, State Act or Provincial Act does not include the power to ‘amend’ such Acts. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Delegated legislation – Scope of -- Whether Section 72 of the 1966 Act is an enabling provision or it carries a ‘command’ to ‘modify’ the Laws and whether such ‘modification’ partakes the character of Parliamentary legislation? – The power to ‘modify’ a Statute delegated under Section 72 does not authorize to change any essential legislative features or the policy built into such Statute -- The Parliament while empowering the Central Government to ‘modify’ an Act under Section 72(2) neither intended nor could it delegate the power to ‘repeal’ or ‘amend’ an Act, for such a power under the Constitutional scheme is exercisable by the Legislature alone -- The delegated legislative power cannot run parallel to the principal legislation and must exercise its power within the framework of the Statute -- Section 72 of the 1966 Act is an enabling provision and the power to cause ‘exception’ or ‘modification’ in a Central Act, State Act or Provincial Act is not unguided, unfettered or unbridled and is subject to the inherent limitations to be read into the phrase that the “bodycorporate shall continue to function and operate in those areas in respect of which it was functioning and operating immediately before the appointed day” -- The directions issued by the Central Government under Section 72 though shall amount to ‘law’ within the meaning of Article 13(3)(a) of the Constitution but they do not partake the character of a Parliamentary legislation. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 3,4, 245, 246, 248, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Sikh Gurdwara Act, 1925 (8 of 1925), Section 45, 49, 92 -- Delegated legislation – Scope of – Sehajdhari Sikhs – Right to vote -- Notification dated 8.10.2003 issued by the Central Government purportedly in exercise of its powers u/s 72 of the Act, 1966, whereby Sections 49 and 92 of the Sikh Gurdwara Act, 1925 have been ‘amended’ to the extent of denying the Sehajdhari Sikhs their right to vote in the elections of Sikh Gurdwara Prabandhak Committee (SGPC) -- Whether the ‘modifications’ made in Sections 49 and 92 of the 1925 Act by the impugned Notification, achieve any supplemental, incidental and consequential object of re-organizing the erstwhile State of Punjab under the 1966 Act? – Held, subject notification does not throw any light on the legal necessity for its issuance, namely, the ‘functioning’ or ‘operation’ of the Board as an inter-State body corporate in the areas of its operation immediate before 1st November, 1966 -- Impugned Notification does not satisfy the ingredients of Section 72 of the Punjab Re-organization Act, 1966 -- Notification dated 8.10.2003 quashed. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 3,4,246 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Constitutional provisions in relation to the enactment of a Re-organization law and other allied issues are summarized as :-- a. the Parliament has got plenary legislative power to alter the boundaries of any State, to diminish its area and also the power to admit, establish or form new States -- b. the law-making power under Articles 3&4 is paramount and is not subjected to nor fettered by Article 246 or the Seventh Schedule of the Constitution -- c. the re-organization law enacted under Articles 2, 3 & 4 of the Constitution may alter or amend the First and the Fourth Schedules which set out the names of the States, description of their territories and allocation of seats in the Parliament etc. -- d. the Re-organization law may also have supplemental, incidental and consequential provisions to establish Legislative, Executive and Judicial organs of the State, expenditure and distribution of revenue, apportionment of assets and liabilities etc. etc.; -- the newly-formed State under a Re-organization law must conform to the democratic pattern ingrained in the Constitution -- f. the Parliamentary power to admit, establish or form a State is not meant to override the Constitutional scheme, hence no State can be formed or admitted by law which has no Legislative, Executive and Judicial organs -- g. the Constitutional validity of law made under Articles 3&4 though cannot be questioned on the ground of lack of legislative competence yet can be assailed if it violates the Constitutional provisions -- h. a re-organization law though effectuates alterations in First and Fourth Schedules of the Constitution but such changes do not amount to ‘amendment’ of the Constitution within the meaning of Article 368 nor such a law can be equated with the Constitution -- i. a re-organization law is perpetually operative and is not a ‘temporary Act’ and powers thereunder may be exercised any time save as it is abated by express or implied repeal. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 14, 40, 243B, 243C, 243N, 245 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 19 (Omission of Section 19 of the Act) -- Punjab Panchayati Raj (Amendment) Act, 2011 (13 of 2011), Section 1(2), 2 – No-confidence motion against Sarpanch – Omission of provision -- Amendment with retrospective effect – Validity of -- Deleting the provision for No Confidence Motion is not unconstitutional -- Section 1(2) of the Act to bring into force the Amendment Act retrospectively from 1.7.2010 is held to be arbitrary and ultravires the Constitution. Nirbhai Singh v. State of Punjab and others, 2011(3) L.A.R. 217 (P&H DB).
Article 226 – Land Acquisition Act, 1894 (1 of 1894), Section 4,5-A, 6, 11 18 -- Acquisition of land – Challenge to – Writ dismissed – Special leave petition dismissed -- Writ on other ground by other landowner – Maintainability of -- Writ petitions filed by the brothers had been dismissed on the ground of delay and the writ appeals and the SLP were dismissed, but that could not be made basis for denying relief because his brothers had neither questioned the diversification of land to private persons nor prayed for restoration of their respective shares -- Special leave petitions were summarily dismissed, such dismissal did not amount to this Court’s approval of the view taken by the High Court on the legality of the acquisition and transfer of land to private persons. M/s. Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, 2011(3) L.A.R. 481 (SC).
Article 226 – Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 19(4) -- Preliminary enquiry -- Suspension of Sarpanch/Panch -- Writ jurisdiction – Regular inquiry is pending, Court not inclined to invoke writ jurisdiction to see the correctness of the suspension order – Held, suspension order cannot be kept in force for indefinite period, direction given to conclude the final inquiry within 90 days in accordance with law, if inquiry is not complete/concluded within the time prescribed, suspension order shall be deemed having been revoked on the expiry of 90 days. Baldev Singh Panch v. State of Punjab and others, 2011(3) L.A.R. 256 (P&H).
Article 226 -- Writ Jurisdiction – Delay and laches -- Although, framers of the Constitution have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari is not hedged with any condition or constraint, in last 61 years the superior Courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim and deny relief to the petitioner if he is found guilty of laches -- Principle underlying this rule is that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution -- Another reason for the High Court’s refusal to entertain belated claim is that during the intervening period rights of third parties may have crystallized and it will be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and there is no cogent explanation for the delay -- No hard and fast rule can be laid down and no straightjacket formula can be evolved for deciding the question of delay/laches and each case has to be decided on its own facts. M/s. Royal Orchid Hotels Limited and another v. G. Jayarama Reddy and others, 2011(3) L.A.R. 481 (SC).
Article 226, 227 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 20 – Suspension of Sarpanch – Removal of Sarpanch – Writ jurisdiction -- Order containing valid reasons cannot legally be interfered with, in exercise of extraordinary writ jurisdiction, unless and until, the same is perverse and without jurisdiction -- As no such patent illegality or legal infirmity has been pointed out, therefore, the impugned order deserves to be maintained. Guddu Sarpanch Gram Panchayat Saunti and other v. State of Punjab and others, 2011(3) L.A.R. 180 (P&H).
Article 243 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 11, 12 -- Reservation of Sarpanch/Panch –Reservation to the posts of Sarpanch and Panches have to be notified as per the rural population ascertained at the last preceding census of which the relevant figures have been published – Last preceding census of 2001 is relevant – Reservation on the basis of population of the year 2008 is not only arbitrary but illegal as well. Sukhwinder Kaur v. State of Punjab and others, 2011(3) L.A.R. 279 (P&H).
Article 243 -- Punjab Panchayati Raj Act, 1994 (9 of 1994), Section 1, 11,12 – Interpretation of statute -- Words of an enactment are to be given their ordinary, popular and natural meaning -- If such meaning is clear and unambiguous, the effect should be given to a provision of a statute in the same manner whatever may be the consequences -- If the language of a statute is clear, the only duty of the Court is to give effect to it and the Court has no business to look into the consequences of such interpretation -- Court is under an obligation to expound the law as it exists and leave the remedy to the legislature, even if harsh conclusions result from such exposition -- Equally, it is now well recognized proposition of law that mandatory provisions and command of law have to be complied with in the same manner as envisaged and mandated by any statute and it cannot be interpreted otherwise. Sukhwinder Kaur v. State of Punjab and others, 2011(3) L.A.R. 279 (P&H).
Article 245 -- Punjab Re-organization Act, 1966 (31 of 1966), Section 72 – Delegated legislation – Nature of -- Law summarized -- a. essential legislative function comprising determination of the legislative policy and its formulation as a binding rule of conduct must be retained by the Legislature itself -- b. the Legislature may entrust ancillary and subordinate legislative powers to an authority but such entrustment cannot be unbridled or absolute -- c. the essential legislative policy and the guidelines to be kept in view by the delegate must be laid down by the Legislature itself -- d. the Parliament or State Legislature cannot abdicate their legislative functions to the delegate -- e. the excessive, uncontrolled or unguided delegation of powers is abhorrent to the theory of separation of powers under our Constitution as the Legislature can neither create a parallel Legislature nor destroy its Legislative power. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 245 -- Punjab Re-organization Act, 1966 (31 of 1966), Section 72 – Delegated legislation – Exercise of powers Law summarized -- The delegated legislative power is exercisable subject to observance of the binding principles by the delegate including that :– a. the authority exercising delegated power may modify a law but not the essential features of its declared legislative policy -- b. it is exercisable to implement and achieve the object(s) of a Statute within the framework of the legislative policy -- c. every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by such principal -- d. the delegate in the garb of making rules etc. cannot legislate on the field covered by the Act -- e. the power of ‘modification’ entrusted to a delegate does not include any change of policy and is restricted to alteration of such a character which keeps the legislative policy of the Act intact and introduces such changes as are appropriate to local conditions. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Delegated legislation -- It is wholly illogical to say that an action taken by the Executive as a delegate under the re-organization law becomes a part of the Constitution -- Since a re-organization law itself is the creation of the Constitution, an administrative or quasi-judicial action taken thereunder cannot be equated even to a degree with any provision of the Constitution. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Sikh Gurdwara Act, 1925 (8 of 1925), Section 45, 49, 92 -- Sehajdhari Sikhs -- Right to vote – Delegated legislation – Power of -- Right to vote conferred by a Statute is indubitably a legal right only and it can be taken away by the Legislature at will -- It is the Legislature alone that can re-determine qualifications for taking away the right to vote earlier given by it to that class or category of people -- Legislature neither can do so nor has it actually delegated its power to lay down the qualifications for the ‘Electors’ to the Executive under the 1925 Act nor such a delegation is inferable from Section 72 of the 1966 Act. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Delegated legislation -- It is trite that a subordinate legislation does not carry the same degree of immunity or privilege as is enjoyed upon by an Act of the competent Legislature – Action of a delegate can be questioned not only on the grounds on which the plenary legislation is assailable, it can also be probed on the ground that it does not conform to the Statute under which it is made -- Such a piece of legislation can also be tested on the plea of unreasonableness that no fair-minded authority could ever have made it. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Article, 368 – Punjab Re-organization Act, 1966 (31 of 1966), Section 72 -- Sikh Gurdwara Act, 1925 (8 of 1925), Section 45, 49, 92 -- Delegated legislation – Scope of – Sehajdhari Sikhs – Right to vote -- Whether prescription of eligibility for the ‘electors’ and/or the right to vote granted to a class of people by the Legislature under 1925 Act is an inseparable part of its legislative policy, and if so, can any change in the eligibility conditions or such a right be taken away in exercise of the delegated legislative powers? – Held, right to vote conferred on a class or category of people subject to their possessing the qualifications laid down in Sections 49 & 92, is an integral part of the legislative policy of the 1925 Act and it being a valuable legal right, cannot be taken away except by the competent Legislature itself. A delegate has no authority to take a decision in this regard, contrary to the essential legislative policy of the Statute. Sehajdhari Sikh Federation v. Union of India & Ors., 2011(3) L.A.R. 409 (P&H Full Bench).
Role of Judiciary -- There is a broad separation of power under the Constitution between the three organs of the democracy -- As per the Constitutional Scheme, the legislature, the executive and the judiciary are not required to encroach into each others domains and no organ can usurp the function assigned to another – Law summarized -- (i) Each organ of the State -the legislature, the executive and the judiciary must have respect for the others and must not encroach into each others domains -- (ii) Adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences -- (iii) The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not -- (iv) If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it -- (v) Judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches -- (vi) Restraint stabilizes the judiciary so that it may better function in a system of inter-branch equality -- (vii) Judicial restraint tends to protect the independence of the judiciary -- (viii) The constitutional trade-off for independence is that judges must restrain themselves from the areas reserved to the other separate branches -- (ix) Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers -- (x) The touchstone of an independent judiciary has been its removal from the political or administrative process -- (xi) When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored -- (xii) If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. Satpal v. State of Haryana & Ors., 2011(3) L.A.R. 636 (P&H).
Consumer Protection Act, 1986 (68 of 1986)
Section 12 -- Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15 -- Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, Regulations 5(3), 20 – Allotment of plot – Delivery of possession – Encroachment thereafter -- Right of re-allottee – Possession of the plot was delivered to the original allottee free from all encumbrances -- No provision in Act and Regulation for redelivery of possession to the transferees – HUDA cannot be blamed for the encroachment, if any, made after possession of the plot was delivered to the original allottee nor the re-allottee could possibly accuse the HUDA of deficiency in service in the matter of allotment of plot on the ground that some people had made encroachment on it -- Finding recorded by the District Forum that there was deficiency in service on the HUDA’s part is erroneous – Order of District Forum for allotment of alternative plot to the re-allottee set aside. Haryana Urban Development Authority v. Viresh Sangwan & Another, 2011(3) L.A.R. 526 (SC).
Controlled area
Haryana Municipal Corporation Act, 1994 -- Punjab Scheduled Roads and Controlled Areas Act, 1963 – Land within Municipal limits -- Notice for demolition of construction – Competent authority -- Held, since, the controlled area has been declared under the 1963 Act, therefore, the Town and Country Planner under the aforesaid Act is competent to issue notice to the petitioner for demolition. Smt. Poonam v. The District Town Planner, Karnal, 2011(3) L.A.R. 385 (P&H).
Co-owner
Rent Laws -- Tenancy rights are indivisible – A co-owner is competent to induct tenant in part of whole of the building -- Tenant cannot be evicted from part of the tenant premises -- After a tenant has been inducted, he is a tenant under all the co-owners -- A co-owner who has not inducted a tenant can seek eviction of such tenant. Smt. Bachan Kaur and others v. Kabal Singh & Another, 2011(3) L.A.R. 263 (P&H DB).
Correction of Khasra Girdawari
Partition proceedings – Pendency of -- During the pendency of partition proceedings, it is not advisable to change khasra girdawari of land in dispute in favour of particular share holders which will lead to multiplicity of litigation. Daljit Singh v. Amrik Singh, 2011(3) L.A.R. 661 (FC Pb.).
Cow slaughter
Punjab Prohibition of Cow Slaughter Act, 1955 -- Ownership or conscious possession of the house where slaughter took place – Requirement of -- Person contravening Section 3 cannot put up a defense that the act of slaughter was being done in a place, of which he is not the owner or in respect of which he does not have the conscious possession -- High Court’s finding that the guilt of the accused persons has not been proved in the absence of proof of their ownership or conscious possession of the house where slaughter took place, is a finding which is de-hors the said Act and is clearly not legally sustainable -- Case of the accused persons is not covered under the exceptions in Section 4. State of Haryana v. Rajmal & another, 2011(3) L.A.R. 521 (SC).
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