Partly allowed

Dr Prabha Gill and Another v. State of Hp

Himachal Pradesh HC3 May 2024CWPOA/5570/2020

Case brief

AI extract

What is this about?

This High Court quashed recovery orders dated in 2018 because they were issued without recorded reasons or Rule 46 of the FRSR. The court relied on Mohinder Singh Gill and held that grounds cannot be supplied later by affidavit, but denied further relief as the amount was meagre.

What did the court decide?

The impugned recovery orders dated 04.10.2018, 21.10.2018, and 02.11.2018 are quashed and set aside.

Dr Prabha Gill and Another Vs… — Constitutional and Fundamental Rights | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWPOA No.5570 of 2020

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Date of Decision: 03.05.2024

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Dr. Prabha Gill and others

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....Petitioners

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Versus

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State of Himachal Pradesh & others

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…Respondents

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____________________________________________________ Coram_

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon’ble Mr. Justice Sushil Kukreja, Judge

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Whether approved for reporting?¹ No.

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________________________________________________ For the petitioners : Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate. For the respondents : Mr. Anup Rattan, Advocate General with Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocates General & Mr. J.S. Guleria & Mr. Raj Negi, Deputy Advocates General.

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Tarlok Singh Chauhan, Judge (Oral)

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The instant petition has been filed assailing therein

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the recovery orders that have been passed by the respondents.

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On 23.04.2024, this Court has passed the following

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order:-

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“Heard. Let records relating to passing of order(s) dated 04.10.2018 (Annexure A-3), 21.10.2018 (Annexure A-4) and 02.11.2018 (Annexure A-5) be produced by the respondents on the next date of hearing.”

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Before adverting to the records, it needs to be mentioned that the respondents, in order to justify their action, have referred to Rule 46 of the FRSR. However, the records nowhere indicate that any of the respondents, prior to the issuance of recovery notices, had even made a mention much less discussion about the provision of Rule 46 of FRSR and the entire exercise appears to be initiated by respondent No.1 on the basis of some news item.

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Obviously, in such circumstances, the action of the respondents cannot sustain as it is more than settled that reasons can not be substituted by way of reply affidavit when the same are not existing in the records of the respondents. Reference in this regard is made to the decision of the Hon’ble Supreme Court in Mohinder Singh Gill and another Versus The Chief Election Commissioner, New Delhi and others, AIR 1978 Supreme Court 851 , the relevant portion whereof is reproduced as under:-

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“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out……”

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Consequently, the instant petition is allowed and the

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impugned orders dated 04.10.2018 (Annexure A-3), 21.10.2018

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(Annexure A-4) and 02.11.2018 (Annexure A-5) are quashed and set aside.

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Since this petition is disposed of on technical ground, this Court would have normally reserved liberty to the respondents to proceed from the stage when they committed the technical breach, however, taking into account the fact that the petitioners have since retired and the amount, sought to be recovered, is very meagre and also taking into consideration that it would be iniquitous and harsh to such an extent as would far outweigh the equitable balance of the respondents’ right to recover, we deny such liberty to the respondents. Nevertheless, we make it absolutely clear that this order is being passed in view of the peculiar facts and circumstances of the present case and shall not be treated as precedent in future.

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Pending application(s), if any, shall also stand

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disposed of.

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(Tarlok Singh Chauhan) Judge

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(Sushil Kukreja)

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May 03, 2024 Judge (VH)

Dr Prabha Gill and Another v. State of Hp

Case brief

What is this about?

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Dr Prabha Gill and Another v. State of Hp

Case brief

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