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1967 (2) TMI 113 - MADRAS HIGH COURT
... ... ... ... ..... d of release does not fall within the ambit of Article 55 of Schedule I appears to be devoid of substance. Article 55 refers to release, that is to say any instrument.............. whereby a person renounces a claim upon any other person, or against any specified property . We do not think that this means that a releasor cannot validly state, in the instrument, that he is effacing his rights in the property, in favour of another named individual. There is an entity known to law as a document of release, and we have no reason to think that, by this Article that entity was not indicated but only one particular kind of sub-species release, wherein the person in whose favour the release is declared or intimated, is not designated by identity or name. 13. We would, therefore, unhesitatingly answer the question in the form that the document was rightly interpreted as a release under Art. 55 of Schedule I of the Indian Stamp Act and is liable to duty as such. 14. Answer accordingly.
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1967 (2) TMI 112 - SUPREME COURT
... ... ... ... ..... ce of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been alienated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under section 92 of the Code of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idol's properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra AIR1954Ori11 , came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject. 17. In the result, agreeing with the High Court, we hold that the suit filed by the idol represented by a worshipper, in the circumstances of the case is maintainable. The appeal fails and is dismissed with costs. 18. Appeal dismissed.
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1967 (2) TMI 111 - SUPREME COURT
... ... ... ... ..... facement and is not within the permissible limits of delegation. Realising this difficulty, Counsel for the State conceded that the policy decision was illegal. But such a concession by Counsel cannot be of any assistance, for the simple reason that as Sec. 9 (1) stands the power delegated to the government is discretionary and the government can therefore decide whether a particular local area or a class of local areas should be declared as. nagars or grams or not and it is in exercise of that power. that the policy decision was made and implemented, contrary though it is to the aim and object of the Act to set up panchayats in all local areas except those having populations over 30,000. Section 9 in my view suffers from excessive delegation and therefore is invalid. The impugned notification issued there-under must fall along with it. I would, therefore, allow the appeal with costs. ORDER In accordance with- the opinion of the majority the appeal is dismissed without costs.
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1967 (2) TMI 110 - SUPREME COURT
... ... ... ... ..... assed against him in Suit No. 25 of 1958. The appellant was informed that suits Nos. 22 and 25 of 1958 were connected suits. The appellant knew that he had dealings with the respondent in respect of a ruqqa and a mortgage. He knew that the suit No. 22 of 1958 was filed on the ruqqa. From the information conveyed to him by the Civil Judge on August 16, 1958, it must have been clear to the appellant that an ex-parte decree had been passed against him in favour of the respondent in suit.No. 25 of 1958 on the basis of the mortgage. The appellant had thus on August 16, 1958 clear knowledge of the decree passed against him in suit No. 25 of 1958 which he now seeks to set aside. Time began to run against him from August 16, 1958 under art. 164 of the Indian Limitation Act, 1908. The application filed by him on April 16, 1959 was, therefore, clearly barred by limitation and was rightly dismissed by the courts below. In the result, the appeal is dismissed with costs. Appeal dismissed.
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1967 (2) TMI 109 - HIGH COURT OF CALCUTTA
... ... ... ... ..... ction 115 of the Customs Act The Customs Authorities will have to initiate a proceeding if they want to confiscate the lorry. There is no reason why pending disposal of the proceeding the lorry should be detained. It may be returned to the registered owner on a bond and on terms. 9. The two Rules are accordingly made absolute. The orders passed by the learned Chief Presidency Magistrate are set aside. The cases are sent back to the learned Magistrate for the purpose of dealing with the petition of the Customs Authorities in accordance with law and in the light of my observation above. So far as the lorry seized is concerned it should be made over to the registered owner thereof on a bond for an amount to be fixed bv the learned Chief Presidency Magistrate and on an undertaking being furnished by the registered owner to the Chief Presidency Magistrate that the lorry will never again be used for any illegal purpose. 10. Let the records be sent down as expeditiously as possible.
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1967 (2) TMI 108 - CALCUTTA HIGH COURT
... ... ... ... ..... aintain a meaningful silence or indulge in equivocations and double entendres, rely on the doctrine of onus of proof and deflect the course of justice. For the Court to permit this to be done with success, will be to stultify itself, abdicate its functions and adjure its duties. 35. On the question, whether there was a demand for justice, learned advocate appearing for the State fairly conceded that the question was not raised at the hearing. We do not think it will be proper, in the facts and circumstances of this case, to permit the objection to be taken at this stage. 36. In view of the matter we have taken, the appeal succeeds. The order of the learned Judge is set aside and the Rule is made absolute. There will be no order as to costs. The order is made without prejudice to the rights of the Respondents to take such other steps as they may be entitled to under the law, for acquisition of the land which is the subject matter of the appeal. A. K. Mukherjea, J. 37. I agree.
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1967 (2) TMI 107 - ALLAHABAD HIGH COURT
... ... ... ... ..... along with this one, the incumbent is occupying the post of Civil Judge. In those petitions (Nos. 3386 of 1966. 3712 of 1966, 3788 of 1966, 3790 of 1966, 3943 of 1966, 4214 of 1966 and 4221 of 1966) the only ground taken was that the rules were invalid and hence also the appointment to the service At the hearing, learned counsel urged that appointment to the service is made on the post of Munsif. Thereafter the officer is promoted to the post of Civil Judge Under Article 235 of the Constitution 'promotion' vests exclusively in the High Court The promotion of the respondent officer not having been done by the High Court, he could not validly occupy the port of Civil Judge This submission again was made without any averment in the petition that the High Court did not pass the requisite order or that some one else did. In the circumstances the submission cannot be entertained. Thus, all the submission are without merit. 36. The petition fails and is dismissed with costs.
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1967 (2) TMI 106 - MADRAS HIGH COURT
... ... ... ... ..... ndicated in broad outline the general principles on which the cases before us will have to be considered and discretion exercised. For the exercise of discretionary jurisdiction it is neither feasible nor desirable to rigidly lay down in advance rules that should govern the discretion. Then it will cease to be discretionary. One safe and permanent rule is to be perpetually aware that the discretion has to be exercised judicially, judiciously and with reason. I have dealt only with two of the important questions which arise for consideration in these cases. While I am in agreement on both the aspects with the ultimate conclusion arrived at by my Lord the Chief Justice, I might have in my reasoning followed a more zigzag path. My Lord the Chief Justice has dealt in extenso with certain other features common to all the cases and as regards these matters I am in entire agreement. All the cases will now have to be considered individually in the light of the preliminary judgments.
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1967 (2) TMI 105 - BOMBAY HIGH COURT
... ... ... ... ..... oner and then the present petition in order that they could continue in possession of all the lands which are liable to be partitioned. Mr.Rane argued that since we have found that the Commissioner failed to exercise the jurisdiction vested in him by law when he dismissed the petitioner's appeal, we ought to set aside the Commissioner's order and direct that the appeal filed by the petitioners should be restored. We are, however, not bound to do so. Interference by this Court under Articles 226 and 227 of the Constitution is discretionary and it is the settled practice of this Court not to interfere under these provisions unless it is necessary to do so in the interests of justice. In the present case the interest of justice requires that we should not interfere with the order of the Commissioner however wrong in law that order may be. The petition therefore, is dismissed. Under the circumstances there will be no order as to costs of this petition. Order accordingly.
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1967 (2) TMI 104 - CALCUTTA HIGH COURT
... ... ... ... ..... iven time till the end of February, 1969 on conditions that -- (1) the defendant shall deposit and go on depositing in the trial court to the credit of the plaintiffs regularly month by month a sum equivalent to the monthly rent as compensation for use and occupation of the suit premises by the 15th of the month following the month for which it is due, to the credit of the plaintiffs, (2) if default is made of such deposits for two consecutive months the decree shall be executable immediately, (3) if the deposits are made as mentioned above, the plaintiffs will be entitled to withdraw the sum without security. (4) If a written undertaking to deliver vacant and peaceable possession of the premises to the plaintiffs is not given to the trial court within three months from to-day, the decree for eviction shall be executable on the expiry of 31st October, 1967. 33. The appeal is dismissed with the modification of the decree as mentioned above. There will be no order as to costs.
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1967 (2) TMI 103 - BOMBAY HIGH COURT
... ... ... ... ..... he flatholders. On this second ground, therefore, we must hold that the assessees, Modern Flats Ltd., were not the owners during the relevant assessment periods. It was urged by Mr. Joshi that the agreements could not transfer any right, title or interest in the immovable property in favour of the purchaser flatholders because they are not registered. If registration is the ground for holding that no transfer took place from Modern Flats Ltd. to those flatholders, then it seems to us that on that very ground Modern Flats Ltd. could never have become the owners of the property by the transactions between Varjivandas & Co. and Mehta Estates Ltd. and Mehta Estates Ltd. in favour of Modern Flats Ltd., since every document involved in the case was unregistered. Upon that argument, the first point would get further reinforced. In conclusion, we answer the question referred in the negative. The Commissioner shall pay the costs of the assessee. Question answered in the negative.
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1967 (2) TMI 102 - SUPREME COURT
... ... ... ... ..... ives it intends to pursue. Such tentative conclusion communicated to the Board does not mean that the State Government is not open to conviction at all and whatever the explanation it would pass an order in accordance with its tentative conclusion. There is therefore no reason to think that all proceedings subsequent to the issue of notice dated June 9, 1964 were in this case a farce. The third ground on which the High Court decided in favour of the respondent must fail. It appears that the respondent had secured a stay order and practically continued to function for the full period of four years under the cover of the stay order. Before us, though the respondent has appeared, it did not seriously contest the appeal, for, the period of all members who took office on July 7, 1962 came to an end on July 6, 1966. We therefore allow the appeal, set aside the order of the High Court and dismiss the writ petition. In the circumstances we pass no orders as to costs. Appeal allowed.
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1967 (2) TMI 101 - SUPREME COURT
... ... ... ... ..... whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant action under section 408(1) of the said Act". The (order dated September 29, 1965, read with the notice dated July 21, 1965 shows that in the opinion of the State government the second ground alone was serious enough to warrant action under s. 408(1) and was sufficient to establish that the corporation was not competent to perform its duties under the Act. The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order. We are reasonably certain that the State government would have passed the order on the basis of the second ground alone. The order is, therefore, valid and cannot be set aside. In the result, the appeal is allowed, the order of the High Court is set aside and the writ petition is dismissed. In all the circumstances, there will be no order as to costs in this Court and, in the court below. Appeal allowed.
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1967 (2) TMI 100 - SUPREME COURT
... ... ... ... ..... le 7(1) is however different and that rule provides that the Government may place a member of the Service under suspension "having regard to the nature of the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of -,he difference of language in Rule 5(2) and Rule 7 we are of the )pinion that the word "charges" in rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the Service. We accordingly reject the argument of the appellant on this aspect of the case For the reasons already expressed we hold that the appellant has made out no case for the grant of a writ of prohibition under Art. 226 of the Constitution and the majority judgment of the High Court of Kerala dated January 5, 1966 is correct and this appeal must be dismissed. In the circumstances of the case we do not make any order as to costs. Appeal dismissed.
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1967 (2) TMI 99 - SUPREME COURT
... ... ... ... ..... resent case, we are of opinion that there is no such negligence or laches or acquiescence on the part of the appellant as may disentitle it to the grant of a writ. For the reasons already stated, we hold that the judgment of the Division Bench of the Bombay High Court dated February 6, 1962 must be set aside and the appellant must be granted a writ in the nature of certiorari for quashing the other of the industrial court, dated October 24, 1959 and of the labour court dated August 4, 1959. The appeal is accordingly allowed, but in the circumstances of the case, there will be no order as to costs. We should, however, like to make it clear that this decision will not prejudice the trial of any references with respect to bonus which may be pending or which may hereafter be made between the appellant and its employees in respect of the years 1955 and 1956. If such references are pending or should hereafter be made, they will be proceeded with and decided in accordance with law.
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1967 (2) TMI 98 - SUPREME COURT
... ... ... ... ..... r of assessment, such as ayacut, taram, rate or classification or even in regard to the calculation of the figures. Not only the scheme of classification, as pointed out by us earlier, has no reasonable relation to the objects sought to be achieved viz., fixation and rationalisation of rates but the arbitrary power of assessment conferred under the Act enables the appropriate officers to make unreasonable discrimination between different persons and lands. The Act, therefore, clearly offends Art. 14 of the Constitution. In some of the appeals relating to Peddapuram and Kumara- puram villages another point was raised, namely, that a special rate bad been fixed which was neither for a single crop nor for a double crop and that, therefore, they do not come under any of the provisions of the Act. In the view we have expressed on the other questions it is not necessary to notice this argument. In the result the appeals are dismissed with costs. One hearing fee. Appeals dismissed.
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1967 (2) TMI 97 - SUPREME COURT
... ... ... ... ..... sub-r. (3) of r. 7 is also invalid on account of excessive delegation of powers by the Legislature. In view of the above, it is not necessary to go into the question as to whether the Deputy Municipal Commissioner could exercise quasi-judicial powers of the Commissioner as regards the determination of the rateable value under s. 49(1) of the Act and we express no opinion thereon. In the result, the petitions are allowed. A writ of mandamus will issue in each case directing the respondent No. 1, Municipality, to treat the relevant entries in the assessment book for the years 1964-65. 1965-66 and 1966-67 relating to special property section questioned in these petitions as invalid and cancelled; and directing respondent No. 1 to prepare fresh assessment lists for the said years relating to the textile mills and other properties dealt within the said special property section. The petitioners are entitled to costs of these applications. One set of hearing fee. Petitions allowed.
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1967 (2) TMI 96 - SUPREME COURT
... ... ... ... ..... But the report of that Enquiry Officer was never disclosed to the first respondent. ’The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State. The appeal therefore fails and is dismissed with costs. Appeal dismissed.
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1967 (2) TMI 95 - SUPREME COURT
... ... ... ... ..... ency under Art. 352 of the Constitution was a gross violation of power because the emergency had ceased to exist. It was also contended that Art. 358 should be so construed as to confine its operation on to legislative or executive action relevant to the Proclamation of Emergency. It was submitted that the Mysore State was rot a border area and the land reform legislation of that State had no relevant-connection with the Proclamation of Emergency and the fundamental rights conferred by Art. 19 cannot be suspended so far as the petitions are concerned. I do not think that it is necessary to express any opinion on these points because the Writ Petition must fail on the other grounds which I have already discussed above. It is also not necessary for me to express an opinion on the doctrine of prospective overruling of legislation. For the reasons already expressed I hold that all these petitions fail and should be dismissed, but there will be no order as to Petitions dismissed.
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1967 (2) TMI 94 - MYSORE HIGH COURT
... ... ... ... ..... hat his inability should not at any rate at this stage be charged against him because the certified copies of the assessment orders received by him from the department do not indicate the exact date on which the original orders had been passed. The writ petitions are, therefore, admitted and emergent notice will issue to the respondent returnable within ten days. 26.. In the other three writ petitions, namely, Nos. 2731, 2732 and 2733 of 1966, the rectification applications were clearly within the period of limitation prescribed by law. These petitions are also admitted. Emergent notice will issue to the respondent returnable within ten days. 27.. No costs in any petition. 28.. Writ Petitions Nos. 1606 and 1610 of 1965 and 1417 and 1418 of 1966 which have been posted for hearing along with these cases are not dealt with because they deal with other point or points also. All these four writ petitions stand adjourned to next Monday the 13th February, 1967. Ordered accordingly.
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