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Showing 1 to 20 of 140 Records
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1981 (12) TMI 184 - PATNA HIGH COURT
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... ... ..... day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation and for taking this view we find full support from the Calcutta case which also finds support from the view taken by the Madras High Court in the case of Ghanamuthu Upadesi v. Vana Koilpillai Nadan ILR(1894) Mad 379. Therefore, while-holding that the Article 137 of the new Limitation Act applies to any petition or application filed under any Act, we do not feel any difficulty to come to the conclusion that so far as the application for grant of a Probate or Letters of Administration is concerned, they are not governed by any Article of the Limitation Act. The application accordingly fails and, is hereby dismissed, but in the circumstances, we shall leave the parties to bear their own costs.
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1981 (12) TMI 183 - SUPREME COURT
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... ... ..... representation together with his comments to the Home Secretary on August 13, 1981. The representation was received in the Home Department the next day. It could not be attended to on August 15, which was the Independence Day, and on the 16th, being a Sunday. The representation was scrutinised in the Secretariat for three days between the 17th and the 19th, and the notings on the file were made. The file was perused by the Joint Secretary, Home Department, on August 19. On August 20, the Law Department was consulted. The file was placed before the Home Secretary on August 21, who placed it before the Chief Minister. The Chief minister took two days to study the file and ultimately, passed an order rejecting the representation on August 24. It would, therefore, appear that the representation made by the petitioner was considered by the State Government at all levels, and there was no undue delay in its consideration. Accordingly, the writ petition must fail, and is dismissed.
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1981 (12) TMI 182 - ALLAHABAD HIGH COURT
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... ... ..... de Under Section 395 IPC which is an offence exclusively triable by a Court of Session such assessment of evidence on the yardstick of probabilities and objective circumstances was not open to the learned Magistrate vide Mitar Singh v. Sarjit (1970 All Cri 220). After coming in operation of new Code of Criminal Procedure (Act No. 2 of 74) Chapter XVIII which related to committal proceedings and was termed as inquiry as provided under the old Cr.P.C. (Act No. 5 of 1898) has been abolished. 14. So the Magistrate had no power to discharge the accused if the evidence at any stage of inquiry Or trial disclosed an offence exclusively cognizable by a Court of Session. Thus the order of discharge was rightly held by learned trial Judge as beyond the jurisdiction of Magistrate who by making the same simply usurped the jurisdiction of the Court of Session. 15. The revision fails as devoid of force. Stay order is- vacated. Send the record at once to court concerned for a quick despatch.
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1981 (12) TMI 181 - KERALA HIGH COURT
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... ... ..... term "trust" is understood in that popular sense, many types of contractual liabilities will stand excluded from the definition of debt; and it is not easy to assume that the legislature wants to take away by the left hand what it gives by the right. To enlarge the scope of 'Trust' in Section 2(3)(c) would be to deny the benefit of Act 17/77 to more and more people. A piece of beneficial legislation cannot be so interpreted unless there are other compelling reasons. 17. I am therefore of the view that the liability in this case is not a liability excluded by Section 2(3)(c) of Act 17/ 77. At any rate, that is the conclusion to be reached if the pleadings are examined in the same manner as was done in Mariyamma v. Thressiamma (1959 Ker LT 989). In this view I set aside the order impugned and remit the matter back to the court below to consider whether the petitioner herein is a "debtor" entitled to the protection of Section 3 of the Act. No costs.
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1981 (12) TMI 180 - DELHI HIGH COURT
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... ... ..... and developing at a phenomenal rate. Huge financial resources are necessary for meeting these civic obligations. The taxation resources of the Corporation, for raising the needed finances, are very limited. They are laid down by Section 113 of the Act. Property tax forms a very large chunk of the tax resources of the Corporation. The fact that Municipal Administrations in India are stifled in their activities due to large scale-arrears of the payment of house-tax, cannot also be ignored . At the same time, the District Court must consider whether the order of deposit will cause substantial loss or extreme hardship to a tax payer. The second part of the question is answered as follows Appeal under Section 169 cannot be heard or determined unless the amount, as directed by the District Judge, is deposited by the appellant. The District Judge has a discretion to direct deposit of an admitted amount or disputed amount or a part of the total tax amount, with or without conditions.
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1981 (12) TMI 179 - DELHI HIGH COURT
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... ... ..... r for all purposes; in fact he welcomed it because the confessional statement would then become inadmissible in evidence. There being ample authority for the proposition that a Customs Officer is not a Police Officer, viz., Ramesh Chandra v. State of West Bengal, 1970CriLJ863 which was a case under the Sea Customs Act of 1878, and the case of Illias already referred to, we find that we cannot stretch the provisions of S. 167 of the Code of Criminal Procedure, 1973, to cover the case of an Enforcement Officer acting under the Foreign Exchange Regulation Act, 1973. So, we have to hold that the remand to judicial custody was not valid, and Therefore, the petitioner is being detained without authority of law. 15. We may now note that the lacuna which seems to exist has to be met by the Legislature and not by the Court. In the circumstances, we have to grant the present writ of habeas corpus and accordingly we order that the petitioner be released forthwith. 16. Petition allowed.
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1981 (12) TMI 178 - KERALA HIGH COURT
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... ... ..... lf from expressing any opinion on the larger question mooted; when does a legislation framed by a delegate of the legislator by virtue of power conferred on him to make such legislation come into force,-- when it is framed?; when it is published? when the factum of such legislation is notified? which may be done even without publication of the Rules in the official Gazette; or only when the same, generally speaking, reaches the hands of those for whom it is intended. The answer to this may, perhaps, depend upon the scrutiny of the scope of the power conferred, on the subordinate legislator by the principal legislator to make subordinate legislation including the power to bring the same Into force, and the method and manner prescribed by principal statute in that behalf. I also do not express any opinion on the correctness or otherwise of the Kochusara case, 1973 Ker LT 880 as in the view that I have expressed above, that question does not fall for examination in these cases.
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1981 (12) TMI 177 - DELHI HIGH COURT
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... ... ..... ated as a Police Officer for all purposes; in fact be welcomed it because the confessional statement would then become inadmissible in evidence. There being ample authority for the proposition that a Customs Officer is not a Police Officer, viz., Romesh Chandra Mehta v. State of West Bengal, which was a case under the Sea Customs Act of 1878, and the case of Illias already referred to, we find that we cannot stretch the provisions of Section 167 of the Code of Criminal Procedure, 1973, to cover the case of an Enforcement Officer acting under the Foreign Exchange Regulation Act, 1973. So, we have to hold that the remand to judicial custody was not valid, and therefore, the petitioner is being detained without authority of law. (15) We may now note that the lacuna which seems to exist has to be met by the Legislature and not by the Court. In the circumstances, we have to grant the present writ of habeas corpua and accordingly we order that the petitioner be released forthwith.
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1981 (12) TMI 176 - ALLAHABAD HIGH COURT
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... ... ..... is a mistake in writing or typing." 14. No doubt the facts in the aforementioned two Supreme Court decisions were different. In neither of them the counsel for the appellant had failed to appear on account of want of notice or some other cause. However, the interpretation put by the Supreme Court on Sec. 362 and 482 of the Code in the aforesaid decisions, cannot be distinguished or ignored on this ground because the language of Section 362 is quite wide and does not contain any exception which would cover the facts as exist in the instant case. 15. The present is not a case for correction of a mere clerical or arithmetical error which may be covered Under Section 362 of the Code. 16. For the above reasons the judgment and order dated 6-11-1981 cannot be recalled or set aside by this Court in exercise of its inherent jurisdiction as well. 17. In the result the application for recall of the judgment and order dated 6-11-1981 cannot be allowed and is accordingly dismissed.
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1981 (12) TMI 175 - SUPREME COURT
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... ... ..... can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee. 24. None of these conditions have been satisfied in the instant case, for example, no representation was made to defendant No. 1. Therefore, he cannot plead estoppel. Secondly, the representation was not regarding a fact but regarding a right of which defendant No. 1 or his predecessor in interest had full knowledge or could have known if he had cared to 'know. It is difficult to say that defendant No. 1 has moved his position on account of the representation made by the mortgagor or his heirs or assignees. On the facts and circumstances of this case it is not possible to hold that ingredients of Section 115 of the Evidence Act have been fulfilled. The view taken by the Division Bench of the High Court is fully warranted by law. 25. For the foregoing discussion we find no force in this appeal. It is accordingly dismissed with costs.
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1981 (12) TMI 174 - MADRAS HIGH COURT
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... ... ..... e. 16. As already stated the point for consideration in the instant revision petition is, whether notice has to be given to the Official Liquidator as per the provision of Section 561(A) and in accordance with the provisions of o. 21 R. 16 of the C.P.C. In construing the entire decision in this case, this Court considers that it is just and equitable that notice has to be given to the Official Liquidator under the circumstances of the case, and therefore, it orders notice. 17. The result is, this Civil Revision Petition is allowed and the entire matter is remitted back to the lower Court by setting aside the order under revision for being considered a fresh by the executing Court in the light of the observations made by this Court and in accordance with law. Both the sides should be given opportunity to adduce evidence, if any, both oral and documentary. Under these circumstances, the Civil Revision Petition is allowed. Under the circumstances, there is no order as to costs.
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1981 (12) TMI 173 - SUPREME COURT
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... ... ..... e Government. In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugned orders of suspension. The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition. The burden of establishing mala fides lies very heavily on the person who alleges it. The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers. The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners. The question whether or not, they committed the breaches is a matter for inquiry by the licensing authorities under sub-cl. (1) of cl. 11 of the Order. In the result, the petitions must fail and are dismissed with costs. Petitions dismissed.
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1981 (12) TMI 172 - SUPREME COURT
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... ... ..... ion for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation. For the reasons given above all the appeals are allowed and the order of the High Court and that of the Commissioner is set aside insofar as it relates to finding of the Collector in favour of the appellants. The remand order will, however, remain intact insofar as other points are concerned. In the circumstances of the case, the parties shall bear their own costs. Appeals allowed.
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1981 (12) TMI 171 - SUPREME COURT
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... ... ..... case was clear the settlements of 1974, in so far as they related to bonus could only be superseded by a fresh settlement. an industrial award or relevant legislation. But any such supersession could only have future effect, but not retrospective effect so as to dissentient the Class III and Class IV employees of the Life Insurance Corporation from receiving the cash bonus which had been earned by them, day by day and which the Life Insurance Corporation of India was under an obligation to pay in terms of the writ issued in D. J. Bahadur's case. The present attempt made by the 1981 amending Act and the rules thereunder to scuttle the payment of bonus with effect from a date anterior to the date of the enactment must, therefore, fail. The employees are entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 19 81. Petitions partly allowed.
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1981 (12) TMI 170 - SUPREME COURT
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... ... ..... BRO, and also that no person who has been taken as a Clerk in the BRO can go above persons absorbed therein in the category of Rationing Inspectors. 39. In the light of what we have said above, the impugned seniority lists insofar as they have been drawn up in deviation from the legal position explained above call for immediate revision We would accordingly direct respondents 23 and 24 (State of Maharashtra and the Controller of Rationing, Bombay) to revise the two impugned seniority lists and refix the ranking assigned to the writ petitioners and others in the light of what we have said in this judgment. 40. In the result, this appeal is allowed and the judgments of the High Court are set aside. The writ petition-Miscellaneous Petition No. 166 of 1976-is allowed only to the limited extent of the aforesaid direction issued to respondents 23 and 24 for revision of the impugned seniority lists and it is dismissed in other respects. The parties will bear their respective costs.
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1981 (12) TMI 169 - MADHYA PRADESH HIGH COURT
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... ... ..... the agency of its own choice. The evidence of the Bank Manager, Chimanlal (D. W. 1) and Accountant Madhusudan (D. W. 3) that the instructions for collection through a particular agency were written in the Hundies given by the plaintiff could not be accepted for the simple reason that no such instructions are noted in the carbon copies of Hundies produced by the plaintiff. In the absence of any satisfactory and convincing evidence in this behalf, it has to be assumed that the defendant Bank adopted its own mode and choice of agency in sending the documents through the post office by registered post which were delivered to some wrong and unknown person who took the delivery of the goods and committed fraud. In these circumstances, the defendant Bank was not entitled to reverse the credit entry, and more so, without returning back the documents to the drawer. 19. In the result, the appeal fails and is hereby dismissed with costs. Counsel's fee, ₹ 600/-, if certified.
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1981 (12) TMI 168 - SUPREME COURT
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... ... ..... or to deny him that opportunity. An example of a case in which no time should be allowed would be that of a tenant who, although in affluent circumstances at all relevant point of time, has failed to make payment of rent year after year in spite of repeated demands from an otherwise indigent landlord and whose conduct is, therefore, contumacious calling for no sympathy or concession. The extension to him of the same facility which is afforded to a willing tenant under sub-section (3) would be uncalled for and in fact unjust. Nor do I find why the word "may" occurring in clause (b) of sub-section (4) be not given its ordinary meaning as denoting the conferment of a discretion on the RDo and be equated with "shall" so as to make it obligatory on him to grant time to the cultivating tenant. 5. Subject to the disagreement expressed by me above I concur with the judgment of Desai, J. MISRA, J. I agree with my learned brother, Koshal, J. N.V.K. Appeals allowed
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1981 (12) TMI 167 - ALLAHABAD HIGH COURT
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... ... ..... n scrap or iron skull scrap. It shows that the word has been used as popularly understood. Tin scrap could not therefore be deemed to be included in iron scrap. 6. As regards rate of tax payable on tin scrap the assessee claimed before Tribunal that it was taxable at 2 being covered by ST-4949 dated 1.6.1975. Before this court reliance was placed on Notification No. 333 dated 15th November, 1971. It would be better if applicability of notification is considered first by the Tribunal. 7. In the circumstances this revision succeeds and is allowed. The order passed by the Tribunal is set aside. The question of law raised by assessee is decided by saying that tin scrap is not iron scrap mentioned in subclause (i) of clause (iv) of Central Sales Tax Act, consequently not a declared commodity. The Tribunal may however decide the applicability of notification under which tin scrap can be held to be taxable. The assessee shall be entitled to costs which is assessed at ₹ 300/-.
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1981 (12) TMI 166 - SUPREME COURT
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... ... ..... article 367 (2) cannot make it so. There is also another aspect of the matter. Article 21 not only speaks of a situation in normal times which left no time for the to think of a situation in normal times which left no time for the President to summon Parliament and required him to promulgate ordinances to take away the life or liberty of persons, unless one considered life and liberty as matters of no great importance. However, in view of the opinion of the majority upholding the validity of the ordinance, it is unnecessary to dilate on this aspect. On all the other points I agree with conclusions reached by the learned Chief Justice. TULZAPURKAR, J. On the question of bringing into force, section 3 read with section 1(2) of the Constitution (Forty- Fourth Amendment) Act, 1978 I am in agreement with the view expressed by my learned brother A. C. Gupta in his judgment. Barring this aspect, I am in agreement with the rest of the judgment delivered by my Lord the Chief Justice.
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1981 (12) TMI 165 - SUPREME COURT
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... ... ..... provided by the Constitution and the laws go the independence of the judiciary will not suffer. But with all these measures being there still a Judge may not be independent. It is the inner strength of Judges alone that can save the judiciary. The life of a Judge does not really call for great acts of self- sacrifice; but it does insist upon small acts of self-denial almost every day. The following sloka explains the true traits of men with discretion which all Judges should possess (Let men trained in ethics or morality, insult or praise; let lakshmi (wealth) accumulate or vanish as she likes; let death come today itself or at the end of a yuga (millennium), men with discretion will not deflect from the path of rectitude.) 1269. This is only an ideal. It is difficult to attain it but every Judge should at least endeavour to set his eyes on that goal. 1270. In view of the majority decision, all the transferred cases and writ petitions are dismissed with no order as to costs.
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