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1993 (5) TMI 199 - ALLAHABAD HIGH COURT
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... ... ..... wing cause to the Petitioner at the vital stage and the order passed by him removing Petitioner from the office of. Pradhan. cannot be sustained. The Respondent No. 2 also failed to consider this vital aspect of the case and simply expressed his agreement with the order and failed to have a critical examination of the order passed by the Respondent No. 1 which is normally expected from a Court or Authority sitting in appeal, which is rehearing of the entire case on all questions of law and fact. 9. For the reasons recorded above, this Writ Petition is allowed. The impugned orders dated 23-1-1993, Annexure 3 to the Writ Petition, and order dated 31-3-1993 passed by Respondent No. 4 Annexure 4 to the Writ Petition, are quashed. It is made clear that it will be open to the Authority to take action against the Petitioner in accordance with law after giving him reasonable opportunity of hearing if it so desires. In the circumstances of the case, there will be no order as to costs.
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1993 (5) TMI 198 - SUPREME COURT
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... ... ..... se placement of two persons appointed against vacancies reserved for Scheduled Caste candidates. The Circular dated March 6, 1961 does not deal with the said question and it has to be dealt with on the basis of the instructions contained in the orders dated May 5, 1975 and April 8, 1980. 12. For the reasons aforementioned the appeal is allowed, the judgment and the order of the High Court dated October 9, 1991 is set aside. The Civil Writ Petition filed by the appellant in the High Court is allowed and it is declared that respondent No. 3 can only be treated to have been appointed against the vacancy at Point no. in the Roster and on that basis he must be placed below the appellant in the seniority list. Respondent No. 2 is directed to revise the seniority list of the members of the Service accordingly. The appellant would be entitled to consequential benefits, if any, accruing to him as a result of such revision in the seniority. The parties are left to bear their own costs.
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1993 (5) TMI 197 - SUPREME COURT
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... ... ..... ate on which they are made. The applications received hereafter should also be entertained without raising the plea that they are beyond the prescribed date. b The respondents should scrutinise every application and the evidence produced in support of the claim and dispose it of as expeditiously as possible and in any case within three months of the receipt of the application, keeping in view the laudable and sacrosanct object of the Scheme. c The pension should be paid to the applicant from the date on which the original application is received whether the application is filed with or without the requisite evidence. The sanction of the pension would, however, be subject to the requisite proof in support of the claim. 11. The respondents are directed to dispose of the cases of the individual petitioners in the present petition in the light of the above directions at the latest within two months from today. 12. The petition is disposed of accordingly with no order as to costs.
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1993 (5) TMI 196 - PATNA HIGH COURT
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... ... ..... nt Act. In view of the provisions of the General Clauses Act, the word 'local authority' occurring in Section 26(1) and Section 159 of the Act must be given the same meaning as contained in Section 3(31) thereof. 56. In any event the absence of power to requisition the services of an employees of the statutory Corporation or Public Sector Undertaking etc. must be held to be 'corpus omissus' which cannot be supplied by this Court. 57. Further contention of the learned Advocate-General is that from the letter of the Election Commission, it would appear that at least since 1984 the services of the Bank employees have been requisitioned. It in now a trite law that a practice cannot be override the Statute and Statutory regulations. Reference in this connection may be made to Bihar prodesk Secondary Teachers Association v. State of Bihar 1993 (1) BLJR 352. 58. For the reasons aforementioned, I concur with the operative portion of the judgment of my learned brother.
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1993 (5) TMI 195 - PATNA HIGH COURT
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... ... ..... ntention of the legislature. In doing so "a judge must not after the material of which the Act is woven, but he can and should iron out the creases." Per Denning, L.J., as he then was, Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155, 164 See the observation of Sarkar, J. in M. Pentiah v. Muddala Veeramallappa (1961) 2 SCR 295, 314 AIR 1961 SC 1107" ". 35. In this connection, it has been found as a fact that the lands are situated within the Gaya Municipality. It is not the case of the respondents that the lands in question are situated at a nearby place of agricultural holdings of the landholder. 36. In this view of the matter, I have no other option but to hold that the homestead land of the landholder does not come within the purview of Section 4 of the Act for purpose of determining the ceiling area. 37. This application is, therefore, allowed and the impugned orders as contained in Annexures 3 and 4 are quashed. A.N. Chaturvedi, J. 38. I agree.
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1993 (5) TMI 194 - ALLAHABAD HIGH COURT
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... ... ..... so would be the claim of the so-called tenant for the enforcement of any rights flowing from the contract of tenancy or from any provision of U.P. Act 13 of 1972, yet a decree for ejectment and recovery of damages for use and occupation of the building can be passed depending upon the pleadings and proof in favour of the landlord and against the so called lessee. 114. The reference is answered accordingly. ORDER 115. In view of the majority opinion, the Full Bench answers and holds thus 1. An agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void. 2. The said agreement is uneforceable in law and no decree for ejectment of the tenant can be passed in favour of the landlord on the basis thereof. 116. Let the papers be placed before the learned single Judge with the above opinions and answers. 17. Order accordingly.
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1993 (5) TMI 193 - SUPREME COURT
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... ... ..... his case was governed by the provisions of section 12(3) (b) of the Act. For the foregoing reasons, we are of the opinion that the executing court was right in issuing a warrant for possession under order 21 Rule 35 of the Code against the tenant since the tenant had failed to take advantage of the concession clause by clearing the arrears of rent, mesne profits, etc. by 10th October, 1970. The First Appellate Court as well as the High Court were in error in holding that the decree was not executable as clause (3) thereof was in the nature of a penalty. We set aside the order of the First Appellate Court as well as the High Court and remit the matter to the executing court to proceed further in accordance with law. We may, however, make it clear that if there have been subsequent developments between, the parties creating any de novo relationship that will not be affected by this order. In the facts and circumstances of the case, we make no order as to costs. Appeal allowed.
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1993 (5) TMI 192 - HIGH COURT OF ALLAHABAD
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... ... ..... e Apex Court the total number of the members of the Board was 16. The Apex Court in that case obviously therefore, the half of the number was held to be 8 and it was observed that the motion of no confidence could only be passed if it was supported by more than 8 votes. It was further emphasised that natural meaning to the expression contained in sub-section (12) of S. 87-A of the Act should be given and strained reasoning should not be adopted for appreciating the plain meaning flowing from the simple language. 23. In the circumstances, therefore, it seems to me that it is impossible to approve the view where under when the total number of members of the Board is 15, the number of half of the member is taken to be 8. This will require a strained reasoning which is wholly unwarranted. Obviously half of 15 and 16 cannot be the same figure. 24. To conclude, I agree that the writ petition is clearly devoid of merit and is liable to be dismissed with cost. 25. Petition dismissed.
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1993 (5) TMI 191 - SUPREME COURT
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... ... ..... must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly Criminal Appeal will stand dismissed. Cr, M.P.No. 2224/93 in S.L.P.(cr No. 2648/92 filed by Respondent No. 2 will stand allowed. She is permitted to withdraw the amount without furnishing any Security. S.L.P. dismissed.
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1993 (5) TMI 190 - SUPREME COURT
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... ... ..... ep. In Clause (i) are included not only owner or occupier but even the agent or manager. When it comes to establishments other than factory it is not confined to owner or occupier but to all those who have control or are responsible for the affairs of the company. It includes even director. Therefore, every such person who has the ultimate control over the affairs of company becomes employer. To say therefore that since paragraph 36A requires an employer to do certain acts the responsibility for any violation of the provision should be confined to such employer or owner would be ignoring the purpose and objective of the Act and the extended meaning of employer in relation to establishments other than the factory. The declaration therefore in Form 5A including appellant as one of the persons in charge and responsible for affairs of the company was in accordance with law therefore his prosecution for violation of the scheme does not suffer from any error of jurisdiction or law.
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1993 (5) TMI 189 - SUPREME COURT
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... ... ..... igarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat. The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence. 32. Nor is there any merit in the submission that even part of the offence would attract Section 188 as the section operates when offence is committed outside India. An offence is committed when all the ingredients are satisfied. The section having used the word offence it cannot be understood as part of the offence. Section 179 Cr. P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue. On the allegations in the complaint the act or omissions were committed in India. In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Section 188 Cr. P.C. were not attracted.
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1993 (5) TMI 188 - HIMACHAL PRADESH HIGH COURT
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... ... ..... m to occupy the property, possession will be deemed to be that of Ramesh Kumar, co-sharer and not that of Kanwar Narbir Singh. It has also to be held that Kanwar Narbir Singh was out of possession of the suit property as on the date of sale in favour of the plaintiff. Thus, Kanwar Narbir Singh could not have transferred a valid title with respect to the specific portion of the property, which was in exclusive occupation of Ramesh Kumar or his heirs through the defendants. 12. As a result of the discussion, it has to be held that the plaintiffs remedy, if any, would be against the property of Kanwar Narbir Singh to get compensation out of the share to be allotted in partition to him or to claim compensation or damages from him but he has no right to claim a decree for possession against the defendants. 13. In view of the aforementioned, while answering the question posed in the negative, the appeal deserves dismissal and the same is hereby dismissed with no order as to costs.
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1993 (5) TMI 187 - DELHI HIGH COURT
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... ... ..... time to time in view of the medical report of Dr. Rakesh Verma, Heart Specialist of Dr. Ram Manohar Lohia Hospital.New Delhi vide letter No. NIC/3610/93 dated 6/04/1993 (copy of which is at page 117 of the paper book). In this report it has been stated that in view of the shortage of beds he cannot be hospitalised. Since the report is of early April 1993, I direct the petitioner to appear within a week from the date of this order before the Head of Cardiology Department/Cardiologist of Dr. Ram Manohar Lohia Hospital, New Delhi, who will submit the latest report of the petitioner to this Court directly within a week thereafter. For the purpose of interim bail, the case is adjourned to 18/06/1993. Meanwhile, the interim bail is extended till the next date of hearing on the gameterms and conditions. ( 20. ) I further direct that a copy of the last para of this order be sent to the Medical Superintendent. Dr. Ram Manohar Lohia Hospital, New Delhi, for information and compliance.
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1993 (5) TMI 186 - DELHI HIGH COURT
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... ... ..... stand dispensed with and the control and all powers shall thereafter vest in the Board of Directors of the Company subject however to such further directions of this Court as may be deemed proper necessary and desirable. 8.Now when the Scheme has been sanctioned I direct that the order dated 9th March, 1978 in C.P. 54 to 1977 for winding up of this company be and is hereby recalled and cancelled subject to the aforesaid directions and the of is directed to hand over possession of assets and relevant records and papers which he has in his custody to the Management Committee through its Chairman or Alternate (chairman against a proper receipt. ( 59. ) The result of the above discussion is that C.P. 131 of 1988 is allowed in terms of the above order, and C.A. 1082 of 1987 is partly allowed as mentioned above, while the other C.As. 2083188, 7626 of 1989, 13375 of 1989, 130 of 1990 and 328 of 1990, and C.As. 414i85 and C.A. 94187 are dismissed. There will be no order as to costs.
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1993 (5) TMI 185 - CALCUTTA HIGH COURT
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... ... ..... rd in the statutory notice in regard to the unpaid price of goods. There was no demur to any of the bills which mentioned 18 , though it is possible that the company did not expressly agree to pay the same. Interest can also be awarded by the Court under the provisions of the Sale of Goods Act. Not permitting the winding up petition to be received in this case would be an injustice to the petitioning creditor and a refusal to him of a remedy which the law leaves open to it. The winding up petition shall be admitted. It shall be advertised once in the Statesman and once, in the Ananda Bazar. Such publication are to be issued within six weeks from date hereof. Publication in the 'Calcutta Gazette is' dispensed with. The publication shall state that the winding up application shall be heard upon public notice on a date 12 weeks hence. 17. All parties and others concerned to act on a signed copy of this dictated order on the usual undertaking of the petitioning creditor.
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1993 (5) TMI 184 - DELHI HIGH COURT
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... ... ..... much more than shown in the books of account. Moreover, now there is subsisting demand of ₹ 13,56,149 and in writ jurisdiction we are not bound to interfere unless manifest injustice is shown, which is not the case here. Hence, we reject the argument. 7. The last argument raised is about the vires of section 281B of the Act. The argument is that it does not give the guidelines for making provisional attachment. We are not satisfied with the argument-firstly, the Assessing Officer has to make his opinion that he is satisfied that it is a fit case for protecting the interests of the revenue and secondly, he makes a reference to the Chief Commissioner or Commissioner as the case may be, and after approval is given, only then he makes the order. Moreover, if in a given case an arbitrary order is passed, it is open to an aggrieved party to approach this Court under article 226 of the Constitution. 8. Accordingly, CW No. 191 of 1993 is devoid of merits and is also dismissed.
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1993 (5) TMI 183 - SUPREME COURT
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... ... ..... rd may be treated as a guideline. That shall also furnish guideline for payment to part time imam, (vi) In all those mosques where full time Imams are working they shall be paid the remuneration determined in pursuance of this order. (vii) Part time and honorary Imam shall be paid such remuneration and allowance as is determined under the scheme. (viii) The scheme shall also take into account those mosques which are small or are in the rural area or are such as mentioned in the affidavit of Pondicherry Board and have no source of income and find out ways and means to raise its income. (ix) The exercise should be completed and the scheme be enforced within six months. (x) Our order for payment to Imams shall come into operation from 1st Dec., 1993. In case the scheme it not prepared within the time allowed then it shall operate retrospectively from 1st December, 1993. (xi) The scheme framed by the Central Wakf Board shall be implemented by every State Board. Petition allowed.
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1993 (5) TMI 182 - CALCUTTA HIGH COURT
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... ... ..... e ratio in V. Jaganmohan Rao's case (supra) is blown up out of all proportion. Therefore, the only pragmatic reading of that judgment could be that the reassessment proceeding shall confine itself to the points of underassessment. It cannot embrace the entire assessment. In the instant case, the assessee took the right course in prosecuting its cause of grievance in regular appeal forum. The Commissioner (Appeals) was very right in adjudicating upon the assessee's grievance arising from the original assessment. There is no infirmity in the appeal order of the Commissioner (Appeals). Rather, the dismissal of the appeal by the Commissioner (Appeals) on the allegation of non-maintainability of the appeal would have been a gross error of law to the deprivation of the assessee's vital statutory right to appeal. 8. For the reasons stated, we answer the question in the negative and in favour of the assessee and against the revenue. 9. There will be no order as to costs.
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1993 (5) TMI 181 - SUPREME COURT
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... ... ..... tta that in the case of an offence punishable under section 7(1) (a) (ii) of the Act which is tried by a Special Court constituted under section 12A, the provision of sub-section (5) of section 167 of the Code gets attracted if the investigation has not been completed within the period allowed by that sub-section but we find it difficult to sustain that part of the order of the High Court by which the order of the Special Court taking cognizance of the offence on the police report, i.e., charge-sheet submitted under section 173 (2) of the Code came to be quashed. We set aside that latter part of the order and hold that the Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof. We, therefore, direct that the Special Court will proceed with the trial from that stage onwards and complete the same as early as possible in accordance with law. o p /o p VPR. o p /o p Appeal partly allowed. o p /o p
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1993 (5) TMI 180 - SUPREME COURT
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... ... ..... y is to continue, and the State Governments shall not recover the impugned cess on minerals in the meantime. Similarly the petitioners would not be entitled, in the meantime, to claim any refund of the amount of cess already paid by them". 2. It is open to the petitioners to apply in the High Courts in the writ petitions pending there, for an interim order in similar terms as has been made by Hon'ble Mr Justice J.S. Verma and Hon'ble Mr Justice G.N. Ray in W.P. (C) No. 787 of 1992 on April 30, 1993. Apart from making the necessary interim orders or modification of the earlier interim order for this purpose, in these writ petitions pending in the High Court, it would be appropriate that further hearing of the writ petitions in the High Courts remains stayed until the decision of Writ Petition No. 787 of 1992 and the connected writ petitions by this Court. 3. With these observations these transfer petitions are disposed of, for the aforesaid reasons. Court Masters
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