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1976 (4) TMI 235
Issues:
1. Question of limitation in filing the appeal.
2. Whether the appellant attempted to contravene the provisions of the Foreign Exchange Regulation Act.
3. Determining whether the appellant's actions constituted an attempt or preparation.
1. Question of Limitation:
The appeal before the Appellate Tribunal arose from an order imposing a penalty on the appellant for contravening the Foreign Exchange Regulation Act. The issue of limitation was raised as the memorandum of appeal was received after the prescribed period. The appellant argued that the limitation should be calculated from the date of service on his advocate, while the department contended it should be from the date of service on the appellant. The Tribunal held that even if service on the advocate was considered as service on the appellant, the appeal could still be entertained due to the Tribunal's powers under the Act, allowing examination of the legality of the order beyond the 90-day limit.
2. Attempted Contravention of the Act:
The appellant was found guilty of attempting to contravene the Act by receiving money from a person outside India without using authorized channels. The appellant's statement, supported by letters seized from his premises, revealed his intention to collect money from an individual based on coded instructions. The Tribunal rejected the appellant's retraction of the statement, as it was corroborated by evidence. However, it was crucial to determine whether the appellant's actions constituted an attempt under the Act.
3. Attempt vs. Preparation:
The Tribunal analyzed whether the appellant's actions amounted to an attempt or mere preparation under the law. Referring to legal precedents, the Tribunal highlighted the thin line between preparation and attempt. Applying the test laid down by the Supreme Court, the Tribunal concluded that the appellant's actions, limited to telephoning the intended recipient and not proceeding further, did not reach the threshold of an attempt. The Tribunal found that the appellant's activities had not progressed beyond preparation, leading to the setting aside of the impugned order and the refund of the penalty amount deposited.
This detailed analysis of the judgment addresses the issues of limitation, attempted contravention of the Act, and the distinction between attempt and preparation, providing a comprehensive overview of the Tribunal's decision and legal reasoning.
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1976 (4) TMI 234
Issues Involved:
1. Demand and acceptance of bribe.
2. Investigation and evidence collection.
3. Acquittal of co-accused.
4. Presumption under Section 4(1) of the Prevention of Corruption Act.
5. Competence of the High Court to convict under Section 161 with the aid of Section 34, Penal Code.
Issue-wise Detailed Analysis:
1. Demand and Acceptance of Bribe:
The appellant, a Head Constable, was accused of demanding and accepting a bribe from Ghanshamsinh to avoid arrest on a false charge of abduction. The appellant initially demanded Rs. 2,000, which was later reduced to Rs. 1,000, with Rs. 500 to be paid immediately. The prosecution's case was supported by the testimonies of Ghanshamsinh (P.W. 1), Panch Mahendra (P.W. 4), and Inspector Desai (P.W. 8). The appellant admitted to accepting the money but claimed it was given to him by Mahendra, who falsely represented himself as a relative of the Sub-Inspector.
2. Investigation and Evidence Collection:
Inspector Desai recorded Ghanshamsinh's complaint and set up a trap with tainted currency notes. Upon receiving the signal, the police party recovered the notes from the appellant's drawer. The presence of anthracene powder on the hands of the appellant and Ghanshamsinh, but not on Mahendra, corroborated the prosecution's version. The trial judge's rejection of the prosecution's case was based on speculative grounds without evidence.
3. Acquittal of Co-accused:
The High Court acquitted Accused 1 due to lack of independent corroboration of the demand for a bribe. However, this acquittal did not affect the evidence against the appellant, who was found to have demanded and accepted the bribe independently. The appellant's actions were corroborated by reliable testimony and physical evidence.
4. Presumption Under Section 4(1) of the Prevention of Corruption Act:
The statutory presumption under Section 4(1) was fully attracted upon proof of the appellant accepting the bribe. The appellant failed to rebut this presumption with credible evidence. The High Court found the appellant's defense, including the alleged enmity with Ghanshamsinh and the supposed lack of a formal complaint, insufficient to displace the presumption of guilt.
5. Competence of the High Court to Convict Under Section 161 with the Aid of Section 34, Penal Code:
The appellant contended that the High Court could not convict him under Section 161 simpliciter since the charge was framed under Section 161 read with Section 34. The High Court clarified that despite the charge's wording, the appellant was aware of the specific allegations against him, and no prejudice was caused. The technical defect in the charge was cured under Section 537 of the Criminal Procedure Code.
Conclusion:
The Supreme Court upheld the High Court's judgment, affirming the appellant's conviction under Section 161, Penal Code, and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The appeal was dismissed, confirming the rigorous imprisonment sentence for the appellant.
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1976 (4) TMI 233
Issues Involved:
1. Taxation of court-fees in proportionate cost orders.
2. Taxation of advocate's fees in proportionate cost orders.
Detailed Analysis:
Issue 1: Taxation of Court-Fees in Proportionate Cost Orders
The primary issue addressed is whether court-fees should be taxed based on the claim actually allowed in the appeal or in proportion to the entire claim by finding a percentage of success. The judgment clarifies that the prevalent practice in the High Court of Bombay, continued by the Gujarat High Court, is to tax court-fees on the part of the claim that succeeded. This practice was upheld by the Division Bench in First Appeal No. 1033 of 1960, which found it just and fair to award costs based on the claim allowed, as if the appellant had restricted his appeal to that part of the claim. The Full Bench concurs with this view, emphasizing that court-fees should be taxed on the amount of the claim actually allowed, as this method aligns with the principle of indemnity. The appellant is entitled to recover the amount of court-fees paid on the successful part of the claim, ensuring no penalty for claiming a larger amount initially.
Issue 2: Taxation of Advocate's Fees in Proportionate Cost Orders
The second issue pertains to whether advocate's fees should be taxed on the amount of claim allowed or disallowed, or on a percentage basis. The earlier Division Bench ruling in 1967 had adopted a different standard for advocate's fees, suggesting that they should be taxed on the whole amount claimed in the appeal and then apportioned based on the success percentage. The Full Bench agrees with this approach, noting that advocate's fees are incurred by both parties and should be divided proportionately. This method ensures fairness and indemnifies parties for legitimate expenditure incurred in prosecuting and defending the appeal. The judgment highlights that while court-fees are strictly adhered to based on a slab system, advocate's fees often exceed the prescribed rates in practice, justifying the need for proportionate apportionment.
Conclusion:
The Full Bench concludes that the current practice of taxing court-fees on the claim allowed and advocate's fees on the entire claim, apportioned based on success, is just and proper. This approach aligns with the fundamental principle of indemnity and ensures fair recompense for legal expenses. The judgment reaffirms the established practice, emphasizing its consistency and fairness over the past decade. The matter is referred back to the Division Bench for necessary orders in light of these observations.
Judgment Summary:
- Question 1: Court fees are to be taxed according to the slab system on the claim actually allowed in the appeal.
- Question 2: Advocate's fees are to be taxed as per the table of fees on the entire claim in the appeal and apportioned based on the percentage of success.
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1976 (4) TMI 232
Issues:
- Whether the State can be compelled by a writ of mandamus to make a reference under Section 10(1) of the Industrial Disputes Act.
Analysis:
1. The case involved an appeal where the appellant's employment was terminated, and he demanded reinstatement. The Conciliation Officer initiated proceedings, but no settlement was reached, leading to a report sent to the State Government.
2. The State Government decided not to refer the case to the Labour Court, stating that the appellant, as an Electrical Foreman with a salary exceeding Rs. 500 per month, did not fall under the definition of a "workman" as per the Industrial Disputes Act.
3. The appellant sought a writ of mandamus under Article 226 of the Constitution to compel the State to make a reference, but the High Court dismissed the application.
4. The appellant argued that the question of whether he was a workman should be decided by the Labour Court and not the State Government. He contended that the issue raised questions of fact and law that only the Labour Court could adjudicate.
5. The relevant sections of the Industrial Disputes Act were discussed, emphasizing the role of the appropriate Government in referring disputes for adjudication.
6. Previous judgments were cited to establish that the decision of the Government under Section 10(1) and 12(5) of the Act is administrative and not judicial or quasi-judicial.
7. The Court clarified that in considering a writ of mandamus against the Government's decision, it does not sit in appeal but may intervene if the Government's reasons were based on irrelevant considerations.
8. A past case was referenced where the Government's refusal to refer a dispute for adjudication was deemed improper due to irrelevant considerations, leading to the issuance of a writ of mandamus.
9. In the current case, the State Government's decision was based on the appellant not meeting the definition of a workman, thus justifying the refusal to make a reference for adjudication.
10. The High Court's dismissal of the application was upheld, and the appeal was consequently dismissed, with each party bearing their own costs.
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1976 (4) TMI 231
Issues:
- Compliance with the rules of natural justice in the enquiry under Rule 4 of the Land Acquisition (Companies) Rules, 1963.
Detailed Analysis:
The judgment involves three appeals challenging a High Court decision related to land acquisition proceedings under the Land Acquisition Act, 1894. The appeals questioned the compliance with the rules of natural justice in the enquiry under Rule 4 of the Land Acquisition (Companies) Rules, 1963. The appeals arose from notifications issued under Sections 4 and 6 of the Act for the acquisition of lands for establishing an industrial estate. The High Court allowed the petitions filed by the landowners, setting aside the Section 6 notification and mandating completion of the statutory enquiry under Rule 4 with adherence to natural justice principles.
The central question before the Supreme Court was whether the enquiry under Rule 4 of the Rules necessitates adherence to the principles of natural justice. The Court referred to previous judgments emphasizing that rules of natural justice may be implied based on the duty to be performed under a statute. The Court analyzed the provisions of Rule 4, which outline the requirements for the appropriate Government and the Collector in land acquisition proceedings.
Rule 4 mandates the appropriate Government to direct the Collector to report on specific matters when a Company applies for land acquisition. The Collector is required to conduct an enquiry into these matters, including consultation with the Senior Agricultural Officer in case of agricultural land, determination of compensation, and ascertaining the Company's offer to interested persons. The rule underscores the importance of the enquiry for the affected parties.
The Court concluded that the Collector's enquiry, crucial for assessing the Company's efforts and compensation, must adhere to natural justice principles. Despite the rule's silence on the method of enquiry, the Court held that fairness demands affording affected parties a reasonable opportunity to be heard and present evidence. The Court highlighted the evolving concept of natural justice and the blurred line between administrative and quasi-judicial functions.
The Court cited a previous judgment to support its stance, emphasizing that landowners have the right to be heard during the enquiry under Rule 4 to establish the Company's negotiation efforts. The Court rejected the State's argument that owners could be heard during a later enquiry under Section 5-A, stating that such an enquiry may not occur. Ultimately, the Court answered the question in the affirmative, affirming the importance of natural justice in the enquiry process and dismissing the appeals while leaving the parties to bear their own costs.
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1976 (4) TMI 230
Issues:
1. Interpretation of the Bombay Personal Inam Abolition Act, 1953.
2. Validity of the High Court's order directing payment of political pension.
3. Review of the High Court's order based on error.
Interpretation of the Bombay Personal Inam Abolition Act, 1953:
The case involved a dispute regarding the payment of a political pension to Sardar Shermia Bapumia, which was discontinued upon the enforcement of the Bombay Personal Inam Abolition Act, 1953. The appellant contended that the pension did not fall under the Act's definition of "personal inam" and thus could not be abolished. The High Court initially ordered the State to pay the pension based on the representation that it was not a personal inam. However, the appellant later sought a review, claiming that the pension had been resumed under different rules. The High Court rejected the review application, citing it as time-barred under the Limitation Act.
Validity of the High Court's order directing payment of political pension:
The appellant challenged the High Court's order on the grounds that no mandamus should have been issued for arrears of political pension and that the relief granted exceeded what was requested. The appellant argued that by deleting the words "in perpetuity" from the prayer clause, the claim was limited to the pension for the writ-applicant's lifetime only. The High Court's direction to pay the pension to the heirs of the deceased was deemed excessive and beyond the mutual concessions made by the parties. The Court acknowledged the concession made by the applicant and held that it was unfair for the appellant to retract from it post the pensioner's death.
Review of the High Court's order based on error:
The Supreme Court found merit in the appellant's argument regarding the High Court's error in directing payment of the pension to the deceased pensioner's heirs. The Court held that the High Court erred in extending the payment to the heirs beyond the lifetime of the pensioner, as the claim had been limited to the pension payable during the pensioner's lifetime. Consequently, the Supreme Court partially allowed the appeal, modifying the High Court's order to limit the amount payable to arrears of pension due to the deceased pensioner only, from August 1, 1953, until the date of the pensioner's death in 1964. The Court left the parties to bear their own costs in the circumstances of the case.
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1976 (4) TMI 229
Issues Involved:
1. Validity of Section 4 notification under the Land Acquisition Act, 1894.
2. Requirement of simultaneous or immediate publication of the substance of the notification in the concerned locality.
3. Timeframe for filing objections under Section 5A of the Land Acquisition Act, 1894.
Issue-wise Detailed Analysis:
1. Validity of Section 4 Notification under the Land Acquisition Act, 1894:
The petitioners challenged the legality of the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894, arguing that these notifications were invalid. The court examined whether the notification under Section 4 was valid, considering the statutory requirements. The court referred to the Supreme Court's decision in *Khub Chand v. State of Rajasthan*, which established that the giving of public notice is mandatory. The court concluded that a notification issued under Section 4 without complying with the mandatory direction of giving public notice would be void, and the land acquisition proceedings taken pursuant thereto would also be void.
2. Requirement of Simultaneous or Immediate Publication of the Substance of the Notification in the Concerned Locality:
The core issue was whether the publicity of the substance of the notification in the concerned locality had to be given simultaneously with or immediately after the publication in the official Gazette. The petitioners contended that failing to do so would render the notification and subsequent acquisition proceedings illegal. The court analyzed the relevant provisions of the Act, particularly Sections 4(1) and 5A(1), and concluded that the notification under Section 4 would be valid only when both conditions mentioned in Section 4(1) were complied with. The court held that the substance of the notification must be published in the concerned locality simultaneously or at least immediately after the publication in the official Gazette. The court relied on Supreme Court decisions in *Narinderjit Singh v. State of U.P.* and *State of Mysore v. Abdul Razak Sahib*, which supported this view.
3. Timeframe for Filing Objections under Section 5A of the Land Acquisition Act, 1894:
The court examined the timeframe for filing objections under Section 5A(1) of the Act. The Deputy Advocate General argued that the time for filing objections would start from the date of the publication of the substance of the notification in the concerned locality. However, the court found this contention fallacious. The plain reading of Section 5A(1) indicated that the person interested gets 30 days for filing objections after the issue of notification in the Official Gazette. The court clarified that the words 'issue of notification' in Section 5A(1) connoted the same meaning as 'publication of notification' in the official Gazette as used in Section 4(1). Therefore, the time for filing objections starts from the date of the publication of the notification in the official Gazette.
Conclusion:
The court held that the publicity of the substance of the notification in the concerned locality had to be given simultaneously or at least immediately after the publication of the notification in the official Gazette. The court emphasized that the right to file objections under Section 5A(1) is a valuable right, and any delay in the publication of the substance in the locality would curtail this right. The court found that in the present case, the publication of the substance in the concerned locality was made on the 29th day after the publication in the official Gazette, which was not in compliance with the statutory requirements. Consequently, the court quashed the impugned notifications issued under Sections 4 and 6 of the Act.
Separate Judgments Delivered:
All three judges, Prem Chand Jain, Bhupinder Singh Dhillon, and Ajit Singh Bains, agreed with the judgment, and no separate judgments were delivered.
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1976 (4) TMI 228
Issues Involved:
1. Whether it is sufficient for the landlord to merely state in the petition that he required the premises for his own bona fide occupation without also averring that he had no other reasonably suitable accommodation as stated in Section 14(1)(e) of the Delhi Rent Control Act, 1958.
2. Whether the exclusive occupation of a close relation of the tenant, like a brother, can be inferred as parting with possession under Section 14(1)(b) of the Delhi Rent Control Act, 1958.
Detailed Analysis:
1. Sufficiency of Landlord's Pleading Under Section 14(1)(e):
Section 14(1)(e) of the Delhi Rent Control Act, 1958, requires the landlord to prove three conditions for eviction:
1. The landlord is the owner of the premises.
2. The requirement of the premises for occupation is bona fide.
3. The landlord has no other reasonably suitable residential accommodation.
The Tribunal had noted that the landlord did not specifically state he had no other reasonably suitable accommodation. The landlord's simple assertion of bona fide need was deemed insufficient. The judgment emphasized that the statutory conditions must be strictly complied with, and the absence of a specific averment that the landlord had no other suitable accommodation rendered the eviction application unsustainable. The court referenced several precedents, including the Supreme Court's decision in Attar Singh v. Inder Kumar, which confirmed that the landlord must plead and prove the lack of other suitable accommodation.
2. Parting with Possession Under Section 14(1)(b):
The Tribunal found that the second appellant (tenant's brother) was in exclusive possession of the premises, implying parting with possession by the tenant. However, the judgment clarified that mere exclusive possession by a close relation, like a brother, without more, does not constitute parting with possession under Section 14(1)(b). The legal possession must be transferred, and the tenant must divest himself of both physical possession and the right to possession.
The court referenced several cases, including Hazari Lal v. Giani Ram, which established that parting with possession requires the tenant to give up legal possession, not just physical presence. The judgment concluded that the mere presence of the tenant's brother did not amount to parting with possession, as there was no evidence of legal transfer or subletting.
Conclusion:
The court reversed the decrees of the lower courts, holding that:
1. The landlord's failure to specifically plead the lack of other suitable accommodation under Section 14(1)(e) was fatal to the eviction application.
2. The mere occupation by the tenant's brother did not amount to parting with possession under Section 14(1)(b).
The eviction application was dismissed with costs throughout.
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1976 (4) TMI 227
Issues:
1. Constitutional validity of provisions of Punjab Excise Act and Rules.
2. Cancellation and re-auction of liquor license.
3. Liability of licensee for payment of license fee.
4. Demand notices for recovery of deficiency in license fee.
5. Applicability of Article 226 of the Constitution.
Analysis:
The judgment by the Supreme Court of India involved several key issues. Firstly, the constitutional validity of the provisions of the Punjab Excise Act and Rules was challenged by the appellants. However, the Court noted that these issues had already been settled in a previous judgment and were not open for re-litigation. The Court emphasized that the licensees were bound by the terms and conditions they agreed to at the auction, and attempting to avoid contractual obligations through legal challenges was not permissible.
Regarding the cancellation and re-auction of the liquor license, the appellants argued that the Financial Commissioner should have canceled the license immediately upon default in payment. However, the Court found that the conditions of the license did not limit the licensee's liability to the amount of liquor actually lifted, and the licensees were obligated to pay the full license fee as per the agreed terms.
The liability of the licensee for the payment of the license fee was a central issue in the case. The Court highlighted that the licensees had defaulted in payment of installments, leading to demands for the recovery of the deficiency in license fee. The Court held that the demands were raised for the unpaid balance of the license fee after adjusting the amounts due against security deposits.
Furthermore, the Court addressed the applicability of Article 226 of the Constitution, emphasizing that licensees who knowingly bid on liquor contracts must abide by the terms of the contract they voluntarily entered into. The Court stated that licensees could not seek to avoid contractual obligations after benefiting from the licenses for the entire period without fulfilling their financial obligations.
In conclusion, the Supreme Court dismissed the appeals, upholding the decisions of the High Court. The Court found that the licensees were attempting to avoid contractual obligations after operating the licenses for the full term without fulfilling their financial responsibilities. The Court refused to grant relief under Article 226 of the Constitution, emphasizing the importance of upholding contractual agreements voluntarily entered into by the parties.
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1976 (4) TMI 226
Issues:
1. Interpretation of the provisions of the Payment of Wages Act and the Rules framed thereunder.
2. Application of the principles of suspension of limitation or right of action in relation to the plaintiff's claim for arrears of pay.
3. Examination of the Limitation Act and its impact on the plaintiff's claim for arrears of salary.
4. Consideration of relevant case laws and judicial opinions on the suspension of limitation or right of action.
Detailed Analysis:
1. The judgment involved two companion appeals arising from a Special Civil Suit where the plaintiff, an employee of a corporation, sought recovery of arrears of pay, provident fund, gratuity, and other benefits. The plaintiff had previously filed a suit challenging his dismissal, which was partially allowed. The Corporation filed an appeal challenging the decree, arguing that the suit was barred under the Payment of Wages Act. The Court analyzed the provisions of the Act and ruled that the suit was not barred by any of the Act's provisions or the Minimum Wages Act.
2. The plaintiff's claim for arrears of pay beyond three years from the date of the suit was contested, with the plaintiff seeking exemption from the limitation period based on the suspension of limitation principles. The Court examined various judgments, including one from the Allahabad High Court, regarding the suspension of limitation. However, the Court held that the Limitation Act is conclusive and does not allow for the general suspension of limitation or right of action, ultimately rejecting the plaintiff's contention for relaxation of the limitation bar.
3. The Court delved into the provisions of the Limitation Act, emphasizing that all questions of limitation must be decided by the Act itself, and no separate principle can be invoked to circumvent its provisions. Referring to relevant Supreme Court and Privy Council decisions, the Court reiterated that the Act's provisions are peremptory, and Courts cannot go beyond them to relieve litigants from the limitation bar. The Court applied Article 7 of the Limitation Act to the plaintiff's claim for arrears of salary, confirming that the plaintiff was entitled to arrears for three years only from the date of the suit.
4. Ultimately, the Court dismissed both appeals, confirming the trial court's judgment and decree. The plaintiff's claim for exemption from the limitation bar was rejected, and the Court ruled that no obviation of the bar of limitation could be allowed based on the general suspension of limitation or right of action. The Court ordered the Corporation to bear the court fees on the appeal due to the plaintiff's technical plea of limitation, issuing a certificate to the Collector accordingly.
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1976 (4) TMI 225
Issues:
1. Admittance of petition for winding up a company.
2. Appointment of a provisional liquidator.
3. Dispute over unpaid license fees and debt.
Analysis:
1. The judgment addresses Company Appeals Nos. 26 and 27 of 1975, challenging orders by the Company Judge. The first order admitted a petition for winding up the company due to a prima facie case established, while the second order appointed a provisional liquidator under section 450 of the Companies Act. The appeals were heard together, with additional arguments allowed later.
2. The case involves a dispute between the appellants and the respondents over unpaid license fees for a building leased by the respondents to the appellants. The appellants failed to pay fees from May 1971 onwards, leading to a legal battle. The Company Judge found the appellants indebted to the respondents and observed insolvency based on financial records and non-payment history.
3. The appellants argued that the amounts were payable as rent, not as license fees, but failed to produce any document supporting a tenancy agreement. The Company Judge suggested a deposit of Rs. 1 lac to test solvency, but the appellants contested jurisdiction and failed to deposit the amount. The judgment emphasized the appellants' continuous collection of fees without payment to the respondents, leading to the conclusion that a winding-up petition was justified.
4. The judgment cites legal precedents to reject appellants' arguments, emphasizing the admitted debt and the appellants' failure to dispute it. The court upheld the Company Judge's decision, affirming the prima facie case for winding up the company. Additionally, the appointment of a provisional liquidator was deemed necessary to prevent further financial mismanagement by the appellants.
5. Ultimately, both appeals were dismissed, with no costs awarded. A related application for vacation of a stay order was also dismissed. The judgment underscores the appellants' continuous debt accumulation, failure to pay, and lack of legal basis for disputing the debt, leading to the affirmation of the winding-up petition and appointment of a provisional liquidator.
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1976 (4) TMI 224
Issues Involved:
1. Denial of permission to visit Germany for defense preparation.
2. Non-provision of relevant documents for inspection.
3. Lack of adequate and reasonable opportunity for defense.
4. Malicious false accusation by Gottwald.
5. Bias of the Chairman of the Board of Enquiry.
6. Adverse interest of S. N. Hussain against the appellant.
7. Denial of services of a professional lawyer and a preferred Railway officer for defense.
Detailed Analysis:
Issue 1: Denial of Permission to Visit Germany
The appellant claimed that he was not allowed to visit Germany to collect essential information for his defense, which was a violation of natural justice and Article 311 of the Constitution. The court reviewed the correspondence between the appellant and the Chairman of the Board of Enquiry and concluded that it was unnecessary for the appellant to visit Germany for his defense preparation. The Board provided ample opportunities for the appellant to participate in the enquiry in Germany, but the appellant adopted a non-cooperative attitude, which the court found to be an attempt to create grounds for attacking the departmental enquiry.
Issue 2: Non-Provision of Relevant Documents
The appellant argued that he was not provided with certain necessary documents. The court, agreeing with the High Court, held that all relevant documents were made available to the appellant either for inspection or as copies. The appellant's claims for additional documents were found to be unfounded and aimed at delaying the enquiry.
Issue 3: Lack of Adequate and Reasonable Opportunity
The appellant contended that he was not given a reasonable opportunity to defend himself. The court reviewed the extensive correspondence and the Board's efforts to conduct the enquiry fairly. It found that the appellant consistently adopted delaying tactics and refused to participate in the enquiry, thus rejecting this submission as devoid of substance.
Issue 4: Malicious False Accusation by Gottwald
The appellant claimed that Gottwald's accusations were malicious and aimed at avoiding liquidated damages. The court rejected this argument, stating that Gottwald had nothing to gain and only to lose by falsely accusing the appellant. The court found no evidence that the claim for liquidated damages was given up due to the findings against the appellant.
Issue 5: Bias of the Chairman of the Board of Enquiry
The appellant alleged that the Chairman, M. A. Hussain, was biased against him. The court found no substantiation for this claim. The appellant's argument that Hussain had formed an opinion against him in 1958 was not supported by evidence. The court noted that the appellant did not object to Hussain's presence on the Board until after the enquiry concluded unfavorably for him.
Issue 6: Adverse Interest of S. N. Hussain
The appellant argued that S. N. Hussain was inimically disposed towards him. The court found no evidence of animus or adverse interest. It concluded that S. N. Hussain's actions were in the natural course of events and not motivated by personal bias.
Issue 7: Denial of Services of a Professional Lawyer and Preferred Railway Officer
The appellant was denied the services of a professional lawyer and a preferred Railway officer from India for his defense. The court referred to Rule 1730 of the Indian Railway Establishment Code, which prohibits the engagement of professional lawyers in departmental enquiries. The court found that the appellant was given a wide field of choice for his defense counsel and that the nature of the accusations did not require special expertise. The court concluded that no principle of natural justice was violated in this regard.
Conclusion:
The court dismissed the appeal, finding no merit in the appellant's contentions. The appellant's non-cooperative attitude and unfounded claims were seen as attempts to avoid the consequences of the enquiry. The judgment of the High Court was upheld, and the appellant's dismissal from service was maintained.
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1976 (4) TMI 223
Issues involved: Whether the Supreme Court can issue a non-bailable warrant for the arrest and committal to prison of an accused who had been acquitted by the High Court under Article 136 of the Constitution.
Judgment Details:
Issue 1: Power of Supreme Court to issue non-bailable warrant for arrest of acquitted accused:
The petitioner's counsel argued that the Supreme Court lacks the power to issue a non-bailable warrant for the arrest of an accused who has been acquitted by the High Court, as it would violate constitutional rights. However, the respondent's counsel contended that the Supreme Court, under Article 142 read with Article 136, has the authority to exercise powers similar to those of the High Court in such cases.
The Court rejected the petitioner's contentions, emphasizing the historical perspective of the Code of Criminal Procedure and the inherent powers of the High Court to secure the attendance of the accused during the appeal process. It was established that the Supreme Court, upon granting special leave to appeal against an order of acquittal, can exercise powers equivalent to those of the High Court under the Code.
The Court highlighted that the discretion to issue a bailable or non-bailable warrant rests with the Court, considering factors such as the nature of the offense, evidence, possibility of absconding, and public interest. Such discretionary jurisdiction is invoked sparingly in exceptional cases where the High Court's acquittal order is deemed perverse or results in a miscarriage of justice.
Moreover, the Court dismissed the argument that such orders violate fundamental rights, stating that they are made within the plenary jurisdiction conferred by the Constitution and do not deprive the accused of liberty unlawfully.
The Court concluded that the Supreme Court can indeed issue a non-bailable warrant for the arrest and committal to prison of an accused who had been acquitted by the High Court on a capital charge, in line with Articles 136 and 142 of the Constitution.
The Court declined to delve into the cases cited by the petitioner's counsel, as they were deemed irrelevant to the current issue.
In light of the above reasons, the Court answered the initial question in the affirmative and disposed of the references accordingly.
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1976 (4) TMI 222
Issues Involved:
1. Jurisdiction of the court after appointing an arbitrator under Section 8(2) of the Arbitration Act, 1940.
2. Validity of the court's order of reference to the arbitrator.
3. Grounds for setting aside the arbitration awards under Section 30 of the Arbitration Act, 1940.
Issue-wise Detailed Analysis:
1. Jurisdiction of the Court After Appointing an Arbitrator Under Section 8(2) of the Arbitration Act, 1940:
The primary issue in these appeals is whether the court, having appointed an arbitrator under Section 8(2) of the Arbitration Act, 1940, can proceed further to make an order of reference to the arbitrator. According to the respondent, the court becomes functus officio after appointing an arbitrator and has no jurisdiction to refer the matter to him.
The court observed that Section 8(2) of the Act empowers the court to appoint an arbitrator if the parties do not concur in the appointment within fifteen days after the service of notice. However, the court does not have the authority to make an order of reference to the arbitrator once the appointment is made. The Act contemplates three kinds of arbitration: arbitration without court intervention, arbitration with court intervention where there is no suit pending, and arbitration in suits. The provisions of Chapter II of the Act indicate that after the appointment of an arbitrator, the proceedings are to be outside the court, and the court's intervention is not required unless the occasion arises to remove the arbitrator under Section 11.
2. Validity of the Court's Order of Reference to the Arbitrator:
The court held that the validity of the order of reference depends upon the scope of Section 8. Section 8 does not contain any provision empowering the court to make an order of reference to the arbitrator, unlike Section 20(4), which explicitly provides for the court to make an order of reference to the arbitrator appointed by the parties or by the court. Therefore, the court concluded that it had no jurisdiction to make an order referring the disputes to the arbitrator after appointing him under Section 8(2).
3. Grounds for Setting Aside the Arbitration Awards Under Section 30 of the Arbitration Act, 1940:
The respondent argued that the awards should be set aside as invalid because the reference was incompetent. Section 30(c) of the Act states that an award can be set aside if it is "improperly procured or is otherwise invalid." The respondent contended that an award obtained on an invalid reference is also invalid and falls under this clause.
The court referred to the Privy Council's decision in Chhabbe Lal v. Kallu Lal, which held that the words "otherwise invalid" did not cover cases where the award was challenged on the ground of some invalidity outside the award itself. However, the court noted that the Arbitration Act, 1940, includes Section 32 and Section 33, which bar the institution of suits concerning arbitration agreements or awards and require challenges to be made through an application to the court. The court concluded that the words "or is otherwise invalid" in Section 30(c) are broad enough to cover all forms of invalidity, including the invalidity of the reference.
The court held that the awards in these appeals were nullities due to the invalid reference and were rightly set aside by the High Court. As a result, the appeals were dismissed with costs.
Conclusion:
The Supreme Court dismissed the appeals, affirming the High Court's decision that the court had no jurisdiction to make an order of reference to the arbitrator after appointing him under Section 8(2) of the Arbitration Act, 1940. The awards were set aside as invalid due to the incompetent reference, and the appeals were dismissed with costs.
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1976 (4) TMI 221
Issues Involved:
1. Acquittal by the Sessions Judge.
2. Conviction by the Judicial Commissioner.
3. Reliability of the sole eyewitness.
4. Omission of the assailant's name in the First Information Report (FIR).
5. Discrepancies in the prosecution's evidence.
6. Medical evidence and its corroboration.
7. Absence of the appellant from his house.
Detailed Analysis:
1. Acquittal by the Sessions Judge:
The appellant, Akoijam Ranbir Singh, was initially acquitted by the Sessions Judge of Manipur on the grounds of benefit of doubt. The Sessions Judge found significant discrepancies and improbabilities in the prosecution's case, leading to the acquittal on November 2, 1967.
2. Conviction by the Judicial Commissioner:
The State appealed the acquittal, and the Judicial Commissioner of Manipur convicted the appellant under Section 302 of the Indian Penal Code (IPC), sentencing him to life imprisonment. The Judicial Commissioner found the Sessions Judge's grounds for acquittal to be flimsy and insignificant, thereby overturning the initial judgment.
3. Reliability of the Sole Eyewitness:
Sanajoba Singh (P.W. 2) was examined as the only eyewitness to the incident. The Sessions Judge questioned his reliability, noting that his friends, Dorendro Singh (P.W. 3) and Raghumani Singh (P.W. 4), who were present during the initial altercation, did not intervene or witness the stabbing. The Sessions Judge found it improbable that they would leave their friend alone after he was beaten and threatened by the appellant.
4. Omission of the Assailant's Name in the FIR:
The name of the assailant was not mentioned in the FIR lodged by Ibotan Singh (P.W. 1). It was stated that Ibohal Singh had been stabbed by "somebody" and the "culprits" should be arrested. The Sessions Judge considered this omission significant, questioning why the name of the appellant was not disclosed if it was known to the witnesses.
5. Discrepancies in the Prosecution's Evidence:
The Sessions Judge noted discrepancies regarding the place of the incident and the absence of bloodstains near the verandah of Bharat Shoe House, where the stabbing allegedly took place. The prosecution's evidence did not explain why blood was found at three different places in the bazar.
6. Medical Evidence and Its Corroboration:
The Judicial Commissioner emphasized that the medical evidence corroborated the eyewitness account, noting the presence of two stab wounds on the deceased. However, the Sessions Judge found this argument unconvincing, pointing out that the prosecution's version had inherent improbabilities and inconsistencies.
7. Absence of the Appellant from His House:
The Judicial Commissioner attached importance to the appellant's absence from his house, interpreting it as indicative of guilt. However, the Sessions Judge did not find this sufficient to overturn the acquittal, emphasizing that the evidence on record did not conclusively prove the appellant's guilt.
Conclusion:
The Supreme Court found that the Sessions Judge's acquittal was based on a proper appreciation of the evidence and the significant infirmities in the prosecution's case. The Court held that the Judicial Commissioner erred in overturning the acquittal, as the evidence was not sufficient to conclusively prove the appellant's guilt. The appeal was allowed, and the appellant, Akoijam Ranbir Singh, was acquitted and ordered to be set at liberty forthwith.
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1976 (4) TMI 220
Issues Involved:
1. Interpretation of the term "specially empowered" in s. 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956.
2. Jurisdiction of the Judicial Magistrate, First Class, Rajkot to try offences under the Act based on the State Government notification.
Summary:
1. Interpretation of "specially empowered":
The controversy centers around the interpretation of "specially empowered" in s. 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956. The term "Magistrate" is defined in s. 2(c) as "a District Magistrate, a Sub-Divisional Magistrate of the First Class specially empowered by the State Government, by notification in the Official Gazette, to exercise jurisdiction under the Act." The judicial opinion is divided into two views: the narrow view and the broad view. The narrow view suggests that "specially" refers to the mode of empowerment, implying selection or discrimination regarding the individual on whom the power is conferred. The broad view, however, posits that "specially" refers to the special purpose of the empowerment and not the mode, allowing the State Government to confer powers on some or all Magistrates of the First Class.
The Court preferred the broad view, emphasizing that the term "specially" qualifies the word "empowered" and not the person. This interpretation aligns with the purpose of the Act, which aims to suppress immoral traffic and requires a special machinery for enforcement. The Court noted that the narrow view introduces unnecessary inconvenience and confusion, while the broad view promotes the object of the provision and ensures smooth working.
2. Jurisdiction of the Judicial Magistrate, First Class, Rajkot:
The State Government issued a notification on July 22, 1958, empowering all Judicial Magistrates of the First Class to exercise jurisdiction under the Act. The High Court of Gujarat had previously ruled that this notification did not make Mr. Modha, Magistrate First Class Rajkot, a "Magistrate of the first class specially empowered" within the meaning of s. 2(c) of the Act, thus lacking jurisdiction to try the offences.
The Supreme Court, however, held that the notification did indeed confer jurisdiction on the Judicial Magistrate First Class Rajkot. The Court reasoned that the empowerment of all Magistrates of the First Class by virtue of their office to try offences under the Act is "special" and not "general." This interpretation is consistent with the trend of recent decisions and the principle that a person can be specially empowered by virtue of their office.
Conclusion:
The Supreme Court allowed the appeals, set aside the judgment of the High Court, and directed that the cases be sent back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law, emphasizing the need for expedited disposal. Appeals allowed.
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1976 (4) TMI 219
Issues Involved:
1. Validity of the Standing Committee's decisions based on quorum.
2. Interpretation of Regulations 31 and 32.1 of the Punjab University Calendar.
3. Jurisdiction of the Standing Committee with less than full membership participation.
Summary:
1. Validity of the Standing Committee's decisions based on quorum:
The Supreme Court examined whether the decisions of the Standing Committee, which were made by only two out of its three members, were valid. The High Court had set aside these decisions, arguing that all three members should have participated. The Supreme Court held that the Syndicate, which appointed the Standing Committee, had the incidental power to fix the quorum for its meetings. The quorum, defined as the minimum number of members necessary to transact business validly, was fixed at two by the Syndicate. The Court found no valid reason to challenge this quorum fixation, emphasizing that the Syndicate's power to appoint the Committee inherently included the power to determine its quorum.
2. Interpretation of Regulations 31 and 32.1 of the Punjab University Calendar:
The Supreme Court analyzed Regulations 31 and 32.1, which govern the appointment and decision-making process of the Standing Committee. Regulation 31 allows the Syndicate to appoint a Standing Committee annually to handle cases of misconduct and unfair means in examinations. Regulation 32.1 states that if the Committee is unanimous, its decision is final, and if not, the matter must be referred to the Vice-Chancellor. The Court clarified that the unanimity referred to in Regulation 32.1 pertains to the members present and forming the quorum, not necessarily all appointed members. Thus, the decisions made by the two-member quorum were valid as long as they were unanimous.
3. Jurisdiction of the Standing Committee with less than full membership participation:
The respondents argued that the decisions were without jurisdiction since not all three members participated. The Supreme Court dismissed this argument, stating that the quorum fixation did not preclude all members from attending meetings. Notice of meetings was given to all members, and it was up to each member to attend. The Court found no evidence that the third member's absence would have changed the unanimous decisions of the two present members. The Court emphasized that Regulation 32.1 does not affect the Syndicate's power to fix the quorum and that the regulation's purpose is to ensure unanimity among the members present, not to mandate full participation.
Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's majority decision, and upheld the minority judgment. The writ petitions filed by the respondents were dismissed, affirming the validity of the Standing Committee's decisions made by the two-member quorum. The Court highlighted the importance of judicial consistency and the established precedents supporting the validity of decisions made by a quorum of two members. The appeals were allowed with no order as to costs.
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1976 (4) TMI 218
Issues Involved:
1. Validity of the permit granted by the Regional Transport Authority (RTA).
2. Consideration of additional evidence by the State Transport Appellate Tribunal (STAT).
3. Compliance with natural justice principles.
4. Interpretation of Sections 47, 57(3), and 57(4) of the Motor Vehicles Act, 1948.
5. Ultra vires challenge to Rule 15 of the Andhra Pradesh State Transports Appellate Tribunal Rules, 1971.
Issue-wise Detailed Analysis:
1. Validity of the permit granted by the Regional Transport Authority (RTA):
The appellant and the first respondent applied for permits to ply a stage carriage on a specified route in Krishna District, Andhra Pradesh. The RTA granted one permit to the appellant, which was later switched to the first respondent by the STAT. The STAT considered a fresh ground that the appellant was guilty of a transport tax violation. The Supreme Court emphasized that public interest is the paramount consideration in awarding or refusing transport permits, as per Section 47 of the Motor Vehicles Act, 1948.
2. Consideration of additional evidence by the State Transport Appellate Tribunal (STAT):
The STAT considered additional evidence, specifically a certificate proving the appellant's transport tax violation, which was not initially included in the representations under Section 57(3) of the Motor Vehicles Act. Rule 15 of the Andhra Pradesh State Transports Appellate Tribunal Rules, 1971, allows the Tribunal to admit additional evidence under certain conditions. The Supreme Court held that the STAT acted within its discretionary power to admit such evidence, provided it gave a fair opportunity to the affected party to respond.
3. Compliance with natural justice principles:
The Supreme Court agreed that natural justice principles must inform the exercise of power by administrative tribunals, ensuring affected parties have a fair opportunity to meet any evidence against them. In this case, the High Court noted that the canons of natural justice were adhered to, as the appellant was given an opportunity to respond to the additional evidence considered by the STAT.
4. Interpretation of Sections 47, 57(3), and 57(4) of the Motor Vehicles Act, 1948:
Section 47 emphasizes public interest in the adjudication of transport permits. Sections 57(3) and 57(4) outline the procedure for applying for and granting permits, including the submission of representations. The Supreme Court clarified that the focus is on selecting the applicant who best serves public interest, and the process should be flexible and not rigidly adhere to the formalities of civil court procedures. The Court held that the STAT could consider relevant information at any stage, provided natural justice principles are followed.
5. Ultra vires challenge to Rule 15 of the Andhra Pradesh State Transports Appellate Tribunal Rules, 1971:
The appellant challenged the vires of Rule 15, arguing that it violated the substantive provisions of the Motor Vehicles Act. The Supreme Court held that Rule 15 is intra vires and aligns with the statutory provisions of Sections 47, 57, and 64 of the Act. The rule allows the Tribunal to admit additional evidence to ensure just orders, reflecting the legislative intent of promoting efficient public transport.
Conclusion:
The Supreme Court dismissed the appeal, upholding the validity of Rule 15 and the STAT's decision to consider additional evidence. The Court emphasized the importance of public interest in the adjudication of transport permits and the need for flexible procedures in administrative tribunals. The appeal was dismissed with costs.
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1976 (4) TMI 217
Issues involved: Interpretation of the word "sale" in section 73(i)(iv) of the Bombay Municipal Boroughs Act, 1923 and reconsideration of the decision in Burmah Shell's case.
Summary:
The Supreme Court heard an appeal regarding the interpretation of the word "sale" in section 73(i)(iv) of the Act and the need for reconsideration of the decision in Burmah Shell's case. The case involved two petitioners trading in commodities within the Municipal Borough of Broach, raising grievances against the Municipality's collection and refusal of certain amounts related to octroi levy. The High Court held that refund was claimable for goods meant for export, even if a sale transaction occurred within the octroi limits. It interpreted the word "sale" broadly, in line with the Sale of Goods Act. The petitioners sought special leave from the Supreme Court, which decided to examine the Burmah Shell's case for clarity on the issue.
In the Burmah Shell's case, the Court clarified that octroi was leviable on goods brought for consumption, use, or sale within the local area. It held that the word "sale" included bringing goods for use or consumption by buyers within the area, even if not expressly mentioned in the octroi description. The Court distinguished between goods brought for consumption within the area and those re-exported. It established the liability for octroi based on the purpose of bringing goods into the local area.
The Supreme Court found that the present case fell within the principles laid down in the Burmah Shell's case and upheld the interpretation of the law provided therein. The Court noted that no new arguments were presented to warrant a reconsideration of the previous decision. The appeal was allowed, setting aside the High Court's judgment and directing the respondents to determine the claims of the appellant in accordance with the Burmah Shell's case. The appellant was awarded costs.
This judgment clarifies the interpretation of the word "sale" in octroi levy cases and affirms the principles established in the Burmah Shell's case regarding the taxation of goods brought into local areas for consumption, use, or sale.
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1976 (4) TMI 216
Issues Involved:
1. Prescriptive easement rights for prawn-fishing and agricultural purposes.
2. Application of the principle of res judicata.
Summary:
Prescriptive Easement Rights:
The litigation concerns the right of two adjacent landowners to catch prawns on their respective lands. The appellant owns Survey No. 673, which is water-logged and used for prawn-fishing. The respondents own adjacent lands, including Survey No. 672, and claim a prescriptive easement to take water from the appellant's land for both fishing and agricultural purposes. The appellant objected, leading to two civil suits: one by the appellant for an injunction against the respondents (Civil Suit No. 666 of 1954) and one by the respondents for an injunction against the appellant (Civil Suit No. 5 of 1957).
The trial court decreed the appellant's suit partly, granting an injunction against the respondents for prawn-fishing but upholding their easementary right for agricultural purposes. The respondents' suit was dismissed concerning fishing rights but upheld for agricultural purposes. Both parties filed cross-appeals, which were dismissed by the Subordinate Judge, confirming the trial court's decrees.
Application of Res Judicata:
The respondents filed a Second Appeal in the High Court against the decree in the appellant's suit. The High Court remanded the appeal for fresh hearing, rejecting the appellant's plea of res judicata. On remand, the Subordinate Judge dismissed the appeal, confirming the earlier decision. The respondents filed another Second Appeal, which was allowed by the High Court, granting them rights for prawn-fishing as well. The appellant's plea of res judicata was again rejected.
The Supreme Court held that the issue of respondents' right to the flow of water for fishing purposes was barred by res judicata. The decision of the District Court in the respondents' suit, which was not appealed against, became final and could not be reopened in the Second Appeal arising out of the appellant's suit. The High Court's assumption that the two suits were disposed of by a common judgment was incorrect. The Supreme Court concluded that the High Court erred in allowing the respondents' appeal and set aside its judgment, restoring the District Court's decision.
Conclusion:
The appeal was allowed, and the judgment of the High Court was set aside, restoring the District Court's judgment. The respondents' right to the flow of water for agricultural purposes from 15th Meenam to 15th Vrischigam every year was clarified to remain unaffected.
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