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1971 (1) TMI 129
Issues Involved:
1. Pecuniary jurisdiction of the court.
2. Jurisdiction of the court versus the Charity Commissioner.
3. Cause of action against the defendants.
4. Maintainability of the suit without leave of the court under Order 2, Rule 4 of the Civil Procedure Code (CPC).
5. Maintainability of the suit as framed.
6. Validity and service of notices under Section 80 of the CPC.
7. Entitlement of plaintiffs to maintain the suit.
8. Allegation of multifariousness in the suit.
Issue-wise Detailed Analysis:
1. Pecuniary Jurisdiction of the Court:
The court affirmed its pecuniary jurisdiction to try the suit. The learned judge found in the affirmative on this issue.
2. Jurisdiction of the Court versus the Charity Commissioner:
The court held that it had jurisdiction to entertain the present suit. The argument presented by the defendants was that the question of whether a particular property belongs to a Public Trust should be decided by the Charity Commissioner or his Assistant under the provisions of the Bombay Public Trusts Act, and hence the civil court's jurisdiction is barred by Section 80 of the Act. The court examined Sections 18, 19, 79, and 80 of the Act and concluded that the combined effect of Sections 79 and 80 is that the jurisdiction of the civil court is expressly ousted unless the plaintiffs can show that the jurisdiction of the civil court is saved by any other provision contained in the Act. The court found that the present suit could not properly be regarded as falling within the purview of Section 50 of the Act, as the property in question must already be shown to belong to a public trust, which was not the case here.
3. Cause of Action Against the Defendants:
The court found that the plaint disclosed a cause of action against the defendants. The learned judge found in the affirmative on this issue.
4. Maintainability of the Suit Without Leave of the Court Under Order 2, Rule 4 of the CPC:
The court held that the suit was maintainable. The learned judge found in the affirmative on this issue. However, the court later addressed a technical objection regarding the joinder of causes of action without the leave of the court as required under Order 2, Rule 4 of the CPC. The court granted the necessary leave at this stage to overcome this objection.
5. Maintainability of the Suit as Framed:
The court held that the suit as framed was maintainable. The learned judge found in the affirmative on this issue.
6. Validity and Service of Notices Under Section 80 of the CPC:
The court found that the plaintiffs had given valid and proper notices under Section 80 of the CPC, and proper notices had been served on defendants 10 and 11. The learned judge found in the affirmative on this issue.
7. Entitlement of Plaintiffs to Maintain the Suit:
The court held that the plaintiffs were entitled to maintain the suit. The learned judge found in the affirmative on this issue.
8. Allegation of Multifariousness in the Suit:
The court found that the suit was not bad for multifariousness. The learned judge found in the negative on this issue.
Additional Points:
Jurisdiction and Section 50 of the Bombay Public Trusts Act:
The court examined whether the present suit could be regarded as falling within the purview of Section 50 of the Bombay Public Trusts Act, 1950. The court concluded that the present suit could not be considered as such because the property in question was not yet declared to belong to a public trust. The court emphasized that the mandatory provisions of Section 79 require that the question of whether a particular property belongs to a public trust must be decided by the Charity Commissioner or his Assistants, and such a decision is final and conclusive under Section 80.
Stay of Proceedings and Direction to Approach Charity Authorities:
The court decided that it would be unfair to dismiss the suit and drive the plaintiffs to a separate proceeding under Sections 18, 19, and 22 of the Bombay Public Trusts Act after such a long time. Instead, the court directed that the proceedings of the suit shall be stayed, and the plaintiffs should approach the charity authorities to obtain a declaration under Section 22-A that the properties in suit belong to the Trust made by the late Bhagoji Keer. The court emphasized that the bar under Section 31(1) of the Act is to the suit being heard and decided, not to the suit being instituted.
Final Order:
The civil revision application was partly allowed, and the suit was returned to the trial court for further proceedings and disposal according to law in light of the judgment. The costs of the civil revision application were to abide and follow the final result of the suit.
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1971 (1) TMI 128
The Supreme Court upheld the validity of a will dated November 13, 1937, executed by Jaimal, directing his estate to devolve on his widow Nihali during her life and then on his collaterals. Nihali's claim to the properties was based on this will. The appellant, daughter of Jaimal's predeceased son, claimed the properties under a separate will of Nihali. The court ruled in favor of the respondents, holding that Nihali acquired the properties through the 1937 will and that her life estate could not become absolute under the Hindu Succession Act. The appeal was dismissed with no order as to costs.
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1971 (1) TMI 127
Issues Involved:
1. Whether the appellants are protected against eviction by reason of their contention that Ex. P-6 created a tenancy.
2. Whether the respondents were entitled to possession of the properties by reason of their contention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period.
Detailed Analysis:
Issue 1: Whether the appellants are protected against eviction by reason of their contention that Ex. P-6 created a tenancy.
The appellants argued that Ex. P-6 created a tenancy, which would protect them against eviction. They relied on the Malabar Tenancy Act, 1929, and the Kerala Land Reforms Act, 1964, particularly Section 132(1)(a) and Section 2(22) which defines "kanam." The appellants contended that the payment of land revenue stipulated in Ex. B-6 amounted to a payment of rent or michavaram, thus creating a tenancy.
The court examined various precedents, including the Kerala High Court's decision in Parameswaran Embranthiri v. Narasimba Nambudiri [1962] K.L.T. 404 and the Madras High Court's decision in Sankunni Varriar and Ors. v. Neelakandhan Nambudripad Ors. I.L.R. [1944] Mad. 254. These cases discussed whether the payment of land revenue could be considered as rent. The court noted that in Sankunni's case, the payment of land revenue was part of the michavaram, but this reasoning did not apply to Parameswaran's case, where there was no fixation of rent or stipulation for payment of michavaram.
The court also referenced its own decision in Cherumanalil Lakshmi and Ors. v. Mulivil Kunnjnamkandy Naravani and Ors. [1967]1SCR314, which emphasized that the terms of the transaction determine whether it is a kanam-kuzhikanam or a usufructuary mortgage. The court concluded that the mere description of the deed as kanam-kuzhikanam is not decisive; the terms and provisions of the deed must be considered.
Issue 2: Whether the respondents were entitled to possession of the properties by reason of their contention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period.
The respondents contended that Ex. B-6 was a mortgage transaction, entitling them to redeem the mortgage upon the expiry of the stipulated period. The court analyzed the terms of Ex. B-6, noting that it did not provide for renewal or payment of customary dues, and the payment of land revenue was not stipulated as rent or michavaram.
The court examined the proportion between the amount advanced and the value of the property, which is a significant factor in determining whether a transaction is a mortgage or a lease. In the present case, the amount advanced bore a substantial proportion to the value of the property, indicating a mortgage rather than a tenancy. The court also noted the absence of any provision for annual purapad to the jenmi and the paltry recurring annual liability for land revenue.
The court considered the conduct of the parties and the surrounding circumstances, including the partition agreement (Ex. A-3), which treated other kanam transactions differently from Ex. B-6. This indicated that the parties did not consider Ex. B-6 as creating a tenancy.
The court identified several features supporting the conclusion that the transaction was a mortgage:
1. No provision for renewal.
2. No provision for payment of customary dues.
3. Enjoyment of the property was in lieu of interest on the advance after payment of land tax to the State.
4. Payment of land tax was not a deduction from rent or perquisites.
5. Provision for surrendering the property with a registered release upon receipt of the consideration of kanam and the balance amount.
6. Return of counter-pattam deeds and prior deeds upon repayment.
7. Liability to pay interest on the advance, with possession and enjoyment of profits in lieu of interest.
Based on these factors, the court concluded that the transaction was a mortgage, not a lease, and the respondents were entitled to redeem the mortgage and take possession of the properties.
Conclusion:
The court affirmed the High Court's judgment, concluding that the transaction under Ex. B-6 was a mortgage and not a tenancy. The appeal was dismissed with costs.
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1971 (1) TMI 126
Issues:
1. Whether the Magistrate misdirected himself in directing the parties to adduce evidence in a case involving contravention of the Foreign Exchange Regulation Act.
2. Whether the Magistrate has the authority to inquire into the ownership of seized property in cases not triable by him or cognizable by the police.
3. Whether the Magistrate should disburse seized money to the accused or hand it over to the Enforcement Officer for further investigation under the provisions of the Act.
4. Whether the confession made by the accused to the Enforcement Officer is admissible and should be considered by the Magistrate.
Analysis:
1. The criminal revision involved a case where the 2nd respondent was found in possession of a significant amount of money suspected to be obtained in violation of the Foreign Exchange Regulation Act. The Enforcement Officer filed a petition seeking custody of the money for investigation. The Magistrate directed the parties to adduce evidence, which was deemed a misdirection as the offense fell under the jurisdiction of the Enforcement Directorate, not the Magistrate. The Act provides for a full inquiry by the Enforcement authorities, and the Magistrate's role is limited to procedural matters, not substantive investigation.
2. The Magistrate's direction for the parties to adduce evidence regarding the ownership of the seized money was deemed inappropriate. The Enforcement Officer sought custody of the money for investigation purposes, not to determine ownership. The Magistrate's role in such cases is procedural, and the ownership inquiry falls under the purview of the Enforcement authorities. The Magistrate's misinterpretation of Section 523 of the Criminal Procedure Code was highlighted, emphasizing that the property should be delivered to the party entitled to its possession, not necessarily its owner.
3. The court addressed the issue of whether the Magistrate should disburse the seized money to the accused or hand it over to the Enforcement Officer for further investigation. It was argued that allowing the accused to retain the money would be futile as the Enforcement Officer could immediately arrest the accused and seize the money. Citing previous judgments, the court emphasized the impracticality of releasing the accused with the money only to be re-arrested by the Enforcement Officer, advocating for direct custody transfer to the Enforcement Officer for a seamless investigation process.
4. The admissibility of a confession made by the accused to the Enforcement Officer was also discussed. The accused had initially confessed but later retracted, alleging physical torture. The court concluded that the admissibility of the confession should be determined by the officer conducting the inquiry under the Act, not the Magistrate. The court set aside the Magistrate's order and directed the delivery of the money to the Enforcement Officer for further proceedings, emphasizing the procedural limitations of the Magistrate in cases falling under the jurisdiction of specialized enforcement authorities.
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1971 (1) TMI 125
The judgment interprets section 30(b) of the Limitation Act, 1963 in a case where the application for delivery of possession was challenged on the basis of the new Act reducing the time limit. The court held that the application was filed within the extended period of 90 days after the commencement of the new Act, making it timely. The second appeal was dismissed with no order as to costs.
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1971 (1) TMI 124
Issues Involved:
1. Allegations of corrupt practice of bribery and undue influence.
2. Allegations of defamatory statements affecting personal character and conduct.
Detailed Analysis:
Issue 1: Allegations of Corrupt Practice of Bribery and Undue Influence
Raigar Colony (Paragraph 9 of the Amended Petition)
- Allegation: The appellant alleged that the respondent, his agents, and others promised the voters of Raigar Colony that they would get Pattas issued at a nominal rate of Rs. 1/- in exchange for votes.
- High Court Finding: The High Court held that it had not been proved that the respondent made such a bargain. The order dated 5 February 1967 was part of a long-standing policy dating back to 1959 and 1962, and not an election inducement.
- Supreme Court Analysis: The Supreme Court found that the evidence did not support the appellant's claims. The oral evidence was deemed unreliable, and the documentary evidence showed that the issuance of Pattas was in line with pre-existing government policies and not related to the election.
Tekri Road Construction (Paragraph 8 of the Amended Petition)
- Allegation: The appellant alleged that the respondent ordered the Public Works Department to construct a road at Tekri and promised the voters that he would arrange for the construction in exchange for votes.
- High Court Finding: The High Court found no evidence of a bargain for votes and held that the construction was part of a long-standing grievance and regular administrative activity.
- Supreme Court Analysis: The Supreme Court agreed with the High Court, noting that the road construction was planned well before the election and was part of regular administrative duties. The evidence did not support the claim of an election bargain.
Baluchistan Colony Nallah (Paragraph 8 of the Amended Petition)
- Allegation: The appellant alleged that the respondent promised to cover the Nallah in Baluchistan Colony in exchange for votes.
- High Court Finding: The High Court found that the project was initiated due to long-standing public health concerns and not as an election inducement.
- Supreme Court Analysis: The Supreme Court confirmed that the project was part of regular administrative duties and was not connected to the election. The evidence showed that the work was urgent and necessary, and the timing was coincidental.
Installation of Water-Taps (Paragraph 11 of the Amended Petition)
- Allegation: The appellant alleged that the respondent used his influence to get 50 public water-taps installed just before the election.
- High Court Finding: The High Court found no evidence that the respondent used his influence to get the water-taps installed for electoral gain.
- Supreme Court Analysis: The Supreme Court found no reason to disagree with the High Court's conclusion, noting that the documentary evidence did not support the appellant's allegations.
Issue 2: Allegations of Defamatory Statements Affecting Personal Character and Conduct (Ex. 8 Leaflet)
- Allegation: The appellant alleged that a leaflet (Ex. 8) falsely accused him of encroaching on government land, affecting his personal character and conduct.
- High Court Finding: The High Court found that the statement was false but held that it was not reasonably calculated to prejudice the appellant's election prospects and that the respondent did not consent to its printing or distribution.
- Supreme Court Analysis: The Supreme Court upheld the High Court's findings, noting that the evidence did not show that the respondent or his agent had knowledge or consented to the leaflet's printing or distribution.
Conclusion:
The Supreme Court dismissed the appeal, agreeing with the High Court that the allegations of corrupt practices and defamatory statements were not substantiated by the evidence. The Court emphasized that the appellant failed to prove that the respondent engaged in any corrupt practices as defined under the Representation of the People Act, 1951. The appeal was dismissed, and each party was ordered to bear their own costs.
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1971 (1) TMI 123
Issues Involved:
1. Preferential right under Section 11 of the Mines and Minerals (Regulation and Development) Act, 1957.
2. Non-speaking order by the Central Government.
3. Failure to provide reasons for rejection.
4. Consideration of relative merits of applicants.
5. Non-application of mind by the authority.
Issue-Wise Detailed Analysis:
1. Preferential Right under Section 11:
The appellant claimed a preferential right to a mining lease under Section 11 of the Mines and Minerals (Regulation and Development) Act, 1957, because it previously held a prospecting license for the area in question. The appellant argued that the State of Mysore did not properly consider its preferential right when granting the lease to another party, Suthankar. According to Section 11, a licensee has a preferential right for obtaining a mining lease over any other person, provided there is no breach of the terms and conditions of the prospecting license and the licensee is otherwise a fit person for being granted the lease.
2. Non-Speaking Order by the Central Government:
The appellant contended that the Central Government's order rejecting its revision application was not a speaking order. The order merely stated that "there is no valid ground for interfering with the decision of the Government of Mysore to reject your application for grant of mining lease." The Supreme Court emphasized the necessity of a speaking order, particularly in decisions under Rule 55 of the Mineral Concession Rules, as such decisions affect important rights of parties. The Court cited the precedent set in Bhagat Raja v. Union, where it was held that a speaking order is required to ensure that parties understand the reasons behind a decision.
3. Failure to Provide Reasons for Rejection:
The appellant argued that the Central Government's order failed to provide any reasons for the rejection of its revision application. The Supreme Court noted that the order did not address the appellant's claim to preferential rights under Section 11 or provide any rationale for the decision. The Court highlighted that the absence of reasons in the order deprived the appellant of the right to know why the decision was made against it.
4. Consideration of Relative Merits of Applicants:
The appellant asserted that the State Government did not consider the relative merits of the claims to the lease put forward by the appellant and Suthankar. The Supreme Court pointed out that the State Government should have evaluated the special knowledge, experience in prospecting operations, financial resources, and technical staff of both applicants. The Directorate of Mines of the State of Mysore preferred Suthankar's claim solely because he had invested money in developing the mines under a lease that was later canceled by the Central Government.
5. Non-Application of Mind by the Authority:
The appellant argued that the Central Government's order showed a complete non-application of mind. The Supreme Court observed that the order referred to a "decision of the Government of Mysore to reject" the appellant's application, whereas no such decision was made by the State Government. The application was deemed to be rejected due to the lapse of nine months without any order. The Court found a striking similarity between the impugned order and the one quashed in Bhagat Raja's case, indicating a perfunctory approach by the authorities.
Conclusion:
The Supreme Court allowed the appeal, quashed the Central Government's order of April 4, 1967, and directed the Central Government to decide the revision application afresh in light of the observations made. The Court emphasized the importance of providing reasons for decisions affecting valuable rights and ensuring a thorough and reasoned consideration of all relevant factors. No order as to costs was made.
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1971 (1) TMI 122
Issues Involved:
1. Legislative Competence
2. Distinction between Deposit and Borrowing
3. Validity of Notification and Directions
4. Excessive Delegation
5. Colourable Legislation
6. Control by Reserve Bank of India
Issue-wise Detailed Analysis:
1. Legislative Competence:
The petitioners argued that the impugned provisions of Chapter III-B of the Reserve Bank of India Act, 1934, intrench upon entries 26 and 30 of List II of the Seventh Schedule to the Constitution, which pertain to trade and commerce and money-lending, respectively. They contended that chit funds fall under these entries, making the legislation ultra vires. The court held that the impugned provisions relate to the control of currency and credit by the Reserve Bank, falling under entries 36 and 38 of List I, and not under entries 26 or 30 of List II. The court also noted that chit funds involve special contracts falling under entry 7 of List III, and the President's assent to the Act confirms this view.
2. Distinction between Deposit and Borrowing:
The petitioners contended that Sections 45J, 45K, and 45L of the Reserve Bank of India Act maintain a distinction between deposit and borrowing, which is a well-recognized distinction. They argued that the notification defining "deposit" is ultra vires. The court held that there is a distinction between money-lending and money borrowing, and the impugned provisions controlling money borrowing in the state of deposits from third parties and lending the same are valid.
3. Validity of Notification and Directions:
The petitioners challenged the validity of the notification issued by the Reserve Bank under Sections 45J to 45L, arguing that it was ultra vires and unreasonable. The court found that the notification and the directions issued therein are reasonable, valid, and necessary to safeguard the interests of the investing public. The court upheld the provisions of the notification, including the definition of "deposit," the restrictions on acceptance of deposits, and the particulars to be furnished in advertisements soliciting deposits.
4. Excessive Delegation:
The petitioners argued that Section 45Q of the Reserve Bank of India Act involves excessive delegation. The court held that Parliament is entitled to make a law abrogating or replacing by implication the provisions of any pre-existing law, and no exception can be taken to such legislation on the ground of excessive delegation.
5. Colourable Legislation:
The petitioners contended that the impugned provisions are colourable, as they purport to regulate an activity of the foreman but, in effect, legislate upon a subject reserved for the State. The court rejected this contention, holding that the impugned legislation falls under entries 36 and 38 of List I and is not colourable.
6. Control by Reserve Bank of India:
The court noted that the Reserve Bank of India has comprehensive powers to regulate and control the receipt of public deposits by banking institutions. The impugned provisions aim to extend this control to non-banking institutions, including chit funds, to protect depositors and ensure effective credit control. The court upheld the validity of the directions issued by the Reserve Bank, finding them necessary and reasonable to safeguard the interests of the investing public.
Conclusion:
The court dismissed the writ petitions, holding that the impugned provisions of Chapter III-B of the Reserve Bank of India Act, 1934, and the notification dated October 29, 1966, issued by the Reserve Bank of India, are valid. The petitioners' contentions were found to be without substance, and the court awarded costs to the respondents.
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1971 (1) TMI 121
Issues:
1. Conviction of accused No. 1 under Sections 18 and 27 of the Drugs Act
2. Interpretation of Section 34 of the Drugs and Cosmetics Act regarding liability of company officers
Analysis:
1. The judgment addresses the conviction of accused No. 1 under Sections 18 and 27 of the Drugs Act. The court notes that the offense under Section 18, related to the quality of drugs, is serious due to its potential harm to public health. The accused failed to renew the license in time but later obtained it. The court observes that the magistrate did not specify special reasons for imposing a sentence below the minimum, as required by Section 27 of the Act. Despite the negligence of accused No. 1 in supervising the laboratory, the court upholds the conviction but questions the imposition of one day's imprisonment, stating that a director's punishment under Section 34(2) should align with the company's liability under Section 27, which does not include imprisonment.
2. The judgment delves into the interpretation of Section 34 of the Drugs and Cosmetics Act concerning the liability of company officers. Section 34(1) holds the company accountable for offenses, with punishment typically being a fine, not imprisonment. Section 34(2) extends liability to directors or officers if the offense was committed with their consent or neglect. The court emphasizes that the punishment for such individuals should mirror that of the company, i.e., fines, not imprisonment. In the case at hand, the magistrate sentenced accused No. 1 to imprisonment and fines, which the court deems an error in law due to the director's liability under Section 34(2), emphasizing that minimum imprisonment requirements do not apply to directors held responsible under this provision.
3. The judgment concludes by stating that the magistrate considered the circumstances of the offense, finding accused No. 1 negligent but not directly involved in manufacturing the substandard drugs. The court acknowledges the magistrate's discretion in sentencing, noting that unless the sentence is grossly inadequate, the court cannot interfere. Despite the negligence of accused No. 1, the court finds the sentence imposed by the magistrate reasonable, given the circumstances. Consequently, the court discharges the rule, indicating that there is no basis for intervention in the sentence imposed on accused No. 1.
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1971 (1) TMI 120
Issues Involved:
1. Violation of Fundamental Rights under Articles 14, 15, and 19(1) of the Constitution.
2. Arbitrary, discriminatory, and mala fide implementation of the Orissa Kendu Leaves (Control of Trade) Amendment Act, 1969.
3. Legitimacy of the appointment of agents and purchasers.
4. Validity of amendments to the Orissa Kendu Leaves (Control of Trade) Act, 1961 and the rules framed thereunder.
5. Discrimination in the acceptance of tenders.
Detailed Analysis:
1. Violation of Fundamental Rights under Articles 14, 15, and 19(1) of the Constitution:
The petitioners contended that Sections 3(2)(a), 8(1), Rule 5-B (6), (7), (8), (9), (16), Rule 6(3), and Rule 7(1) of the Orissa Kendu Leaves (Control of Trade) Act, 1961, as amended, violated their fundamental rights guaranteed under Articles 14, 15, and 19(1) of the Constitution. They argued that the revised policy was arbitrary, discriminatory, and mala fide, and sought a writ of mandamus to quash the appointment of respondents 2 to 108 as purchasers.
2. Arbitrary, discriminatory, and mala fide implementation of the Orissa Kendu Leaves (Control of Trade) Amendment Act, 1969:
The petitioners argued that the State of Orissa's actions in implementing the amended Act and rules were aimed at conferring benefits on a chosen few for political and selfish financial ends. They alleged that the amendments allowed the Government to appoint additional agents and purchasers arbitrarily, and that the scheme was a subterfuge to circumvent the Supreme Court's decision in Rasbihari Panda v. State of Orissa, which mandated that the State monopoly be administered for the benefit of the general public.
3. Legitimacy of the appointment of agents and purchasers:
The petitioners contended that agents should be independent contractors and not nominees of purchasers. They claimed that the provision for appointing additional agents under the proviso to Section 8 and Rule 7(1) was unreasonable and arbitrary. They also argued that the appointment of purchasers who were not the highest tenderers was arbitrary and mala fide, and that Rule 5-B(7), which allowed the Government to accept or reject tenders without assigning any reason, permitted discrimination and extraction of money for party funds.
4. Validity of amendments to the Orissa Kendu Leaves (Control of Trade) Act, 1961 and the rules framed thereunder:
The Supreme Court found no legitimate grievance against the amendments to the Act and the new rules. The Court held that the amendments were necessary for the Government to control the business in Kendu leaves effectively. The provisions for appointing additional agents and purchasers were not per se bad, and the exigency of business might require such appointments. The Court also noted that the agents had to purchase Kendu leaves from growers at prices fixed by the Government and deliver processed leaves as directed by the Forest Officers.
5. Discrimination in the acceptance of tenders:
The petitioners alleged that the Government ignored the highest bidders to accommodate favorites and that appointments were made to persons who had not submitted tenders or at lower prices. The Supreme Court, however, found that the Government had the right to enter into contracts with persons known to it and that it was not bound to accept the highest tender. The Court noted that in many cases, persons who made lower bids were asked to raise their bids to the highest offered before acceptance, ensuring no loss to the Government. The counter affidavit showed that the units were disposed of in a manner that did not suggest fraudulent preference.
Conclusion:
The Supreme Court dismissed the petitions, finding no evidence that the amendments to the Act or the rules were against the exercise of a monopoly in the business of Kendu leaves by the Government of Orissa. The Court also found no case of arbitrary or mala fide action by the State authorities. The petitions were dismissed with costs.
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1971 (1) TMI 119
Issues:
1. Abatement of appeal due to failure to bring heirs of deceased party on record within the prescribed time.
2. Interpretation of Order 41 Rule 4 CPC regarding joint decrees.
3. Applicability of previous judgments in similar cases.
4. Abatement of appeal in case of joint decree holders.
5. Competence of appellate court to vary or modify decrees.
6. Abatement of appeal due to failure to formally show an heir as a legal representative.
Analysis:
The judgment involves a case where the appeal was dismissed by the High Court due to the failure to bring the heirs of a deceased party on record within the prescribed time, resulting in the abatement of the appeal. The High Court's decision was based on the interpretation of Order 41 Rule 4 CPC, which allows the appellate court to reverse or vary a decree in favor of all plaintiffs or defendants if the decree proceeds on a ground common to all parties. However, the High Court's interpretation was challenged, stating that the power under Order 41 Rule 4 can be exercised even if all parties are not joined in the appeal, as long as the decree proceeds on a common ground.
Furthermore, the judgment discusses previous cases to distinguish the present case from those where the entire appeal abated due to the death of a joint decree holder. It highlights the importance of maintaining consistency in decrees and avoiding conflicting decisions between the same parties based on the same cause of action. The judgment also emphasizes the competence of the appellate court to pass appropriate decrees in appeals filed by one of several parties against whom a decree is made on common grounds.
Moreover, the judgment addresses the issue of abatement in cases where a party dies, and one of the legal representatives is already on the record in another capacity. It clarifies that formal application for showing an heir as a legal representative is not necessary if the party is already on the record in a different capacity. Failure to bring all heirs on record within the prescribed time does not lead to abatement of the proceeding.
In conclusion, the Supreme Court allowed the appeal and remanded the proceeding to the High Court for further consideration, emphasizing the importance of interpreting the rules correctly and ensuring all relevant parties are brought on record in a timely manner to avoid abatement of appeals.
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1971 (1) TMI 118
Issues Involved:
1. Validity of the selection process for admission to medical colleges.
2. Allegations of mala fide actions by the selection committee.
3. Compliance with the Supreme Court's previous judgment regarding the selection process.
4. Allocation of marks under different heads during the interview process.
5. Consideration of National Cadet Corps (NCC) activities in the selection process.
Detailed Analysis:
1. Validity of the Selection Process:
The petitioner, a high-achieving student, challenged the selection process for admission to medical colleges in Tamil Nadu. The Supreme Court had previously invalidated the selections but allowed the State to form a new selection committee to fill the unfilled seats. The petitioner was not selected in the subsequent process and challenged the validity of these selections again.
2. Allegations of Mala Fide Actions:
The petitioner alleged that the selection committee showed open hostility towards him during the interview, called additional candidates for the interview against the court's directive, and deliberately contravened the court's directions. The Court found no satisfactory evidence to establish these allegations, noting that the burden of proof for mala fide actions was on the petitioner, which he failed to meet.
3. Compliance with the Supreme Court's Previous Judgment:
The Supreme Court had directed the new selection committee to interview candidates based on five heads and allocate marks accordingly. The committee, however, distributed the 75 interview marks among the five heads at its discretion, which contravened the Court's earlier judgment that implied equal distribution of marks among the heads. The Court held that the selection committee's procedure was likely to have affected the interview results.
4. Allocation of Marks During the Interview Process:
The Court noted that the Government did not prescribe separate marks for the separate heads. The selection committee's discretion in allotting marks (10 marks for some heads and 25 for others) was found to be in violation of the Court's earlier judgment. The Court emphasized that in the absence of specific allocation by the Government, each head should carry equal marks as inferred from the previous judgment.
5. Consideration of NCC Activities:
The petitioner had an "A" certificate for NCC activities but was given only five marks out of ten by the selection committee. The Court found that the selection committee proceeded on a wrong premise by considering various grades within NCC activities, which was not applicable to the petitioner's situation. The Court accepted the petitioner's contention that due to the discontinuation of NCC in Tamil Nadu schools and colleges in 1968, obtaining higher certificates like "B" or "C" was not possible for the candidates appearing for the selection in 1970-71.
Conclusion:
The Supreme Court quashed the impugned selections due to the procedural irregularities and non-compliance with its previous judgment. Despite the hardship that might be caused to the 24 students already admitted, the Court directed the State of Tamil Nadu to appoint a fresh selection committee to conduct the selection process in accordance with the Court's directions. The State of Tamil Nadu was also directed to pay the costs of the petitioner.
Petition Allowed.
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1971 (1) TMI 117
Issues: Suit maintainability; Limitation period applicability
In this case, the State of Rajasthan appealed a suit brought by the District Board, Sikar, seeking to recover a sum of money from the respondent. The plaintiff claimed the right to levy and collect certain cesses and contributions from the respondent, who was the Thikanedar of Sikar. The respondent resisted the suit on grounds of maintainability and limitation. The trial court partially decreed the suit, allowing the claim for cess but not for contributions. The High Court dismissed the suit as time-barred under Article 62 of the Limitation Act, 1908, despite acknowledging the District Board's lack of standing to maintain the suit. The respondent had pleaded in his written statement that the District Board had no right to levy cess and contributions, which formed a specific legal plea. The trial court framed an issue based on this plea, focusing on the amount due from the respondent for cess and contributions. The Supreme Court analyzed the relevant provisions of the Jaipur District Boards Act, 1947, and concluded that the District Board had no authority to demand cess payments directly from the Thikanedar, as the Act mandated payment to the Government. Therefore, the Supreme Court held that the suit was not maintainable, dismissing the appeal with costs.
The main issue in this case was the maintainability of the suit brought by the District Board, Sikar, against the respondent. The plaintiff sought to recover cess and contributions from the Thikanedar, but the respondent challenged the suit on grounds of maintainability and limitation. The trial court and the High Court had differing opinions on the matter, with the High Court dismissing the suit based on limitation. However, the Supreme Court focused on the specific plea made by the respondent in the written statement regarding the District Board's lack of authority to collect cess and contributions directly. This specific legal plea formed the basis for the trial court's issue regarding the amount due from the respondent. The Supreme Court's analysis of the relevant provisions of the Jaipur District Boards Act, 1947, revealed that the District Board did not have the power to demand cess payments from the Thikanedar, as the Act required payment to the Government. Therefore, the Supreme Court ultimately held that the suit was not maintainable, leading to the dismissal of the appeal.
The second issue raised in this case was the applicability of the limitation period under Article 62 of the Limitation Act, 1908. The High Court had dismissed the suit as time-barred, while the Supreme Court focused on the maintainability issue. Since the Supreme Court found that the District Board lacked the authority to demand cess payments directly from the Thikanedar, it did not delve into the question of limitation. By emphasizing the specific legal plea made by the respondent regarding the District Board's lack of standing to collect cess and contributions, the Supreme Court concluded that the suit was not maintainable, thereby rendering the question of limitation moot. The Supreme Court's decision to dismiss the appeal was based on the lack of authority of the District Board to bring the suit, rather than the issue of limitation.
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1971 (1) TMI 116
Issues Involved:
1. Allegations of mala fide actions by the selection committee.
2. Non-compliance with the Supreme Court's previous judgment regarding interview procedures.
3. Allocation of marks under various heads during the interview process.
4. Specific irregularities in awarding marks for National Cadet Corps (NCC) activities.
Issue-wise Detailed Analysis:
1. Allegations of Mala Fide Actions by the Selection Committee:
The petitioner alleged that the selection committee exhibited open hostility towards him during the interview, called additional candidates for interview contrary to the Court's directions, and deliberately contravened the Court's orders. The Court found that the allegations of mala fide were not established by satisfactory evidence. The Court emphasized that the burden of proof for such serious charges lies on the petitioner, and mere absence of outside evidence cannot shift this burden.
2. Non-compliance with the Supreme Court's Previous Judgment Regarding Interview Procedures:
The Court had previously directed the selection committee to interview candidates under five specific heads and to exclude irrelevant matters. The petitioner contended that the selection committee did not adhere to these directions. The Court noted that the selection committee initially called additional candidates for interview but refrained from interviewing them after the petitioner approached the Court. The Court found the selection committee's explanation for this action unsatisfactory but did not conclude that there was an ulterior motive.
3. Allocation of Marks Under Various Heads During the Interview Process:
The Supreme Court had previously indicated that in the absence of specific allocation of marks for each head, each head should carry equal importance, i.e., 1/5th of the interview marks. However, the selection committee distributed the 75 interview marks among the five heads according to its own discretion, which was contrary to the Court's earlier judgment. The Court held that the selection committee's procedure of allocating different marks for different heads was likely to have affected the interview results and contravened the Court's earlier directions.
4. Specific Irregularities in Awarding Marks for National Cadet Corps (NCC) Activities:
The petitioner argued that he was entitled to full marks for his NCC "A" certificate but was awarded only five out of ten marks. The selection committee's basis for awarding marks under this head was questioned. The Court found that the selection committee had proceeded on a wrong premise by not considering the discontinuation of NCC activities in Tamil Nadu schools and colleges in 1968, which affected the availability of higher NCC certificates. The Court concluded that the selection committee's approach in awarding marks for NCC activities was flawed.
Conclusion:
The Supreme Court held that the selections made by the selection committee were vitiated due to non-compliance with its previous judgment and irregularities in the interview process. Despite the hardship that might be caused to the already admitted students, the Court quashed the impugned selections and directed the State of Tamil Nadu to appoint a fresh selection committee to make selections in accordance with the Court's order dated September 23, 1970. The State of Tamil Nadu was also directed to pay the costs of the petitioner in this writ petition.
Petition Allowed.
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1971 (1) TMI 115
Issues Involved:
1. Validity of the memorandum dated January 11, 1962.
2. Liability for payment of entertainment duty.
3. Method of collection of entertainment duty.
4. Reopening of assessments already made.
Issue-wise Detailed Analysis:
1. Validity of the memorandum dated January 11, 1962:
The appellants challenged the validity of the memorandum dated January 11, 1962, which directed that entertainment duty should be charged on the total amount payable by the person buying the ticket, including any sum charged separately by way of duty. The High Court rejected the petitions challenging this memorandum, and this appeal was preferred against that order.
2. Liability for payment of entertainment duty:
The primary issue was whether the liability for payment of entertainment duty was on the visitor or the proprietor. The court held that the statutory liability to pay the entertainment duty is imposed upon the proprietor and not on the visitor. The proprietor is permitted by the Act to collect entertainment duty on the net amount receivable by him, but he does not become an agent for the Government. The charge is by section 3 on payments received by the proprietor for admitting visitors to entertainment. The liability for payment of the duty is imposed upon the proprietor and not upon the visitors to the theatre.
3. Method of collection of entertainment duty:
The method of collection of entertainment duty was prescribed by the Act and the Rules framed thereunder. Under section 4(1), on the ticket for admission to any entertainment, an impressed, embossed, engraved, or adhesive stamp issued by the State Government of the value specified in section 3 must be affixed. The proprietor pays the entertainment duty determined in the manner provided by clauses (a), (b), and (c) of sub-clause (2) of section 4. The court observed that the method of levy of entertainment duty from the proprietors involves some hardship, as the proprietor will never be able to collect the full entertainment duty from the visitor. A part of the duty payable by him will have to come out of the amount received by him as a net charge for the ticket. However, the court held that questions of hardship cannot justify departing from the provisions of sections 3 and 4 of the Act.
4. Reopening of assessments already made:
The court noted that between March 18, 1960, and January 11, 1962, the appellants collected and paid the duty which was actually received from the visitors to the theatre by stamps affixed on the tickets issued to them according to the notification issued by the Collector. The Government of Gujarat later advised that the method of collection notified by the Collector was not correct. However, the Act contains no provision for reopening assessments already made. When payments were made and accepted under section 4(2)(b), the tax may be deemed to be assessed and paid, and the State cannot thereafter reopen the concluded assessments and seek to levy tax or duty which has escaped.
Conclusion:
The appeals were dismissed except as to the amount claimed to be due for the period between March 18, 1960, and January 11, 1962. There was no order as to costs.
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1971 (1) TMI 114
Issues Involved:
1. Whether the respondent deposited the sum of Rs. 4,00,000 with the appellant.
2. Whether the suit was barred by time.
Detailed Analysis:
1. Whether the respondent deposited the sum of Rs. 4,00,000 with the appellant:
- The respondent claimed that on 30 September 1942, they deposited Rs. 4,00,000 with M/s India Supplies, where the appellants were partners, under an agreement that the amount would be payable on demand with interest at 7/9% per month.
- The evidence included entries in the respondent's books of account, such as the roznamcha (daily book), khata (ledger), and nakalbahi (journal), which indicated the deposit. The passbook entry (Ex-A-4) also showed the withdrawal of Rs. 4,00,000 on 30 September 1942.
- The appellant argued that the term 'deposit' used in the documents was not decisive and contended that it was an ordinary loan of Rs. 4,00,000, not a deposit payable on demand.
- The appellants provided six reasons for their contention, emphasizing that the transaction was a substitution of creditor-debtor relationships and not a deposit.
- The court referred to the decision in V. E. A. Annamalai Chettiar & Anr. v. S. V. V. S. Veerappa Chettiar, stating that the nature of the transaction should be judged from the intention of the parties and the circumstances of the case.
- The court concluded that the transaction was indeed a deposit based on the surrounding circumstances, the relationship between the parties, and the manner in which the transaction was treated.
2. Whether the suit was barred by time:
- The respondent contended that Article 60 of the Indian Limitation Act, 1908, was applicable, which states that the limitation period for money deposited under an agreement payable on demand starts from the date of demand. The suit was filed within three years from the demand.
- The appellant argued that it was a loan payable on demand under Article 59, and the limitation period started from the date of the loan, making the suit time-barred.
- The court noted that the respondent demanded the money by a letter dated 27 April 1953, and the appellant denied the claim by a reply dated 5/6 May 1953.
- The court referred to the views of the Calcutta, Bombay, and Madras High Courts, which held that there must be an unqualified demand for the whole sum before the limitation can start in the case of a demand for the return of the amount deposited.
- The court concluded that the suit was not barred by time as the demand was made within the limitation period.
Conclusion:
- The court affirmed the High Court's judgment, decreeing the suit in favor of the respondent for the sum of Rs. 4,11,367.92 with interest and costs.
- The appeal was dismissed with costs.
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1971 (1) TMI 113
Issues:
1. Validity of settlement of disputed land
2. Interpretation of Section 4(b) of the Bihar Land Reforms Act, 1950
3. Consideration of circumstantial evidence in determining intention of settlement
4. Absence of proof regarding actual rate of settlement
Analysis:
Issue 1: Validity of settlement of disputed land
The appellant's appeal stemmed from the dismissal of a petition challenging the annulment of a settlement of land made by Mustaque Ali Khan to Mohini Devi. The settlement was deemed invalid by the Land Reforms Deputy Collector and subsequently confirmed by the Collector of Darbhanga. The High Court upheld the decision based on circumstantial evidence, indicating an intention to cause loss to the State. However, the Supreme Court found that the authorities had not considered the absence of proof regarding the actual rate of settlement prevailing at the time, leading to a conclusion based on assumptions and conjectures. Consequently, the impugned orders were set aside, and the appellant was granted costs.
Issue 2: Interpretation of Section 4(b) of the Bihar Land Reforms Act, 1950
Section 4(b) of the Act empowers the Collector to annul any transfer made with the object of defeating provisions of the Act, causing loss to the State, or obtaining higher compensation. In this case, the authorities relied on the low settlement rate of the land, &8377; 3.00 per katha, as a basis for their decision. However, the Supreme Court criticized this approach, highlighting the lack of evidence regarding the prevailing rental rates at the time of settlement. The Court concluded that the decision was based on unfounded assumptions, leading to the quashing of the impugned orders.
Issue 3: Consideration of circumstantial evidence in determining intention of settlement
The High Court based its decision on circumstantial evidence, particularly the disparity between the settlement rate and the compensation amount. While the appellant argued that the revenue authorities lacked specific evidence to support their conclusion, the High Court justified its stance by stating that the circumstances and features of the settlement were valid considerations. The Supreme Court, however, disagreed, emphasizing the necessity of concrete proof and dismissing the decision as speculative and unsupported.
Issue 4: Absence of proof regarding actual rate of settlement
A crucial aspect of the Supreme Court's judgment was the absence of evidence regarding the actual prevailing rate of settlement at the time of the disputed land's transfer. The Court criticized the authorities and the High Court for relying on assumptions and conjectures, particularly concerning the perceived low rate of &8377; 3.00 per katha. Without concrete proof of the prevailing rates, the decision to annul the settlement was deemed unfounded, leading to the reversal of the impugned orders.
In conclusion, the Supreme Court allowed the appeal, set aside the annulment of the settlement, and granted costs to the appellant. The judgment highlighted the importance of concrete evidence and proper consideration of prevailing rates in such cases to avoid decisions based on speculation.
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1971 (1) TMI 112
Issues:
1. Whether the relationship between the parties was that of landlord and tenant or licensee.
2. Validity of the certificate granted by the High Court under Art. 133 (1 ) (c) of the Constitution.
3. Interpretation of the agreement dated November 3, 1958, as a lease or a licence.
4. Determining the intention of the parties based on the terms of the agreement and surrounding circumstances.
5. Consideration of exclusive possession as a significant factor in determining lease or licence.
Analysis:
1. The primary issue in this case was to determine the nature of the relationship between the parties, whether it was that of a landlord and tenant or a licensor and licensee. The plaintiff initiated an action for ejectment against the defendant, who claimed to be a tenant protected under the Bombay Rents Hotel & Lodging House Rates Contract Act 1947. The Trial Court and the High Court both concluded that the relationship was that of landlord and tenant based on the terms of the agreement and surrounding circumstances.
2. Another issue arose regarding the validity of the certificate granted by the High Court under Art. 133 (1 ) (c) of the Constitution. The Supreme Court noted that the certificate was defective as it lacked adequate reasons to support it. However, since the Court found no merit in the appeal, the certificate was not vacated.
3. The interpretation of the agreement dated November 3, 1958, was crucial in determining whether it constituted a lease or a licence. The terms of the agreement explicitly stated that the defendant had no right as a tenant or sub-tenant and that the owner could terminate the agreement without notice in case of breach. Despite the language used in the agreement, the Court analyzed the intention of the parties and surrounding circumstances to conclude that an interest was created in the loft in favor of the defendant.
4. In determining the intention of the parties, the Court emphasized that the description given by the parties in the agreement was not decisive. The crucial test was whether the instrument intended to create an interest in the property. The presence of exclusive possession, although not decisive, was considered significant in this case.
5. Both the Trial Court and the High Court considered the exclusive possession granted to the defendant as a key factor in determining the nature of the agreement. The High Court concluded that the agreement operated as a lease due to the intention to confer an interest in the loft based on the exclusive possession given to the defendant. The Supreme Court upheld this finding and dismissed the appeal with costs.
In conclusion, the Supreme Court affirmed the decision of the High Court that the agreement between the parties created a lease, and the defendant was considered a tenant rather than a licensee.
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1971 (1) TMI 111
Issues Involved:
1. Admissibility of secondary evidence of a written agreement under the Indian Stamp Act.
2. Specific performance of an agreement to lease.
3. Recovery of possession and damages for illegal occupation.
4. Future mesne profits.
Issue-wise Detailed Analysis:
1. Admissibility of Secondary Evidence:
The primary issue in these appeals was whether the reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of Sections 35 and 36 of the Indian Stamp Act. The appellant argued that secondary evidence should be admissible under the Indian Evidence Act if the original document, which was insufficiently stamped, was suppressed by the defendants. The court, however, found that the Indian Evidence Act does not deal with the admissibility of documents requiring stamps under the Indian Stamp Act. Section 35 of the Stamp Act clearly bars the admission of any instrument chargeable with duty unless it is duly stamped. Furthermore, secondary evidence of such an instrument cannot be admitted as it would be tantamount to acting upon the insufficiently stamped document, which is prohibited. The court upheld that secondary evidence of an unstamped or insufficiently stamped document cannot be admitted under Section 36 of the Stamp Act, which only applies to original instruments admitted without objection.
2. Specific Performance of an Agreement to Lease:
The appellant sought specific performance of an agreement to lease dated January 6, 1957. The trial court dismissed the suit for specific performance, holding that the plaintiffs had not proved the agreement's execution. However, the Subordinate Judge overturned this decision, accepting the oral evidence and decreeing specific performance. The High Court, in second appeal, held that the oral evidence regarding the agreement to lease was inadmissible due to the insufficient stamp on the original document. The Supreme Court upheld this finding, emphasizing that secondary evidence of an insufficiently stamped document cannot be admitted.
3. Recovery of Possession and Damages for Illegal Occupation:
Respondents 1 and 2 instituted suits for recovery of possession and damages for illegal occupation after the expiry of the old lease. The trial court decreed the suit for recovery of possession and awarded damages. The Subordinate Judge set aside these decrees, but the High Court reinstated them, holding that the oral evidence of the agreement to lease was inadmissible. The Supreme Court affirmed the High Court's decision, reiterating that secondary evidence of an insufficiently stamped document is inadmissible.
4. Future Mesne Profits:
The respondents filed an application for a direction to add a relief for future mesne profits from the date of the suit to the decree. The Supreme Court dismissed this application, noting that the respondents had stated in their plaint that they would file a separate suit for future mesne profits, and the courts below did not grant such relief based on this statement.
Conclusion:
The Supreme Court dismissed the appeal, holding that secondary evidence of an insufficiently stamped document is inadmissible under the Indian Stamp Act. The court also denied the respondents' application for future mesne profits, affirming the decisions of the lower courts.
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1971 (1) TMI 110
Whether a contract or a clause of it is incorporated in the award is a question of construction of the award
Whether 547 vehicles said' to have been sold to the company under sale:-note 197, dated August 2,/6, 1946?
Whether 600 vehicles which had been taken out of Moran Depot for operational purposes were part of the sale under sale-note 160?
Whether the amount of such rent was fixed by the umpire without any evidence?
Whether the amount of costs awarded by the umpire to the respondents was disproportionate?
Held that:- This is not a case where the umpire, in the words of Lord Dunedin, "tied himself down to a legal proposition" which on the face of the award was unsound. The award ,makes it clear in so many words that he took into account the entire evidence, including the documents relied on by counsel and then only came to the conclusion that it did not assist the company in its contention as to the scope of the sales.
Once it is found that he was competent to decide the dispute as to whether the said 547 vehicles were not the subject-matter of the sale and 291 of them were removed unauthorisedly, he must, to do justice between the parties in respect of disputes referred to him, order the company either to return them or to pay compensation for them. Since the first course was not possible after all these years, the second was the only and the obvious course. The dispute raised by the respondents that 291 vehicles were not included in the sale was: co-extensive with and connected with the dispute that the company was bound to return them if it was found that they were not covered by the sale. On this reasoning it is not possible to say that the umpire went beyond his jurisdiction either in rejecting the company's claim No. VI or in accepting the corresponding counter-claim No. VI of the respondents.
Having held that sale-note 160 covered only those vehicles which were actually lying in Moran Depot on July 10, 1946, it was not incumbent on the umpire to decide the number of operational vehicles outside the depot. Consequently, if he was satisfied that even though the company was not entitled to the said 600 vehicles claimed by it, yet the authorities had delivered a substantial number of them, and for any deficiency, had also delivered non-operational vehicles, there would be no purpose in going into the details of vehicles delivered to the company. Even though, as the judgment of the Trial Court discloses (para 223), there was evidence, both oral and documentary, that the company had collected a number of vehicles lying at places outside the Depot, and the vehicles so collected were recorded by the company, yet the company had withheld the production of those records. In view of these facts it is impossible to say that the umpire had acted without evidence, or that he behaved in the manner of a conciliator, or gave findings on conjectures and surmises.
Under the contracts of sale the company was, bound to pay to the Government ground rent and other charges which the Government in its turn was liable to pay. It is, therefore, not correct to say that the umpire could award only that amount which the Government had actually paid and that the umpire should, therefore, have taken an account from the Government. It was never the case of the company that the Government had claimed ground rent higher than the compensation it was liable to pay.
It appears from the award-that the umpire fixed the amount of costs after considering the statements of expenses incurred by the parties for the hearing before him tendered by the respective counsel for the parties. Considering the huge amounts claimed by the parties, the volume of evidence, both oral and documentary, adduced by them, the number of days occupied in recording that evidence and in arguing the case, we are not prepared to say that the discretion which the umpire exercised in the matter of costs was exercised in breach of any legal provision or unreasonably which can justify the Court's intervention. Appeal dismissed
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