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1987 (10) TMI 388
Issues:
1. Delay in promotion and improper treatment of a public officer by the State Government.
Detailed Analysis:
The appellant, appointed as Assistant Engineer in 1970, faced delays in promotion and recognition of seniority. Despite a High Court directive in 1983 to consider his promotion as Deputy Transport Commissioner based on seniority from 1970, the State Government procrastinated. Subsequently, junior officers were promoted over him, leading to the appellant seeking relief from the High Court due to alleged mala fides and improper treatment. The High Court initially refused to intervene, prompting the appellant to approach the Supreme Court.
Upon reviewing the case, the Supreme Court noted the importance of the bureaucracy in the administration of a democratic polity. Emphasizing that public officers are trustees obligated to provide appropriate service in exchange for benefits received, the Court highlighted the need for officers to be assigned work commensurate with their status. The Court expressed concern over the appellant not being given suitable work despite being paid from public funds, leading to the decision to intervene in the matter.
The Supreme Court directed the Government of Tamil Nadu to provide the appellant with a proper posting within one month and ensure he is assigned official duties in line with the rules and procedures of the position. The Court stressed the importance of the State Government demonstrating fair and unbiased conduct in the assignment of work to the appellant. While refraining from assessing the veracity of the appellant's allegations, the Court expressed confidence that the State Government would act responsibly as an employer and dispel any doubts regarding its conduct. No costs were awarded in the judgment.
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1987 (10) TMI 387
Issues Involved:
1. Validity of the detention order under the PASA Act.
2. Compliance with procedural requirements under Article 21 and Article 22 of the Constitution of India.
3. Impact of non-compliance with procedural requirements as laid down by the Supreme Court in A.K. Roy's case.
4. Whether the activities of the petitioner as a bootlegger affected public order.
Detailed Analysis:
1. Validity of the Detention Order under the PASA Act:
The petitioner challenged the detention order dated January 31, 1987, issued under Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985 (PASA Act). The detaining authority, the District Magistrate of Bhavnagar, was satisfied that the detention was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
2. Compliance with Procedural Requirements under Article 21 and Article 22 of the Constitution of India:
The petitioner contended that his family members were not informed in writing about his detention and the place where he was to be lodged, thus violating his personal liberty guaranteed under Article 21 of the Constitution. The respondents countered this by stating that the petitioner's uncle was informed in writing about the detention order. However, the uncle claimed he was not informed about the place of detention, which he only learned about through a letter from the petitioner ten days later.
3. Impact of Non-compliance with Procedural Requirements as Laid Down by the Supreme Court in A.K. Roy's Case:
The Supreme Court in A.K. Roy's case had mandated that family members of the detenu must be informed in writing about the detention order and the place of detention. The court noted that while the petitioner's uncle was informed in writing about the detention order, there was no written intimation regarding the place of detention. Despite this, the court held that oral intimation about the place of detention substantially complied with the Supreme Court's mandate, as the primary purpose of the information was to enable the family to take necessary actions, such as making representations or arranging for the detenu's needs.
4. Whether the Activities of the Petitioner as a Bootlegger Affected Public Order:
The court evaluated evidence showing that the petitioner's activities as a bootlegger were prejudicial to the maintenance of public order. Under Sub-section (4) of Section 3 of the PASA Act, activities that adversely affect public order include those causing harm, danger, alarm, or a feeling of insecurity among the public. The court found that the petitioner's activities created an atmosphere of terror, necessitating the deployment of armed police and SRP in the locality. This led to the conclusion that the detaining authority was rightly satisfied that the petitioner's activities affected public order.
Conclusion:
The court dismissed the petition, upholding the detention order dated January 31, 1987. The court found that the procedural requirements under Article 21, as interpreted by the Supreme Court, were substantially complied with, and the detaining authority's satisfaction regarding the petitioner's activities affecting public order was justified. The detention order did not suffer from any vice, and hence, the petition was dismissed, and the rule was discharged.
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1987 (10) TMI 386
Issues:
- Whether the proceedings could continue without the sanction under Section 197 of the CrPC.
- Balancing the need for a speedy trial with protecting public servants in the discharge of their duties.
- Determining the extent to which a public servant has exceeded their limits while performing official duties.
Detailed Analysis:
1. The petitioner sought leave to appeal against the High Court's judgment dismissing the application under Section 482 of the CrPC to stay proceedings in a criminal case. The case involved allegations of causing death and injuries to individuals during a police raid. The petitioner argued that without the sanction under Section 197 of the CrPC, proceedings could not continue for offenses under Section 196 of the CrPC, which require authorization for prosecution of public servants. The trial court considered the necessity of sanction and observed that determining if the petitioner exceeded official limits required a detailed examination of facts and circumstances.
2. The Supreme Court referred to a previous case where the need to balance the expeditious trial of criminal offenders with protecting public servants in the course of their duties was emphasized. The court highlighted the importance of safeguarding public officers from harassment in criminal proceedings while ensuring citizens' rights are protected. The judgment emphasized the necessity of evaluating whether a public servant acted within the scope of their duties or exceeded their authority, especially in cases involving serious consequences like injuries or death.
3. The court reiterated that while Section 196 prohibits taking cognizance without sanction, it is crucial to avoid staying criminal trials prematurely to prevent harm to evidence. In this case, the court upheld the trial court's decision not to stay proceedings, emphasizing the need for expeditious trial. However, the court directed that the question of sanction under Section 197 could be raised later in the trial after evidence had been presented. This approach aimed to balance the protection of public servants with ensuring justice for all parties involved.
4. Ultimately, the Supreme Court dismissed the petition but emphasized the importance of expeditious trial proceedings. The court's decision highlighted the complex task of determining the legality of a public servant's actions during the discharge of official duties and the need to carefully evaluate each case to strike a balance between protecting public servants and upholding citizens' rights. The judgment underscored the significance of upholding the law while ensuring fair treatment for both public servants and private citizens involved in legal proceedings.
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1987 (10) TMI 385
Issues:
- Relief sought under Section 633(2) of the Companies Act, 1956 for non-deposit of provident fund or employees' State insurance dues.
- Liability of a director for violations by the company under the Employees' Provident Funds Act and the Employees' State Insurance Act.
- Applicability of relief provisions to a nominated director not involved in day-to-day management.
- Prosecutions already initiated against the petitioner under the mentioned Acts.
- Interpretation of the role of a director as an occupier under the Acts.
Analysis:
1. The petitioner, a director of a public limited company, filed a petition under Section 633(2) of the Companies Act, seeking relief from liability for non-deposit of provident fund and insurance dues by the company. The petitioner argued that he should be excused as he was not directly involved in the company's management but was a nominated director due to his professional expertise as a chartered accountant.
2. The petitioner acknowledged the company's violations of the Employees' Provident Funds Act and the Employees' State Insurance Act but claimed reasons beyond the company's control, such as financial difficulties and appointment of a Finance Controller by the bank, for non-compliance. The petitioner contended that he should not be personally liable for the company's actions as he was not directly managing its affairs.
3. The court considered the prosecutions already initiated against the petitioner under the mentioned Acts and the contention that he, as a director, was also an occupier under the Acts. The court emphasized the strict compliance required under the Acts and cited precedents to support the view that directors cannot escape liability for violations committed by the company, especially regarding employee contributions.
4. The court dismissed the petition, noting that the prosecutions against the petitioner were already ongoing, and it was not necessary to consider the defenses raised in the petition at that stage. The court held that the petitioner, being a director and occupier, could present defenses in the criminal courts where the prosecutions were lodged, and there was no ground to grant relief in the present petition.
5. The court concluded that the petitioner could raise defenses in the ongoing prosecutions and that there was no indication of harassment in the legal actions taken against the petitioner. The court emphasized that the petitioner's status as a director and occupier meant he had to face the legal consequences of the company's violations, leading to the dismissal of the petition without costs.
This detailed analysis of the judgment highlights the key issues addressed by the court regarding the petitioner's liability as a director in the company's violations of the mentioned Acts and the applicability of relief provisions under the Companies Act.
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1987 (10) TMI 384
Issues:
Interpretation of a compromise decree regarding a gift deed made by a limited owner, effect of the Hindu Succession Act, 1956 on property rights, validity of a will executed post the enactment of the Hindu Succession Act, 1956.
Analysis:
The case involved a dispute over a gift deed made by Mst. Sheru @ Bhushehari, a limited owner of certain properties, in favor of Shri Dhari. The compromise decree passed in 1950 declared the gift ineffective and stated that the properties would be divided equally after Mst. Sheru's death, with Shri Dhari giving a share to Shri Hari Ram. However, with the enactment of the Hindu Succession Act, 1956, Mst. Sheru became the absolute owner of all her properties, including those subject to the gift deed.
The High Court held that the gift was ineffective and that Mst. Sheru continued to be a limited owner until her death in 1960. The Court reasoned that the compromise decree intended for the gift to be operative only until Mst. Sheru's lifetime, preserving her limited ownership rights. As per Section 14 of the Hindu Succession Act, 1956, a female Hindu could transfer property by Will, and since Mst. Sheru executed a will in 1959, she had the capacity to dispose of her properties.
The Supreme Court disagreed with the High Court's interpretation, emphasizing that the compromise decree clearly rendered the gift ineffective, maintaining Mst. Sheru's limited ownership until 1956. The Court also cited a previous judgment to distinguish cases where reversioners challenge alienations by widows before the Hindu Succession Act. In this case, the Court upheld the validity of the will executed by Mst. Sheru and recognized the appellants as legitimate legatees.
Consequently, the Supreme Court allowed the appeal, setting aside the High Court's judgment. The Court held that Mst. Sheru had the right to dispose of the property through her will, given her absolute ownership post the enactment of the Hindu Succession Act, 1956. Each party was directed to bear their own costs in the matter.
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1987 (10) TMI 383
Issues:
1. Whether the Tribunal's decision in a miscellaneous application amounted to a review of its own order, which is impermissible under the Income-tax Act, 1961.
Detailed Analysis:
Issue 1:
The case involved a question regarding the Tribunal's decision on the exemption claim under Section 54 of the Income-tax Act, 1961, for the sale of a house in Bombay. Initially, the Tribunal rejected the claim, stating that the property was owned by an artificial juridical person and lacked evidence on floor area occupancy. Subsequently, in a rectification application, the Tribunal altered its findings, stating that the property was owned by a Hindu undivided family and the capital gain was long-term. The issue was whether this alteration constituted a review or rectification under Section 254(2) of the Act.
The Court noted that the original findings were based on a misapprehension, as the Income-tax Officer and Commissioner had already determined the property ownership and nature of capital gain. The Tribunal's rectification aligned with these earlier findings, unchallenged by the Department or the assessee. As per Section 254(2), the Tribunal can rectify mistakes within four years of the order if brought to its notice. Therefore, the rectification in this case was permissible under the Act, not a review of the earlier order.
In conclusion, the Court held that the Tribunal's decision in the miscellaneous application did not amount to a review but was a valid rectification of a mistake, as allowed by Section 254(2) of the Income-tax Act, 1961. The parties were directed to bear their own costs in the case.
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1987 (10) TMI 382
Issues:
Assessment of penalty under Section 10 (b) of the Central Sales Tax Act, 1956 for import of machinery not covered by registration certificate.
Detailed Analysis:
Issue 1: Assessment of Penalty
The case involves a revision for the assessment year 1973-74 by an assessee, a Rice Mill business, challenging the Tribunal's order upholding a penalty of Rs. 12,000 imposed by the Sales Tax Officer under Section 10 (a) read with Section 10 (b) of the Central Sales Tax Act, 1956. The penalty was imposed for importing machinery worth Rs. 1,70,035 under Form 'C' in contravention of the registration certificate, which authorized import of 'mill stores.'
Issue 2: Mens Rea Requirement
The Assistant Commissioner (Judicial) held that there was no mens rea on the part of the assessee as the term 'mill stores' was understood to include the imported machinery. However, the Tribunal, without determining if the assessee had full knowledge that the machinery was not covered by the certificate, reduced the penalty to Rs. 12,000. The question arose whether mens rea is necessary for levying penalty under Section 10 (b) of the Act, 1956.
Issue 3: Legal Precedents
Citing legal precedents, the Court emphasized that for an offense under Section 10 (b), mens rea is essential. The Court referred to cases where a bona fide belief that goods are covered by the registration certificate does not attract penalty under Section 10 (b). The representation must be knowingly false to constitute an offense. The Court agreed with the authorities that no false representation was made by the assessee, thereby negating the need for a penalty.
Issue 4: Bona Fide Belief
The assessee consistently maintained a bona fide belief that the imported machinery fell under the term 'mill stores' authorized by the registration certificate. The Court accepted this explanation, supported by the fact that the assessee promptly amended the registration certificate when the discrepancy was discovered, indicating an absence of mens rea.
Conclusion
The Court held that the Tribunal erred in confirming the partial penalty imposed by the Sales Tax Officer. The revision was allowed, setting aside the Tribunal's order and restoring the cancellation of the entire penalty by the Assistant Commissioner (Judicial). No costs were awarded in the matter.
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1987 (10) TMI 381
Issues Involved:
1. Legality of the investigation conducted by an unauthorised officer.
2. Validity of the evidence presented by the prosecution.
3. Compliance with procedural requirements under the Narcotics Drugs and Psychotropic Substances Act, 1985.
4. Fairness of the trial and investigation.
Detailed Analysis:
1. Legality of the Investigation Conducted by an Unauthorised Officer:
The primary issue in the appeal was whether the investigation was conducted by an authorised officer under Section 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The appellant's counsel contended that Shri Amanulla Khan, a Head Constable, was not authorised to exercise powers under Section 42 of the Act, which requires officers to be of a rank superior to a peon, sepoy, or constable. The court noted that powers under Section 42 were conferred on police officers only by a notification dated October 16, 1986, which authorised Inspectors and Sub-Inspectors of police working as Station House Officers. Since the incident occurred on November 21, 1985, before this notification, neither Amanulla Khan nor the Station House Officer, Ram Chandra, had the jurisdiction to conduct the search, seizure, and arrest. The court concluded that the investigation was unauthorised, leading to a miscarriage of justice and vitiating the trial.
2. Validity of the Evidence Presented by the Prosecution:
The prosecution's case relied heavily on the testimony of PW 1 Amanulla Khan, who conducted the initial search and seizure, and PW 6 Ram Chandra, the Station House Officer. The court scrutinised the evidence and noted discrepancies and contradictions in the testimonies of the prosecution witnesses. PW 2 Jagdish Prasad and PW 3 Ram Swaroop, who were supposed to be independent witnesses, were declared hostile and did not corroborate the testimony of Amanulla Khan. The court found that the evidence presented was not convincing or positive enough to substantiate the prosecution's case.
3. Compliance with Procedural Requirements under the Act:
The court examined whether the procedural requirements under the Narcotics Drugs and Psychotropic Substances Act, 1985, were followed. Section 42 of the Act mandates that only authorised officers can conduct searches, seizures, and arrests. The court noted that the legislature intended to exclude lower-ranking officers, such as constables, from exercising these powers to ensure fairness and prevent misuse. Since the investigation was conducted by an unauthorised officer, the court held that the procedural requirements were not complied with, rendering the investigation and subsequent trial invalid.
4. Fairness of the Trial and Investigation:
The appellant's counsel argued that the investigation was not fair and proper, and that the accused was not given a fair trial. The court agreed, noting that the investigation was conducted by an officer who was not authorised under the law, leading to a violation of the accused's rights. The court emphasised that the accused has a right to expect a fair investigation and trial, especially in cases where the minimum punishment is severe. The court concluded that the trial was not conducted in a fair manner, further vitiating the proceedings.
Conclusion:
The court accepted the appeal, set aside the judgment dated February 17, 1987, passed by the Sessions Judge, Ajmer, and acquitted the accused of all charges. The court ordered the immediate release of the accused, who was in jail. The judgment highlighted the importance of following legal procedures and ensuring that investigations are conducted by authorised officers to uphold the principles of fairness and justice.
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1987 (10) TMI 380
The High Court of Allahabad decided that reversionary value should not be added to the value of a building determined by rent capitalization method. The Tribunal's decision was upheld, ruling in favor of the assessee. The case references were disposed of by a common order. The Tribunal was directed to pass orders in accordance with the judgment. No costs were awarded in this case.
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1987 (10) TMI 379
Issues Involved:
1. Jurisdiction of the Court.
2. Whether the Company is a "State" under Article 12 of the Indian Constitution.
3. Validity of Regulation 2.18 of the Staff Regulations.
4. Legality of the termination order dated April 21, 1980.
Detailed Analysis:
1. Jurisdiction of the Court:
The primary issue was whether the High Court had jurisdiction to entertain the petition. The respondents argued that no part of the cause of action arose within the jurisdiction of the Court since the termination order was passed in New Delhi. However, the petitioner contended that the cause of action arose in Ahmedabad as the termination order was served on him there. Citing the Supreme Court's decision in *State of Punjab v. Amar Singh Harika*, the Court held that the order of termination becomes effective only when it is communicated to the concerned employee. Since the order was served in Ahmedabad, part of the cause of action arose there, thus conferring jurisdiction on the Court.
2. Whether the Company is a "State" under Article 12:
The petitioner argued that the Company is a "State" under Article 12 of the Constitution, making it amenable to writ jurisdiction. The Court examined the Memorandum and Articles of Association of the Company, noting that 99% of its shares were held by the Central Government, State Governments, and Statutory Corporations controlled by the Central Government. The Court referred to the Supreme Court's decisions in *R. D. Shetty v. The International Airport Authority of India* and *Ajay Hasia v. Khalid Mujib*, which laid down tests for determining whether an entity is an instrumentality or agency of the Government. The Court concluded that the Company met these criteria due to the deep and pervasive control exercised by the Central Government, thus qualifying as a "State" under Article 12.
3. Validity of Regulation 2.18 of the Staff Regulations:
The petitioner challenged Regulation 2.18, which allowed termination of a confirmed employee's services with 90 days' notice or pay in lieu thereof, as arbitrary and discriminatory. The Court referred to the Supreme Court's decision in *Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly*, where a similar rule was struck down for being arbitrary and violative of Articles 14 and 16 of the Constitution. The Court found that Regulation 2.18 conferred absolute, arbitrary, and unguided power on the Company, violating the principles of natural justice. Consequently, the Court held Regulation 2.18 to be illegal, ultra vires, and void.
4. Legality of the Termination Order:
Given that Regulation 2.18 was declared invalid, the termination order dated April 21, 1980, which was based on this regulation, was also held to be illegal and void. The Court directed the Company to reinstate the petitioner with full back wages and continuity of service from the date of termination.
Conclusion:
The petition was allowed, and the Court declared Regulation 2.18 of the Staff Regulations illegal and ultra vires. The termination order dated April 21, 1980, was also declared void. The respondents were directed to reinstate the petitioner with full back wages and continuity of service. The ruling emphasized the necessity of adhering to principles of natural justice and the constitutional safeguards provided under Articles 14 and 16.
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1987 (10) TMI 378
The Supreme Court dismissed a public interest litigation filed by an advocate for using unsavoury language and making contemptuous allegations against the Court and other institutions. The Court found the petition to be careless, contradictory, and intended to denigrate the Court. The petitioner was directed to show cause for contempt and was barred from filing any future public interest litigations.
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1987 (10) TMI 377
Issues:
1. Jurisdiction of Judicial Magistrates in performing duties under the Customs Act.
2. Interpretation of Section 110 of the Customs Act, 1962.
3. Allocation of duties between Judicial Magistrates and Executive Magistrates/Sub-Divisional Magistrates.
Analysis:
1. The case involves a challenge against the order passed by the Sessions Judge, which upheld the rejection of an application by the Chief Judicial Magistrate. The dispute arose from the assignment of duties under the Customs Act to Judicial Magistrates by the Asst. Collector of Customs, Bhuj. The rejection was based on the argument that such duties should be assigned to Executive Magistrates or Sub-Divisional Magistrates instead of Judicial Magistrates.
2. The interpretation of Section 110 of the Customs Act, 1962 was central to the dispute. The recent amendment introduced Sections 110(1A), (1B), and (1C), specifying the procedure for disposal of seized goods and the role of Magistrates in certifying inventories, taking photographs, and drawing samples. The contention was raised regarding the obligation of Magistrates to allow applications made under Section 110(1B) promptly.
3. The judgment analyzed the nature of duties outlined in Section 110(1B) and the distinction between judicial, executive, and administrative functions of Magistrates. The absence of a specific definition of 'Magistrate' in the Customs Act led to a reference to Section 3(4) of the Criminal Procedure Code, distinguishing between functions requiring evidence evaluation and decision formulation (judicial) and those of an administrative or executive nature (executive). The judgment emphasized the burden on Judicial Magistrates due to pending criminal matters and the potential conflict if they were also assigned executive duties under the Customs Act.
4. Ultimately, the Court agreed with the decision of the Chief Judicial Magistrate and the Sessions Judge, ruling that the duties outlined in Section 110(1B) of the Customs Act are more suited for Executive Magistrates. The judgment highlighted the practical considerations of workload distribution and potential conflicts in case adjudication if Judicial Magistrates were burdened with additional executive tasks. Consequently, the application was dismissed, affirming the allocation of such duties to Executive Magistrates for efficient administration of justice under the Customs Act.
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1987 (10) TMI 376
Issues Involved:
1. Dispute over seniority between petitioners and respondent No. 5.
2. Legality of the notional date of appointment with retrospective effect.
3. Eligibility of respondent No. 5 for appointment as SP in CBI.
4. Seniority of the petitioner in Writ Petition No. 1021 of 1986 in the rank of SP in CBI.
Detailed Analysis:
1. Dispute over Seniority Between Petitioners and Respondent No. 5:
The petitioners, Madhavan and Sen, were directly recruited as DSPs in CBI in 1963, while respondent No. 5, O.P. Sharma, was a deputationist from Rajasthan State Police, confirmed as DSP in 1964. The dispute arose when the respondent No. 2 published a seniority list in 1981, showing Sharma senior to the petitioners based on a notional date of appointment as SP from 21-10-1971 (FN). The petitioners challenged this seniority list, claiming it was done mala fide without giving them an opportunity to be heard.
2. Legality of the Notional Date of Appointment with Retrospective Effect:
The petitioners argued that the notional date of appointment of Sharma with retrospective effect was done without reasonable justification and was mala fide. The respondents contended that Sharma was eligible for appointment to the post of SP in July 1970, but the meeting of the DPC was postponed arbitrarily. The court found that the postponement of the DPC was not arbitrary as it was done to allow non-deputationist DSPs to become eligible for promotion. Thus, the retrospective appointment of Sharma from 21-10-1971 (FN) was deemed unjustified.
3. Eligibility of Respondent No. 5 for Appointment as SP in CBI:
The petitioners contended that Sharma was not eligible for the post of SP as he did not complete eight years of service as DSP in CBI. The court clarified that "eight years' service in the grade" meant service in the grade of DSP, including service in the State Police. Sharma, having served as DSP in Rajasthan State Police and CBI for over eight years, was eligible for the post of SP. However, the court found that the retrospective appointment of Sharma was not justified as the postponement of the DPC was not arbitrary.
4. Seniority of the Petitioner in Writ Petition No. 1021 of 1986 in the Rank of SP in CBI:
The petitioner, Dwarka Nath, argued that his service as Deputy Commandant in BSF should be counted for seniority in CBI. The court held that the period from 14-6-1976, when he was promoted to Deputy Commandant in BSF, should be considered for seniority in CBI. The court found that the circulars issued by CBI regarding seniority were unworkable and not acted upon, and thus, Nath's seniority should be counted from 14-6-1976.
Judgments Delivered:
1. Writ Petitions Nos. 9847-48 of 1983:
- The court quashed the order appointing Sharma with retrospective effect from 21-10-1971 (FN) and the seniority list showing Sharma as senior to the petitioners.
- Directed the respondents to publish a fresh seniority list showing the petitioners as seniors to Sharma.
2. Writ Petition No. 1021 of 1986:
- The court quashed the seniority list showing the petitioner junior to respondents Nos. 5 to 7.
- Directed the respondents to allot proper seniority to the petitioner from 14-6-1976 and issue a fresh seniority list showing him senior to respondents Nos. 5 to 7.
The court also left the issue of the petitioner's date of birth in Writ Petition No. 1021 of 1986 open for future challenge. No order as to costs was made in any of the writ petitions.
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1987 (10) TMI 375
Issues Involved:
The issue involves the State Government's attempt to withdraw land acquisition proceedings initiated under the Land Acquisition Act, challenged by the landowner who insists on the acquisition to proceed.
Details of the Judgment:
Land Acquisition Proceedings:
The State Government initiated land acquisition proceedings under the Land Acquisition Act by notification in 1961, followed by a declaration in 1965. However, no further actions were taken, leading to encroachments on the land by trespassers. The landowner requested the Government to expedite the process, which was ignored. The landowner filed a petition in the High Court seeking a Writ of Mandamus to compel the Government to make the award and take possession of the land.
State Government's Withdrawal:
In 1981, the State Government decided to withdraw the land from acquisition under section 48 of the Act. The landowner challenged this decision as mala fide, alleging it was an attempt to defeat the relief sought in the writ petition. The High Court ruled in favor of the landowner, prompting the State Government to appeal.
Court's Decision:
The Supreme Court held that until possession is taken by the Government, the landowner retains rights over the land. Section 48 allows the State Government to withdraw from acquisition before possession, without causing irreparable harm to the landowner. The Court rejected the argument that withdrawal must be backed by reasons, stating the Government cannot be compelled to acquire land if the intended purpose cannot be achieved, especially in cases of encroachments.
Compensation and Land Ownership:
The Court clarified that the State is not obligated to take over land if the owner needs to protect it until possession. The State's decision to withdraw was deemed in the public interest and not mala fide. The Court referenced a similar case where the State was allowed to release lands from acquisition.
Conclusion:
The Supreme Court upheld the State Government's decision to withdraw the land from acquisition, setting aside the High Court's orders. The Court did not award costs, leaving the landowner to pursue any claims for compensation under section 48. The Court did not address a proposal for land exchange, leaving it to the landowner to pursue with the Government if desired.
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1987 (10) TMI 374
Issues Involved:
1. Compliance with procedural safeguards under Section 130 of the Indian Army Act, 1950.
2. Alleged bias of the commanding officer in the Court-Martial proceedings.
3. Applicability of "active service" status during imprisonment.
4. Interpretation of disobedience under Section 41 of the Indian Army Act.
5. Proportionality of the punishment imposed by the Summary Court-Martial.
Issue-wise Detailed Analysis:
1. Compliance with Procedural Safeguards under Section 130 of the Indian Army Act, 1950:
The appellant challenged the Summary Court-Martial proceedings on the grounds of non-compliance with Section 130 of the Indian Army Act, which mandates that the accused be given an opportunity to object to the members of the Court-Martial. The judgment highlighted that the records of the proceedings did not indicate that the appellant was asked if he objected to any officer sitting on the Court-Martial. This omission was deemed a basic infirmity that compromised the fairness of the trial. The court emphasized that procedural safeguards in the Act are essential given the extensive powers of the Court-Martial and the severe consequences for those subject to its jurisdiction. The non-compliance with Section 130 was considered a jurisdictional defect that invalidated the proceedings.
2. Alleged Bias of the Commanding Officer in the Court-Martial Proceedings:
The appellant argued that the commanding officer, Respondent 4, exhibited bias during the Court-Martial. The court examined whether a reasonable person, possessing relevant information, would perceive a likelihood of bias. The judgment cited established legal principles, noting that the essence of a fair trial requires impartiality and the absence of bias. The court concluded that the participation of Respondent 4, given the antecedent events, rendered the proceedings coram non-judice, meaning they were conducted without proper jurisdiction due to the likelihood of bias.
3. Applicability of "Active Service" Status During Imprisonment:
The appellant contended that while serving a sentence of imprisonment, he was not in "active service," thereby questioning the applicability of the charge of disobeying a lawful command. The court clarified that being under a sentence did not exclude the appellant from being a "person subject to this Act." The distinction lies in the lesser punishment for offences committed when not in active service, but the status of being subject to the Act remains unaffected.
4. Interpretation of Disobedience under Section 41 of the Indian Army Act:
The appellant's refusal to eat food was charged as disobedience under Section 41 of the Act. The court acknowledged the high discipline required in the Armed Forces, where even seemingly minor acts could signify defiance. However, the court did not find it necessary to decide on this contention given the findings on other issues, particularly the procedural and bias-related infirmities.
5. Proportionality of the Punishment Imposed by the Summary Court-Martial:
The court addressed the issue of whether the punishment was disproportionate to the offence. It emphasized that judicial review focuses on the decision-making process rather than the decision itself. The punishment must align with the offence and offender, avoiding vindictiveness or undue harshness. The court found the punishment so disproportionate that it justified interference, citing principles of proportionality and rationality in judicial review. The sentence was deemed an outrageous defiance of logic, warranting correction.
Conclusion:
The appeal was allowed, setting aside the High Court's order and quashing the Summary Court-Martial proceedings and consequent orders. The appellant was entitled to reinstatement with all monetary and service benefits, underscoring the importance of procedural fairness and proportionality in military justice.
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1987 (10) TMI 373
Issues:
1. Whether gratuity payable to a deceased employee is liable to be attached against a decree for recovery of money passed against the heirs of the employee.
2. Whether the order holding that the gratuity was not attachable during the pendency of the suit operates as res judicata.
Analysis:
Issue 1:
The case involved a dispute regarding the attachment of gratuity payable to a deceased employee in satisfaction of a money decree against the heirs of the employee. The decree-holder sought attachment of the deceased employee's dues, including gratuity, from the employer. The lower courts had dismissed the application seeking refund of the attached gratuity. The key legal question was whether the gratuity, which was payable to the deceased employee, could be attached in execution of a decree. Section 60(g) of the Code of Civil Procedure provides protection to certain types of gratuities from attachment. The court analyzed whether the nature of the gratuity changed upon the death of the employee and if the employer was legally bound to pay it. The court distinguished a previous case where the employer was not legally bound to pay gratuity, making it non-attachable. In this case, the court held that the gratuity, being payable to the legal heirs of the deceased employee, was attachable as the employer was obligated to pay it to the heirs. The court relied on precedent to support its decision, concluding that the attached gratuity was not liable to be refunded to the appellants.
Issue 2:
The appellants argued that the earlier order stating that the gratuity was not attachable should operate as res judicata. The court examined the principle of res judicata in the context of a mixed question of law and fact. It held that a decision on a question of law, particularly regarding the jurisdiction of the court or the legality of an order, does not bind the parties under res judicata. In this case, the court determined that the question of law regarding the attachability of gratuity after the death of the employee was a jurisdictional issue, and any erroneous interpretation of the law did not amount to res judicata. Therefore, the court dismissed the appeal, emphasizing that a legal question of this nature did not establish grounds for res judicata and left the parties to bear their own costs.
In conclusion, the court ruled that the gratuity payable to the deceased employee was attachable, and the earlier order on attachability did not operate as res judicata due to the question being one of law and jurisdiction.
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1987 (10) TMI 372
Issues Involved:
1. When does a final decree for partition become enforceable under Article 136 of the Limitation Act, 1963?
2. Applicability of Rule 6A of Order 20 of the Civil Procedure Code (CPC) to partition decrees.
3. Handling conflicting Supreme Court decisions by High Courts.
Summary:
1. Enforceability of Final Decree for Partition:
The primary issue is determining when a final decree for partition becomes enforceable under Article 136 of the Limitation Act, 1963. Article 136 prescribes a 12-year limitation period for the execution of any decree, starting from when the decree becomes enforceable. The court held that a decree for partition, being an "instrument of partition" under Section 2(15) of the Stamp Act, 1899, is chargeable with stamp duty. Under Section 35 of the Stamp Act, such a decree cannot be admitted in evidence or acted upon unless duly stamped. Therefore, it does not become enforceable until engrossed on requisite stamp papers. The period of limitation for execution begins only when the decree is so drawn up.
2. Applicability of Rule 6A of Order 20 of CPC:
The court examined the argument that Rule 6A of Order 20 of the CPC allows a decree-holder to apply for execution based on the last paragraph of the judgment, even before the decree is formally drawn up. However, the court clarified that Rule 6A applies to cases where a decree could be drawn up immediately after the judgment but has not been due to court delay. In the case of partition decrees, which require requisite stamps to be furnished, Rule 6A does not apply. The decree for partition cannot come into existence in law until drawn up on stamp papers, and thus, the period of limitation does not begin until then.
3. Handling Conflicting Supreme Court Decisions:
The court addressed the issue of conflicting Supreme Court decisions. It noted that when faced with such conflicts, the High Court should first try to reconcile the decisions. If reconciliation is not possible, the High Court may follow the decision it finds more reasonable. The court referred to the Supreme Court's decisions in Udayan Chinubhai v. R.C. Bali and Yeshwant Deorao v. Walchand Ramchand, noting that the former provided more elaborate observations relevant to partition decrees. The court decided to follow the decision in Udayan Chinubhai, holding that a decree for partition does not become enforceable until engrossed on requisite stamp papers.
Conclusion:
The court concluded that the decree for partition in this case was not barred by time, as the period of limitation had not begun to run. The revision was allowed, the impugned order was set aside, and the executing court was directed to proceed with the execution in accordance with the law. No order as to costs was made, and the court appreciated the assistance rendered by the learned counsel for both parties.
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1987 (10) TMI 371
Issues:
1. Dispute over the turnover determination for the assessment year 1979-80 in a sales tax case.
2. Disagreement on the operational period and production capacity of a brick kiln leading to discrepancies in the turnover calculation.
3. Lack of proper reasoning and notice by the Sales Tax Tribunal in altering the findings of the Sales Tax Officer.
4. Interpretation of Section 18 of the U.P. Sales Tax Act regarding confirmation of assessment by the Tribunal without changes in proprietorship.
Analysis:
1. The revision petition challenged the Sales Tax Tribunal's order regarding the turnover determination for the assessment year 1979-80. The petitioner, engaged in the brick manufacturing business, contested the rejection of account books by the Sales Tax Officer, leading to the estimation of turnover by the Officer and subsequent affirmation by the first appellate court.
2. The Sales Tax Officer determined the operational period of the brick kiln from April 1, 1979, to May 29, 1979, based on a survey conducted in March 1979. Discrepancies arose regarding the number of rounds the kiln operated and its production capacity, with the Officer estimating 1 3/4 rounds and a production of 6,38,050 bricks. The Sales Tax Tribunal adjusted the capacity to 3 lacs of bricks and production to 6,00,000 bricks, citing two complete rounds of operation.
3. The petitioner raised concerns over the Tribunal's decision on the operational start date of the kiln and the number of rounds it operated. The Court acknowledged the factual nature of these determinations but criticized the lack of substantive discussion or notice by the Tribunal when altering the Officer's findings, emphasizing the need for proper justification and opportunity for the assessee to present their case.
4. Regarding the interpretation of Section 18 of the U.P. Sales Tax Act, the Court dismissed the argument challenging the confirmation of assessment by the Tribunal under this section, noting that the issue was not raised before the tax authorities or addressed in the Tribunal's order, precluding its consideration at the Court level.
5. Consequently, the Court partially allowed the revision petition, directing the Tribunal to reevaluate the turnover determination in line with the Court's observations and legal provisions. The parties were instructed to bear their own costs in light of the circumstances surrounding the case.
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1987 (10) TMI 370
Issues:
Challenge to rejection of account books and determination of estimated turnover.
Analysis:
The judgment involves a revision under Section 11 of the U. P. Sales Tax Act, 1948, filed by a brick manufacturing business against an order passed by the Sales-tax Tribunal. The dispute pertains to the assessment year 1978-79, where the account books of the assessee were rejected, and the turnover was determined based on estimates. The first appellate authority provided some relief in terms of turnover, but both the Revenue and the assessee appealed to the Sales-tax Appellate Tribunal, where both appeals were dismissed. The assessee then filed for revision.
The primary contention raised by the counsel for the assessee was that the account books were wrongly rejected, and the estimated turnover was excessive. Upon hearing both parties, the judge decided to set aside the order of the Sales-tax Appellate Tribunal for fresh consideration, thereby not delving into the validity of the rejection of account books.
The judgment further delves into the dispute regarding the firing period of the brick kiln, which was a crucial factor in determining the production of bricks. The first appellate authority had discarded the firing period shown by the assessee, citing lack of intimation about temporary closure. However, the judge highlighted that there was no legal obligation for the assessee to provide such intimation, as per relevant case laws cited.
Another significant issue was the capacity of the brick kiln, which was determined based on varying measurements recorded on different occasions. The judge noted discrepancies in the measurements and directed a fresh consideration by the Sales-tax Tribunal, emphasizing the importance of accurate assessment in the interest of justice.
Various other contested points, such as the time required for completing one full round and producing a specific quantity of bricks, were also raised but were left for the Sales-tax Tribunal to decide afresh. Ultimately, the judgment allowed the revision, set aside the Tribunal's order, and directed a fresh consideration of the appeal in accordance with the observations made.
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1987 (10) TMI 369
Issues Involved:
1. Whether the Railway Board was bound to give the concessional rate offered to the company under Ex. C5 dated November 5, 1966?
2. Whether the rate charged for the carriage of Naptha between Bajuva and Dadhevi is unreasonable?
3. Whether the Railways are showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Railways Act?
Summary:
Issue 1: Concessional Rate under Ex. C5
The Tribunal held that the Railway Board was not bound by the concessional rate offered in Ex. C5 because the letter explicitly stated that the rate was subject to review when the traffic actually began to move. The Tribunal found that the assurance in Ex. C5 was not the primary reason for setting up the factory at Kota and that the withdrawal of the concessional rate did not adversely affect the company. The Supreme Court agreed with this conclusion, noting that the representation in Ex. C5 was not clear and unqualified, and thus, no promissory estoppel could arise.
Issue 2: Reasonableness of the Rate Charged
The Tribunal found that the rate charged for the carriage of Naptha was not unreasonable. The onus to prove the unreasonableness of the rate rested on the company, which it failed to discharge. The Supreme Court upheld this finding, stating that even if the Railways earned surplus income, it did not make the rate per se unreasonable. The Railways, being a commercial undertaking, are not obligated to pass on extra earnings to customers. The Court also noted that Naptha, classified as a dangerous commodity, required special precautions and tank wagons, justifying the higher rate compared to crude oil.
Issue 3: Undue Preference or Advantage
The Tribunal held that there was no evidence to support the claim that the Railways were showing undue preference or advantage in contravention of Section 28 of the Railways Act. The Supreme Court agreed, citing the principle that a party must establish preference between itself and its competitors to claim undue preference. The Court found no reason to disagree with the Tribunal's conclusion that the Railways were not contravening Section 28.
Conclusion:
The Supreme Court dismissed the appeal, agreeing with the Tribunal's conclusions on all issues. The Court emphasized that the doctrine of promissory estoppel could not be invoked as the representation in Ex. C5 was not clear and unqualified. The rate charged for Naptha was found to be reasonable, and no undue preference was shown by the Railways. The appeal was dismissed with no order as to costs.
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