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1978 (11) TMI 168
Challenged conviction u/s 394 (1)(e)(i) r/w Section 471 of the Bombay Municipal Corporation Act - Interpretation of the term "catering establishment" - Expression "eating house" - Whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment" - HELD THAT:- It may be pointed out that so far as the Factories Act was concerned, the provisions therein as also the Rules made thereunder were meant for the protection of the workers and with a view to benefit them. So far as the provisions of the Bombay Municipal Corporation Act were concerned, they are enacted according to the Statement of Objects and Reasons of that Act for the purpose of seeing that certain trades are not carried out in a dangerous manner or are likely to create a nuisance or to endanger life. It, therefore, cannot be stated that the provisions of the two Acts overlap each other. Assuming, however, that the purpose of the two Acts was similar, even then there could be no reason why an obligation cast upon a party to obtain a licence under the provisions of one of such Acts should not be complied with. I, therefore, see no substance in this argument of Mr. Shrikrishna.
The learned Magistrate was justified in convicting Accused No. 2 under S. 394 (1) (e) (i) read with Section 471 of the Bombay Municipal Corporation Act and in sentencing Accused No. 2 to the minimum penalty thereunder. The Petition is, therefore, dismissed and the Rule discharged.
Petition dismissed.
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1978 (11) TMI 167
The High Court dismissed a petition for bail by Raj Kumar, who was charged with murder, as the police filed the charge sheet on the sixty-first day of his arrest, not within 60 days as required by law.
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1978 (11) TMI 166
Issues Involved:
1. Conviction under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 IPC.
2. Reliability of the testimony of P.W. 6.
3. Credibility and conduct of Panch witnesses (P.Ws. 1 and 2).
4. Admissibility of the accused's conduct when questioned by the police.
5. Requirement of corroboration for the testimony of a "trap witness."
Issue-wise Detailed Analysis:
1. Conviction under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 IPC:
The appellant was convicted by the Special Judge, Delhi, for an offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 IPC. The High Court confirmed the conviction and sentence, leading to the appellant's appeal by special leave to the Supreme Court. The prosecution's case involved the accused, an Overseer-Section Officer, demanding a bribe of Rs. 30/- from P.W. 6, an architect, for permitting corrections in building plans. A trap was set, and the accused was caught with the marked currency notes.
2. Reliability of the testimony of P.W. 6:
The defense argued that the conviction was based on the uncorroborated testimony of P.W. 6, who was described as a "trap witness." The Supreme Court held that a conviction could be based on the uncorroborated testimony of a trap witness if the court is satisfied that the witness is truthful. The Court found P.W. 6 to be a truthful witness who gave evidence in a straightforward manner and was unshaken during cross-examination. The Court rejected the defense's suggestion that P.W. 6 was aggrieved with the accused and had a motive to falsely implicate him.
3. Credibility and conduct of Panch witnesses (P.Ws. 1 and 2):
Both Panch witnesses did not fully support the prosecution's case and resiled from their earlier statements during the investigation. The Supreme Court noted that P.Ws. 1 and 2 were not truthful witnesses and had given evidence to accommodate the accused. Their evidence was contradicted by their earlier statements to the police. The Court clarified that the lower courts had not treated the statements made by P.Ws. 1 and 2 to the police as substantive evidence but had used them to confront the witnesses and reject their testimony.
4. Admissibility of the accused's conduct when questioned by the police:
The defense contended that the evidence relating to the accused's conduct when questioned by the police was inadmissible under Section 162 CrPC. The Supreme Court disagreed, distinguishing between the conduct of a person against whom an offense is alleged (admissible under Section 8 of the Evidence Act) and statements made to a police officer during an investigation (excluded by Section 162 CrPC). The Court cited previous judgments to support the admissibility of evidence relating to the conduct of the accused when confronted by the police.
5. Requirement of corroboration for the testimony of a "trap witness":
The defense argued that the testimony of a trap witness required corroboration. The Supreme Court referred to previous judgments, stating that corroboration might be sought in appropriate cases but was not invariably required. The Court found corroboration for P.W. 6's testimony in the report he gave to P.W. 9, the conduct of the accused when questioned by P.W. 9, and the circumstances of the accused being ready with the file and placing it under the table after receiving the bribe.
Conclusion:
The Supreme Court, after considering the entire evidence, was satisfied that the appellant was rightly convicted. The Court dismissed the appeal, finding no merit in the other minor points raised by the defense. The judgment upheld the conviction and sentence of the appellant under the relevant sections of the Prevention of Corruption Act and the IPC.
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1978 (11) TMI 165
The Supreme Court held that Section 10 of the Bonus Act is not ultra vires of Article 19(1)(g) and Article 301 of the Constitution. The Court found the restriction imposed by the Act on employers to pay minimum bonus even in loss years reasonable and in public interest under Articles 19(8) and 302. The Court upheld the High Court's decision and dismissed the appeal, ordering costs of Rs. 2,000 to be paid to respondent No. 2.
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1978 (11) TMI 164
Issues Involved:
1. Meaning of 'tenant' in Section 2(1) of the Delhi Rent Control Act, 1958, before and after the amendment of 1976.
2. Applicability of the Supreme Court decision in Damadilal v. Parashram to the old definition of 'tenant'.
3. Interpretation of clauses (ii) and (iii) of the new definition of 'tenant' in Section 2(1) of the Delhi Rent Control Act, 1958.
4. Distinction between residential and non-residential premises in the context of the amended definition of 'tenant'.
Issue-wise Detailed Analysis:
1. Meaning of 'Tenant' in Section 2(1) of the Delhi Rent Control Act, 1958, Before and After the Amendment of 1976:
The original definition of 'tenant' in Section 2(1) of the principal Act included any person by whom or on whose account or behalf the rent of any premises is payable, including a sub-tenant and any person continuing in possession after the termination of his tenancy, but excluded any person against whom an order or decree for eviction had been passed. The amendment in 1976 redefined 'tenant' to include sub-tenants, persons continuing in possession after the termination of their tenancy, and, in the event of their death, certain specified heirs living with them up to the date of their death.
2. Applicability of the Supreme Court Decision in Damadilal v. Parashram to the Old Definition of 'Tenant':
The decision in Anand Nivas Pvt. Ltd. v. Anandji Kalyanji Pedhi, followed in J. C. Chatterjee v. Sri Kishan Tandon, held that a person continuing in possession after the termination of his tenancy was a statutory tenant, and his legal representatives could not inherit the tenancy or the statutory protection. However, in Damadilal v. Parashram, the Supreme Court held that a person continuing in possession after the termination of his tenancy was a tenant of the same kind as a contractual tenant, and his legal representatives could inherit the tenancy and statutory protection. The court in the present case preferred the decision in Damadilal over Anand Nivas and J. C. Chatterjee, noting that the former was subsequent and considered the latter decisions.
3. Interpretation of Clauses (ii) and (iii) of the New Definition of 'Tenant' in Section 2(1) of the Delhi Rent Control Act, 1958:
The amended definition of 'tenant' in Section 2(1) includes any person continuing in possession after the termination of his tenancy and, in the event of his death, certain specified heirs living with him up to the date of his death. The court noted that the amendment was a compromise between the landlords' claims for immediate possession and the heirs' claims to inherit the statutory protection. The court held that the legal representatives had a limited right of inheritance as specified in the amended definition, which was retrospective and applied from the inception of the Delhi Rent Control Act, 1958.
4. Distinction Between Residential and Non-residential Premises in the Context of the Amended Definition of 'Tenant':
The court held that the limited right of inheritance granted by the amended definition of 'tenant' applied only to residential premises. This conclusion was based on the reasoning that the heirs could only be living with the tenant in residential premises at the time of his death. The court cited the Supreme Court decision in Ganpat Ladha v. Sashikant Vishnu Shinde, which construed similar words in the Bombay Rents, Hotel and Lodging House Rates Control Act to apply only to residential premises.
Separate Judgments Delivered:
H.L. Anand, J.:
Justice Anand concurred with the majority opinion but expressed concerns about the anomaly resulting from the conflicting Supreme Court decisions and the delay in further legislative action. He highlighted the hardship caused to legal representatives of tenants and suggested that the larger questions should be raised before the Division Bench or addressed through further legislative action.
M.L. Jain, J.:
Justice Jain agreed with the majority opinion, emphasizing that the legislative amendment of 1976 should prevail over the judicial declaration in Damadilal. He noted that the amendment limited the heritability of tenancy rights to certain specified heirs in certain circumstances and applied only to residential premises. He concluded that the court could not extend the scope of judicial review to repeal the law and that any hardship caused by the amendment could only be relieved by further legislative action.
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1978 (11) TMI 163
Issues:
1. Entitlement to benefits under the Andhra Pradesh Agriculturists Relief Act.
2. Determination of whether the Union Bank of India is a Corporation formed under a special Indian Law.
3. Claiming benefits under the Usurious Loans Act, 1918.
Analysis:
Issue 1: Entitlement to benefits under the Andhra Pradesh Agriculturists Relief Act
The defendants, who are agriculturists, argued that their debt should be scaled down under the Andhra Pradesh Agriculturists Relief Act. Both lower courts agreed that the defendants were entitled to the benefits of the Act and that the interest charged was usurious. The key consideration was whether the defendants fell under the exemptions provided in the Act, specifically related to debts due to certain entities like co-operative societies or corporations formed under special Indian laws.
Issue 2: Determination of whether the Union Bank of India is a Corporation formed under a special Indian Law
The main contention was whether the Union Bank of India, being a nationalized bank, was a Corporation formed under the Banking Companies Act, 1970. The judgment delved into the provisions of the Banking Companies Act to establish that the Union Bank of India was indeed a Corporation constituted under a special Indian Law, thus not falling under the purview of the Debt Relief Act.
Issue 3: Claiming benefits under the Usurious Loans Act, 1918
The defendants also sought relief under the Usurious Loans Act, 1918, which allows the court to reopen transactions if they are deemed substantially unfair, especially in cases of excessive interest. The court noted that the interest charged by the bank was compound and therefore excessive. However, the bank failed to provide evidence justifying the rate of interest, leading to a modification of the decrees to reduce the interest rate to a reasonable 11 1/2 percent simple interest.
In conclusion, the judgment clarified the applicability of the Andhra Pradesh Agriculturists Relief Act, determined the status of the Union Bank of India as a Corporation formed under special Indian law, and addressed the excessive interest charged under the Usurious Loans Act, ultimately modifying the decrees in favor of the bank with a reduced interest rate.
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1978 (11) TMI 162
Issues:
- Suit for possession of agricultural lands based on trespass or termination of tenancy
- Validity of trust registration under Bombay Public Trusts Act, 1950
- Interpretation of Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948
- Application of the doctrine of 'relation back' in trust registration
Analysis:
The appellant, a Public Trust, filed a suit for possession of agricultural lands against the defendants alleging trespass or termination of tenancy. The suit lands were initially owned by the Chhatrapati of Kolhapur and donated to the trust. The trust was registered under the Bombay Public Trusts Act, 1950, and obtained a certificate under Section 88-B (2) of the Tenancy Act. The trial proceeded on the basis that the predecessor of defendant No. 4 was the only tenant, and his tenancy was terminated. The main contention was whether the trust's registration was valid and if the suit was maintainable based on the ownership status of the lands.
The defendants argued that they became owners of the suit lands under Section 32 of the Tenancy Act on 1st April 1957, and the trust's registration did not affect their ownership rights. The trial court found that defendant No. 4 had become the owner of the lands on 1st April 1957 and dismissed the suit based on this finding. The appellant challenged this decision on the grounds that the trust was created before defendant No. 4 became the owner, and therefore, the trust's registration should be deemed to have occurred earlier.
The High Court rejected the appellant's argument, emphasizing that trust registration under the Bombay Public Trusts Act required a formal process, not merely the filing of an application. The court clarified that registration is completed only after an order is passed by the competent authority and the entry is made in the register. As the trust was registered after the tillers' day, the court upheld the trial court's decision that the suit was not maintainable based on the ownership rights of defendant No. 4.
The court further explained that the trust could not claim exemption under Section 88-B of the Tenancy Act for the suit lands, as defendant No. 4 had already become the owner before the trust acquired the right of exemption. The court emphasized strict construction of the law, stating that the trust's registration could not extinguish the tenant's vested ownership rights. Ultimately, the court upheld the trial court's decision to dismiss the suit, ruling that the suit was not maintainable due to the ownership status of the lands.
In conclusion, the court dismissed the appeal, stating that the trial court was correct in its decision. No costs were awarded in the circumstances of the case.
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1978 (11) TMI 161
Issues Involved:
1. Revocation of leave to sue under Clause 12 of the Letters Patent.
2. Validity of the original suit without obtaining leave under Clause 12.
3. Addition of a new party and obtaining leave under Clause 12.
4. Balance of convenience in granting or revoking leave.
Issue-wise Detailed Analysis:
1. Revocation of Leave to Sue Under Clause 12 of the Letters Patent:
The appeal was filed against an order refusing to revoke the leave to sue granted to the plaintiff under Clause 12 of the Letters Patent. The plaintiff filed a suit for a declaration that the termination of its agency was illegal and sought a permanent injunction or damages. The suit was initially filed without obtaining leave under Clause 12, as it was asserted that the first defendant carried on business in Madras through its agents. Subsequently, the plaintiff filed an application to implead the Clan Line Steamers Ltd. as the fourth defendant and sought leave under Clause 12, which was granted. The fourth defendant contested this grant, arguing that leave should have been obtained at the time of the original suit's filing.
2. Validity of the Original Suit Without Obtaining Leave Under Clause 12:
The court considered whether the suit was non est (non-existent) due to the absence of leave under Clause 12 at the time of filing. It was noted that the determination of whether the first defendant carried on business within the court's jurisdiction required elaborate consideration during the trial. The court held that the suit against the first defendant could not be deemed non est at this stage. It was established that if it is later found that the first defendant did not carry on business within the jurisdiction, the legal consequences would follow, and the defect of not obtaining leave initially could not be cured subsequently.
3. Addition of a New Party and Obtaining Leave Under Clause 12:
The court examined whether leave under Clause 12 could be granted when a new party is added to the suit. It was argued that the suit against the new party (fourth defendant) should be treated as a new suit, requiring fresh leave under Clause 12. The court referred to various precedents and concluded that leave could be granted when a new party is added, even if the original suit was filed without obtaining leave. The court emphasized that the addition of a new party constitutes a new suit against that party, and obtaining leave under Clause 12 is necessary for the new party.
4. Balance of Convenience in Granting or Revoking Leave:
The court considered the balance of convenience in deciding whether to revoke the leave granted under Clause 12. It was noted that the plaintiff's choice of forum should not be interfered with unless it is shown to be mala fide or if the chosen forum would cause significant inconvenience or injustice to the defendant. The court found that the evidence regarding the subject matter of the suit was available in Madras, and there were no circumstances indicating that the plaintiff's choice of forum was mala fide. The court also noted that the balance of convenience did not overwhelmingly favor revoking the leave.
Conclusion:
The court upheld the decision of the trial judge to refuse the revocation of leave granted under Clause 12 of the Letters Patent. The appeal was dismissed with costs, affirming that the leave granted to sue the proposed fourth defendant was valid and that the balance of convenience favored allowing the suit to proceed in the chosen forum.
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1978 (11) TMI 160
Issues Involved:
1. Possession of the disputed land.
2. Interpretation of "public utility" under Article 226(6) of the Constitution.
3. Legitimacy of the acquisition for public utility.
4. Balance of convenience and irreparable injury.
5. Timeliness and expediency of the stay application.
Issue-wise Detailed Analysis:
1. Possession of the Disputed Land:
The petitioner, Bharat Bhawan Nirman Sahkari Samiti Ltd., Jaipur, filed a stay petition under Section 151 C.P.C. to restrain the respondents from interfering with their possession of Khasra Nos. 87 and 88 in Jaipur. The respondents, including the Urban Improvement Trust (UIT) and Rajasthan Housing Board, opposed this, asserting that the disputed land was already in their possession. The court noted that the respondents had substantiated their claim with documents showing possession was taken on 7-2-1977. The petitioner's contention of only "paper possession" was not accepted, as the documents remained undisputed. The court concluded that possession was with the respondents and any challenge to this could only be decided during the final hearing of the writ application.
2. Interpretation of "Public Utility" under Article 226(6):
The petitioner argued that the acquisition was not for "public utility," citing the Andhra Pradesh High Court decision in Talasani China Gang! Reddy v. Dist. Collector, Anantpur, which interpreted "public utility" narrowly. However, the court disagreed with this interpretation, stating that the distinction between "public purpose" and "public utility" was without real difference. The court held that if a purpose serves a section of the public, it qualifies as a public purpose and similarly, a section of people's utility can be considered public utility. The court emphasized that public utility should be understood in a generic sense, meaning any work or project useful to the public at large, even if utilized by a section of the community.
3. Legitimacy of the Acquisition for Public Utility:
The court examined the notification of acquisition, which stated that the land was required for the planned development of Jaipur City. The court found no challenge to the genuineness or bona fides of this requirement. The court concluded that the housing scheme, which included construction of houses, roads, and amenities like parks, was meant for public use and thus qualified as a project of public utility under Article 226(6). The court also referenced various cases, including State of Bombay v. Bhanji Munji and H.P. Khandelwal v. State of Uttar Pradesh, which supported the view that housing for the homeless and rehabilitation of refugees were considered public purposes.
4. Balance of Convenience and Irreparable Injury:
The court noted that the petitioner had not constructed any houses on the disputed land, meaning no substantial injury of an irreparable nature could be claimed. The balance of convenience favored the respondents, as the Housing Board had already invested significantly in the project. The court also mentioned that the petitioner's delay in challenging the notification (after about two years) made it inexpedient to stay the implementation of the housing scheme during the pendency of the writ application.
5. Timeliness and Expediency of the Stay Application:
The court observed that the petitioner had challenged the notification of acquisition after a significant delay, which affected the expediency of granting a stay. The court highlighted that any technical violations alleged by the petitioner could be addressed by the respondents through fresh proceedings if necessary. Therefore, it was not in the interest of justice to stay the implementation of the housing scheme.
Conclusion:
The court dismissed the stay petition, vacating the interim stay. The court held that the acquisition of land for the housing scheme was for public utility and fell within the blanket prohibition against granting stay or injunction under Article 226(6) of the Constitution. The court also found that the balance of convenience and the lack of irreparable injury to the petitioner further justified the dismissal of the stay application.
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1978 (11) TMI 159
Issues Involved:
1. Acquittal and Conviction under Section 302, IPC
2. Testimony and Evidence Evaluation
3. Motive and Circumstantial Evidence
4. Principles for Interference with Acquittal
Summary:
1. Acquittal and Conviction under Section 302, IPC:
The appellant was acquitted by the Additional Sessions Judge, Chittor, of an offence u/s 302, IPC. The High Court of Andhra Pradesh reversed this acquittal, convicting the appellant u/s 302, IPC, and sentencing him to life imprisonment.
2. Testimony and Evidence Evaluation:
The prosecution's case was that the appellant stabbed his wife, Subhadramma, in the presence of witnesses P.Ws. 1, 2, and 3. The learned Sessions Judge found the prosecution's evidence to be 'discrepant, conflicting and improbable,' leading to the appellant's acquittal. However, the High Court found no reason to doubt the testimony of P.Ws. 1 to 3, considering the discrepancies minor and the evidence corroborated by P.Ws. 4 and 5. The High Court concluded that the medical evidence supported the prosecution's version, not the defense's.
3. Motive and Circumstantial Evidence:
The appellant argued that he had no motive to kill his wife and that his version of events was more probable. The High Court observed that the appellant might have been upset by the refusal of the deceased's family to send her to his house, which could have led to the incident. The High Court dismissed the defense's argument that the injury could have been caused in the manner suggested by the accused, finding the prosecution's version more plausible.
4. Principles for Interference with Acquittal:
The appellant's counsel argued that the High Court should not interfere with the trial court's acquittal if two views were possible. The Supreme Court reiterated that the Appellate Court has the right to review the entire evidence and come to its own conclusions, as established in Sanwat Singh v. State of Rajasthan and Sheo Swarup v. Emperor. The Court emphasized that fanciful and remote possibilities must be excluded, and any doubt must be reasonable. The High Court was justified in interfering with the acquittal as the trial court had rejected credible evidence for slender reasons and taken a barely possible view of the evidence.
Conclusion:
The Supreme Court found no substance in the appellant's submissions and upheld the High Court's decision to convict the appellant u/s 302, IPC. The appeal was dismissed.
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1978 (11) TMI 158
Issues Involved:
1. Legality of Joint Power of Attorney
2. Scope and Authority of Power of Attorney
3. Validity of Sale Transactions
4. Admission of Additional Evidence
5. Plaintiff's Status as Benamidar
6. Impact of Compromise with Certain Defendants
Detailed Analysis:
1. Legality of Joint Power of Attorney:
The appellant contended that it was impermissible for three individuals to jointly grant a Power of Attorney to a single agent. The court refuted this by stating, "Co-principals may jointly appoint an agent to act for them and in such case become jointly liable to him and may jointly sue him." The court found no violation of the Contract Act or general law of contract, thereby validating the joint Power of Attorney.
2. Scope and Authority of Power of Attorney:
The appellant argued that the Power of Attorney only allowed for the management of joint properties and not individual properties. The court examined the Power of Attorney, Ext. P-1, and the supplementary deed, Ext. P-2. It concluded that the language of Ext. P-1 conferred wide authority, including the power to "purchase or sell lands and to execute the sale deeds and get registered under his signature." The court emphasized that the Power of Attorney was executed in a context where the principals were contemplating migration to Pakistan and needed to manage their properties efficiently.
3. Validity of Sale Transactions:
The appellant claimed that the sales executed by the agent were invalid as they were allegedly negotiated by an outsider. The court noted that the agreement for sale was entered into by the plaintiff's father and that the agent merely executed the sale deed. The court found that the plaintiff had acquiesced in the sale by accepting the consideration and thus was estopped from challenging the validity of the sale. The principle under Section 41 of the Transfer of Property Act was invoked, which protects the transferee if the transferor was an ostensible owner with the consent of the real owner.
4. Admission of Additional Evidence:
The appellant challenged the High Court's decision to admit additional evidence, specifically the registered sale deeds. The court upheld the High Court's decision, stating that Order 41, Rule 27, C.P.C., allows for additional evidence if it is required to pronounce judgment. The registered sale deeds were deemed essential for a fair judgment, and their admission was justified.
5. Plaintiff's Status as Benamidar:
The respondents argued that the plaintiff was a benamidar and thus not entitled to seek possession. The court examined the circumstances under which the land was granted and found no evidence of consideration flowing from the father to the plaintiff. The court concluded that the plaintiff was not a benamidar, as the essential elements of a benami transaction were absent.
6. Impact of Compromise with Certain Defendants:
The appellant had compromised with some defendants and withdrawn the appeal against them. The respondents argued that this rendered the appeal against the remaining defendants infructuous. The court dismissed this contention, stating that the compromise did not affect the substantive issues regarding the scope of the Power of Attorney and the validity of the sales.
Conclusion:
The court dismissed the appeal, affirming the High Court's judgment. The Power of Attorney was valid and conferred broad authority, including the power to sell lands. The sales executed under this authority were binding, and the plaintiff was not a benamidar. The admission of additional evidence by the High Court was justified, and the compromise with certain defendants did not invalidate the appeal against the others. The appeal was dismissed with costs.
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1978 (11) TMI 157
Issues Involved:
1. Competency of the Revision Application to the High Court under Section 397(3) of the CrPC 1974.
2. Applicability of Article 227 of the Constitution.
3. Continuance of maintenance order under Section 488 of the CrPC 1898 after the enactment of the CrPC 1974.
4. Application of Section 127 of the CrPC 1974 for cancellation of maintenance order.
Summary:
1. Competency of the Revision Application to the High Court under Section 397(3) of the CrPC 1974:
The first issue was whether the High Court was precluded from interfering with the Magistrate's order due to Section 397(3) of the CrPC 1974. Section 397(3) prevents multiple exercises of revisional powers to secure early finality to orders. The respondent's revision application to the High Court was deemed incompetent as it was barred by Section 397(3) after the Sessions Judge had already been approached.
2. Applicability of Article 227 of the Constitution:
The respondent suggested that the revision application could be sustained under Article 227 of the Constitution. However, the High Court did not purport to exercise its power of superintendence under Article 227. The power under Article 227 is discretionary and is meant to keep subordinate courts within their authority, not to correct mere errors. The 42nd Amendment Act further restricted this power, and the High Court's order could not be sustained under Article 227.
3. Continuance of maintenance order under Section 488 of the CrPC 1898 after the enactment of the CrPC 1974:
Section 484(2)(b) of the CrPC 1974 provides that orders made under the old Code shall be deemed to have been made under the corresponding provisions of the new Code. The maintenance order under Section 488 of the old Code was deemed to be made under Section 125 of the new Code. Despite the change in law, Section 125 of the new Code corresponds to Section 488 of the old Code, and the maintenance order did not automatically cease to be effective with the enactment of the new Code.
4. Application of Section 127 of the CrPC 1974 for cancellation of maintenance order:
Once the maintenance order under Section 488 is deemed to be an order under Section 125 of the new Code, it must also be subject to Section 127 of the new Code. Section 127 allows for the cancellation of maintenance orders upon proof of a change in circumstances. The attainment of majority by the respondent and the change in law were circumstances that entitled the appellant to have the maintenance order cancelled. The appeal was allowed, and the judgment of the High Court was set aside.
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1978 (11) TMI 156
Issues Involved:
1. Termination of a temporary employee without notice.
2. Alleged violation of Articles 14 and 16 of the Constitution.
3. Hostile discrimination and arbitrary treatment.
4. Applicability of service conditions and contractual terms.
Summary:
1. Termination of a Temporary Employee Without Notice:
The respondent, Belliappa, was appointed as a temporary Junior Compositor in the Government Branch Press, Mercara. His employment was temporary and terminable at any time without notice. On January 3, 1967, his service was terminated without assigning any reason, as per the conditions of his temporary appointment.
2. Alleged Violation of Articles 14 and 16 of the Constitution:
The High Court held that the termination contravened the guarantee of equal treatment embodied in Article 16. The Supreme Court upheld this, stating that Articles 14 and 16(1) apply even to temporary employees if they are arbitrarily discriminated against. The Court emphasized that discretion must be exercised with reason and fairness, not capriciously, and arbitrary termination constitutes denial of equal protection.
3. Hostile Discrimination and Arbitrary Treatment:
Belliappa alleged hostile discrimination, stating that three other temporary Junior Compositors, junior to him, were retained while he was terminated. The appellant did not rebut these allegations or provide any special reason for the differential treatment. The Court found that the termination was arbitrary and not based on unsuitability or unsatisfactory conduct, thus violating Articles 14 and 16(1).
4. Applicability of Service Conditions and Contractual Terms:
The appellant argued that the termination was in accordance with the terms of Belliappa's temporary employment, which allowed termination without notice. The Court rejected this, stating that even if the termination was per the service conditions, it must not be arbitrary. The Court noted that the old doctrine of absolute employer's right to discharge an employee is outdated and incompatible with modern socio-economic conditions.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision that the termination of Belliappa's service was arbitrary and discriminatory, violating Articles 14 and 16(1) of the Constitution. The Court emphasized the need for fairness and reason in exercising discretion to terminate temporary employment.
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1978 (11) TMI 155
Issues Involved:
1. Validity of the sanction accorded u/s 6 of the Prevention of Corruption Act, 1947.
2. Abatement of the appeal due to the death of the appellant.
Summary:
1. Validity of the Sanction Accorded u/s 6 of the Prevention of Corruption Act, 1947:
The appellant was convicted for offences u/s 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act, 1947, and s. 161 of the Indian Penal Code. The primary issue was whether the sanction accorded by the Joint Chief Controller of Imports & Exports (Jt. C.C.I.E.) was valid. The appellant contended that the sanction should have been given by the Government of India or the Chief Controller of Imports & Exports (C.C.I.E.), not the Jt. C.C.I.E. The court examined the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and the relevant S.R.O. 631 issued by the President, which designated the Jt. C.C.I.E. as the appointing and disciplinary authority for Class III posts in the C.C.I.E. organization. The court concluded that the Jt. C.C.I.E. was competent to accord sanction u/s 6(1)(c) of the Act, making the sanction valid.
2. Abatement of the Appeal Due to the Death of the Appellant:
The respondent raised a preliminary objection that the appeal should abate due to the appellant's death. However, the court referred to s. 394 of the Criminal Procedure Code, which allows near relatives to continue the appeal if it is against a conviction and sentence of imprisonment. The appellant's near relatives applied for leave to continue the appeal, which was granted by the court. Consequently, the appeal did not abate.
Conclusion:
The court found no merit in the appellant's contention regarding the invalidity of the sanction and dismissed the appeal. The preliminary objection regarding the abatement of the appeal was also negated. The appeal was dismissed, and as the appellant was deceased, there was no question of his surrendering to bail.
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1978 (11) TMI 154
Issues involved: Premature retirement of a government servant under clause (j) (i) of Rule 56 of the Fundamental Rules, exercise of discretionary power, malice in law, influence of extraneous matters on administrative orders.
Summary:
The appellant, a government servant, was prematurely retired from service under clause (j) (i) of Rule 56 of the Fundamental Rules, on the ground of public interest. The appellant challenged this retirement through a writ petition, alleging bias, malice, and lack of proper consideration in the decision-making process. The appellant contended that the premature retirement order was arbitrary, capricious, and not made in accordance with the prescribed criteria and procedures. The appellant highlighted favorable assessments in her service record and lack of justifiable reasons for the retirement decision.
The court noted that the power to retire a government servant prematurely must be exercised in line with established criteria and procedures. The appellant's claim of malice was examined, distinguishing between malice in fact and malice in law. The court emphasized that if discretionary power is used for an unauthorized purpose, the good or bad faith of the decision-maker is irrelevant. The court cited precedents to support the principle that decisions based on non-existent facts or influenced by extraneous matters amount to an abuse of power.
Upon review of the appellant's case and the admission by the Union of India that there was no justification for the premature retirement order, the court concluded that the decision was unfair and amounted to an abuse of power. Consequently, the court allowed the appeal, set aside the retirement order, and directed the government to bear the costs.
In conclusion, the court's decision highlighted the importance of proper exercise of discretionary powers, adherence to established procedures, and avoidance of decisions influenced by extraneous factors in administrative matters involving government servants' premature retirement.
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1978 (11) TMI 153
Smuggling of Cargo of contraband goods - detention orders - Held that:- It is quite clear from the facts set out in the grounds of detention, that the appellant was the person who was actually engaged in the act of smuggling of the contraband stainless steel rolls into the Indian customs waters. It is, therefore, clear that for all intents and purposes the appellant was the actual smuggler and not a mere abettor. Furthermore, the activities of the appellant were such that his case would be covered by both clauses (i) and (ii) of s. 3(1) of the Act. Thus, there was due application of mind.
It is manifest that the appellant could in the instant case be detained under sub-s.(1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 both under clauses (i) and (ii) thereof. In any case, even assuming that the appellant was merely an abettor of the smuggling of 12 rolls of stainless steel sheets on this occasion, still his activities in this transaction afforded sufficient grounds for the prognosis that he would have himself indulged in actual smuggling of the balance lot of 8 rolls of stainless steel sheets remaining behind at Dubai, if not detained, and as such cl. (i) s. 3(1) of the Act was properly invoked. W.P.dismissed.
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1978 (11) TMI 152
The Government of India considered a revision application regarding the classification of a product called bead repair fabric, made by rubberising grey canvas. It was determined that the product should be classified under Tariff Item 19I(i) as rubberised fabric, not under Tariff Item 16A(2) as a rubber product. The demand for processing surcharge was deemed correct, and the Revision Application was rejected.
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1978 (11) TMI 151
Whether or not the courts below were legally justified in discharging the respondents?
Held that:- The High Court correctly pointed out that the records before the Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of ₹ 1.70 lakhs per acre as far back 1: as 3-2-1970 and if two years later the valuation was raised to ₹ 2 lakhs it cannot be said that the land was in any way over-valued. Lastly, there does not appear to be any legal evidence to show any; meeting of mind between respondents No. 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant relation of respondent No. 1 he had himself slashed down the rate of compensation recommended by the Revenue officer from ₹ 2,10,000 to ₹ 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.
For these reasons, therefore, we find ourselves in complete agreement with the view taken by the High Court that there was no sufficient ground for trying the accused in the instant case. Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances. For the reasons given above, the judgement of the High Court is affirmed and the appeal is dismissed.
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1978 (11) TMI 150
Detenu release orders - Held that:- Appeal allowed. Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal. For these reasons we set aside the impugned detention order.
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1978 (11) TMI 149
Whether the detenu be set at liberty?
Held that:- There was no material before the 4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities. The detenu has been under detention from 4th July, 1977 and the period of detention permissible under section 3 is only one year. Section 9(1) enables the authority to make a declaration which would have the effect of extending the period of detention to two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 1976. As we have found that the order under section 9(1) has not been validly made and as the detenu has been in detention for more than one year his continuance in detention is not sustainable. In the circumstances, we allow the petition.
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