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1987 (11) TMI 406
Issues Involved:
1. Contravention of Section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973.
2. Separate adjudications for the same set of circumstances.
3. Evidentiary value of the appellant's statements and seized documents.
4. Justification for penalties imposed.
Issue-wise Detailed Analysis:
1. Contravention of Section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973:
The appellant, Shri Gopal Chandra Saha, was charged with contravening Section 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973. The enforcement authorities alleged that he received and made payments in Indian currency on instructions from his non-resident brother, Shri Kanu Saha, without the permission of the Reserve Bank of India. The adjudicating officer initially found that only two payments totaling Rs. 16,000 were proven, resulting in a penalty of Rs. 5,000. However, the Director of Enforcement contended that the contraventions involved a much larger amount of Rs. 18,93,991, warranting a more severe penalty.
2. Separate adjudications for the same set of circumstances:
The judgment criticized the conduct of two separate adjudications based on the same investigation and evidence. The first adjudication dealt with a small amount of Rs. 27,400, while the second dealt with larger amounts. This separation led to conflicting and unsustainable conclusions, weakening the foundation of the charges. The judgment emphasized the lack of justification for holding two separate adjudications for the same set of circumstances against the same person.
3. Evidentiary value of the appellant's statements and seized documents:
The appellant's statement recorded on 16-6-1982, where he admitted to making and receiving payments on behalf of his brother, was retracted on 18-6-1982. The retraction raised questions about the reliability of the initial statement. The adjudicating officer's decision was based on the appellant's initial statement and seized documents, but the judgment highlighted inconsistencies and the lack of concrete evidence linking the appellant to the alleged transactions. The judgment noted that the appellant's subsequent statement on 3-5-1984 did not provide sufficient clarity on the transactions.
4. Justification for penalties imposed:
The judgment found the penalties imposed to be disproportionate and excessive. The penalty of Rs. 20,000 for an alleged contravention involving Rs. 27,400 was deemed far too excessive. The judgment emphasized that the enforcement authorities failed to prove the connection between the seized amount and the alleged contraventions. The possession of Indian currency by an Indian resident is not an offense unless it is proven to be received on instructions from a non-resident, which was not adequately demonstrated.
Conclusion:
The judgment concluded that both orders under appeal could not be sustained. Appeal No. 219 of 1986 was allowed, setting aside the penalty imposed. Appeal No. 195 of 1985 filed by Shri Gopal Chandra Saha was dismissed, while Appeal No. 190 of 1985 filed by the Director of Enforcement was partly allowed. The matter was referred back for fresh adjudication in consolidated proceedings, with the confiscated amount retained for final adjustment.
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1987 (11) TMI 405
Issues:
Challenge to validity of detention under National Security Act, 1980.
Delay in forwarding representation to Central Government affecting detention's legality.
Failure of State Government to comply with detenu's request for onward transmission of representation.
Detailed Analysis:
1. The petitioner challenged the validity of his detention under the National Security Act, 1980, by the District Magistrate. The detention was based on the necessity to prevent prejudicial activities affecting public order. The petitioner filed a writ petition questioning the detention on various grounds, including the failure of the Central Government to address his representation promptly.
2. The timeline of events revealed a delay in processing the petitioner's representation. While the representation was made to the State Government on August 3, 1987, it was not forwarded to the Central Government until October 10, 1987. The Central Government rejected the representation on October 16, 1987, and communicated the decision on October 19, 1987. This delay was primarily attributed to the State Government's failure to promptly forward the representation.
3. The Supreme Court emphasized the detenu's right to make a representation to the Central Government for the revocation of the detention order under Section 14(1) of the Act. The failure of the State Government to comply with the detenu's request for onward transmission of the representation deprived the detenu of this valuable right. Consequently, the Court deemed the continued detention of the petitioner illegal and constitutionally impermissible.
4. In light of the above analysis, the Supreme Court allowed the writ petition, directing the issuance of a writ of habeas corpus. The Court held the petitioner's continued detention to be invalid and ordered his immediate release. The judgment underscored the importance of procedural compliance and safeguarding the detenu's rights in matters of detention under preventive laws like the National Security Act, 1980.
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1987 (11) TMI 404
The Supreme Court allowed the appeal, setting aside the High Court's order that reversed the release of a truck. The High Court had no jurisdiction to entertain the revision as it violated Section 397(3) of the Cr.P.C. The Order of the Magistrate releasing the truck was upheld.
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1987 (11) TMI 403
Issues Involved:
1. Whether the Magistrate took cognizance of the offence before recording the sworn statements of the complainant and his witnesses.
2. Validity of the subsequent proceedings and the order of issuing process.
3. Misdescription of the revision petitioner.
4. Other contentions raised by the State Public Prosecutor, including the want of sanction under Section 197 Cr.P.C.
Issue-wise Detailed Analysis:
1. Whether the Magistrate took cognizance of the offence before recording the sworn statements of the complainant and his witnesses:
The primary issue in this case revolves around the procedural requirement under Section 200 Cr.P.C., which mandates that a Magistrate must take cognizance of an offence before recording the sworn statements of the complainant and his witnesses. The complainant alleged that the accused, Mahadevaiah, committed offences under Sections 499, 500, and 510 of the I.P.C. The complaint was filed on 4-7-1987, and the Magistrate issued process against the accused after recording the sworn statements of the complainant and two witnesses. The State Public Prosecutor contended that the Magistrate did not take cognizance of the offences before recording the sworn statements, rendering the subsequent proceedings void and bad at law. The judgment emphasized that the stage of taking cognizance must precede the act of recording sworn statements, as supported by precedents such as *Revanappa and Another v. S.N. Raghunath* and *Gopal Das Sindhi and Others v. State of Assam and Another*. The Court concluded that the Magistrate did not apply his mind to the allegations before recording the sworn statements, thereby failing to take cognizance as required by law.
2. Validity of the subsequent proceedings and the order of issuing process:
The judgment clarified that taking cognizance of an offence is a prerequisite for recording sworn statements under Section 200 Cr.P.C. The Magistrate's failure to take cognizance before recording the sworn statements rendered the subsequent proceedings, including the order of issuing process, invalid. The Court noted that the endorsement in the order sheet indicated that the Magistrate did not take cognizance before proceeding to record the sworn statements. Consequently, the order of issuing process was quashed due to non-compliance with Sections 190 and 200 Cr.P.C. The Court emphasized that cognizance of an offence can only be taken once and must precede the recording of sworn statements.
3. Misdescription of the revision petitioner:
The revision was filed with the petitioner described as "State by A. Mahadeva, Assistant Commissioner and Sub-Divisional Magistrate, Chickballapur Sub Division, Kolar District." The Court observed that the complaint was filed against Mahadevaiah in his personal capacity, not against the State or in his capacity as a public servant. Therefore, Mahadevaiah should have been the revision petitioner. The Court noted that the State's involvement in the revision was inappropriate and should have been left to Mahadevaiah alone.
4. Other contentions raised by the State Public Prosecutor, including the want of sanction under Section 197 Cr.P.C.:
The Court did not address other contentions raised by the State Public Prosecutor, such as the requirement of sanction under Section 197 Cr.P.C., as the case was disposed of on the technical ground of non-compliance with Sections 190 and 200 Cr.P.C. These contentions were kept open for consideration in future proceedings.
Conclusion:
The order passed by the Magistrate was set aside, and the revision was allowed. The matter was remanded to the Magistrate for fresh disposal in accordance with the law, with specific directions to first consider whether to take cognizance of the offence and, if so, to record the sworn statements of the complainant and his witnesses afresh before proceeding further.
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1987 (11) TMI 402
Issues:
1. Validity of detention order under the National Security Act, 1980.
2. Consideration of act as prejudicial to the maintenance of public order.
3. Distinction between law and order problem and disturbance of public order.
Analysis:
Issue 1: Validity of detention order under the National Security Act, 1980
The Supreme Court heard two appeals against the High Court of Allahabad's order upholding the detention orders passed under Section 3(2) of the National Security Act, 1980. The detention orders were served to the appellants along with the grounds of detention and the first information report upon their detention. The State Government approved the detention orders under Section 3(4) of the Act after the appellants' representations were rejected. The Government confirmed the detention orders for a period of 12 months from the respective dates of detention.
Issue 2: Consideration of act as prejudicial to the maintenance of public order
The main contention before the High Court was whether the act leading to the detention orders related to the maintenance of law and order or the disturbance of public order. The High Court analyzed the impact of the act on society as a whole, focusing on the sense of insecurity and danger it created beyond the individual victims. It was observed that the act aimed to deter others from competing with the appellants in tender submissions, affecting the community of contractors. The High Court concluded that the detention orders were legal and valid, dismissing the writ petitions.
Issue 3: Distinction between law and order problem and disturbance of public order
The Supreme Court emphasized the distinction between acts directed against individuals, creating a law and order problem, and acts disturbing public order by causing a general disturbance of public tranquility. It cited previous judgments to establish that public order refers to the even tempo of community life and is jeopardized by acts with a significant impact on society. In the present case, the alleged assault was limited to the complainant and did not extend to causing public disturbance. The Court found that the act did not create terror or panic in the community and did not affect the even tempo of community life. Notably, similar appeals arising from the same incident and grounds of detention were allowed by the Court, directing the release of the appellants.
In conclusion, the Supreme Court allowed the appeals without costs, emphasizing the importance of considering the degree and extent of an act's impact on society to determine if it constitutes a breach of law and order or a disturbance of public order.
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1987 (11) TMI 401
Issues Involved:
1. Interpretation of Rule 200 of the Kerala Cooperative Societies Rules.
2. Preservation of rights and privileges of employees before 1-1-1974.
3. Qualification requirements for promotion under the new rules.
4. Age of superannuation for employees appointed before 1-1-1974.
5. Applicability of writ petitions against Cooperative Societies.
Detailed Analysis:
1. Interpretation of Rule 200 of the Kerala Cooperative Societies Rules:
The primary issue in this judgment is the interpretation of Rule 200, which was referred to a Full Bench due to an "apparent conflict" between two Division Bench rulings. Rule 200 states: "Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any right or privilege of emoluments to which he is entitled by the term of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society on the date on which these Rules shall come into force."
2. Preservation of Rights and Privileges of Employees Before 1-1-1974:
The Court examined whether Rule 200 saved all rights accrued to employees before 1-1-1974, including the right to earn promotion based on old bye-laws and rules. It was contended that only the "right or privilege of emoluments" earned before 1-1-1974 is saved. The Court concluded that Rule 200 preserves all rights which the existing employees were entitled to before 1-1-1974 and also the privilege of emoluments under the earlier bye-laws or rules.
3. Qualification Requirements for Promotion Under the New Rules:
The Court addressed whether employees appointed before 1-1-1974 could be promoted without meeting the new qualifications prescribed by the 1974 rules. It was held that Rule 200 saves the existing employees' right to promotion to one higher post without reference to the new qualifications, provided they were qualified under the old rules or bye-laws. However, if no qualification was fixed prior to 1-1-1974, promotion can only be effected in accordance with the new rules after 1-1-1974.
4. Age of Superannuation for Employees Appointed Before 1-1-1974:
The Court considered whether employees appointed before 1-1-1974 could continue in service until the age of 60 as provided in the old bye-laws, or only until the age of 58 as per the new rules. It was held that the right to continue in service until the age of 60 is preserved under Rule 200. The circulars issued by the Registrar compelling retirement at 58 were quashed.
5. Applicability of Writ Petitions Against Cooperative Societies:
The Court reiterated that no writ will lie against a Cooperative Society governed by the Kerala Cooperative Societies Act, as these societies are not statutory bodies and do not have deep and pervasive State control. The management of these societies is under the effective control of a committee elected by the members. Consequently, the writ petitions were dismissed on this ground.
Judgment Summary:
The Full Bench provided a comprehensive interpretation of Rule 200, preserving the rights and privileges of employees appointed before 1-1-1974. The Court clarified that:
1. All rights which the existing employees were entitled to on or before 1-1-1974 are preserved.
2. Pre-existing privileges of emoluments alone are saved under the rule.
3. Existing employees are entitled to promotion to one higher post without reference to the qualifications prescribed by the new rules, provided they were qualified under the old rules or bye-laws.
4. If no qualification was fixed prior to 1-1-1974, promotion can only be effected in accordance with the new rules after 1-1-1974.
5. A plea for relaxation is only a claim of privilege and is not protected under Rule 200. Relaxation granted before 1-1-1974 can be pressed into service relying on this rule.
The Court quashed the circulars issued by the Registrar compelling retirement at 58 and directed the Registrar to issue fresh circulars incorporating the principles stated in the judgment. The petitions and appeal were disposed of accordingly, with specific directions to consider the claims afresh based on the Court's interpretation of Rule 200.
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1987 (11) TMI 400
Issues Involved:
1. Validity of the detention order under Section 3(2) of the National Security Act, 1980.
2. Fair and reasonable opportunity for the detenus to make an effective representation.
3. Distinction between "law and order" and "public order."
4. Non-supply of relevant documents to the detenus.
5. Non-consideration of relevant materials by the detaining authority.
Issue-wise Detailed Analysis:
1. Validity of the Detention Order:
The appeal challenged the High Court's quashing of the detention order under Section 3(2) of the National Security Act, 1980. The High Court found that the incidents cited did not affect public order but were confined to law and order issues. The Supreme Court upheld this finding, emphasizing that the incidents did not disturb the even tempo of the life of the community.
2. Fair and Reasonable Opportunity:
The detenus contended that they were not given a fair and reasonable opportunity to make an effective representation as required under Section 10 of the National Security Act. They argued that they were not supplied with relevant documents, including statements recorded under Section 161 CrPC, which formed part of the charge-sheet. The High Court agreed, finding that the non-supply of these documents vitiated the detention order.
3. Distinction between "Law and Order" and "Public Order":
The High Court held that the incidents cited in grounds 1 and 2 pertained to law and order and not public order. The Supreme Court affirmed this, citing precedents like Dr. Ram Manohar Lohia v. State of Bihar and Arun Ghosh v. State of West Bengal, which distinguish between acts affecting individuals (law and order) and those affecting the community at large (public order).
4. Non-supply of Relevant Documents:
The High Court found that the detenus were not supplied with vital documents such as statements recorded under Section 161 CrPC, which were essential for making an effective representation. The Supreme Court upheld this finding, stating that the non-supply of these documents infringed the detenus' right under Article 22(5) of the Constitution of India.
5. Non-consideration of Relevant Materials:
The High Court noted that relevant materials, including an application by co-accused and statements in bail applications, were not placed before the detaining authority. The Supreme Court agreed, stating that all vital materials must be placed before the detaining authority to enable proper subjective satisfaction. The failure to do so rendered the detention order invalid.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's findings that the detention order was invalid due to the non-supply of relevant documents and non-consideration of vital materials. The Court emphasized the importance of distinguishing between "law and order" and "public order" and the necessity of providing detenus with all relevant documents to ensure a fair opportunity for representation.
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1987 (11) TMI 399
The appeal was regarding the allowability of cash purchases totaling Rs. 2,09,705 under r. 6DD(j) and Board's Circular No.220. The purchases made at places different from the assessee's business location without a bank account were held allowable. The appeal was allowed by the ITAT Jaipur.
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1987 (11) TMI 398
Issues:
Assessment based on rejected account books, estimation of turnover, burden of proof on revenue, rejection of certificate, assessment to best judgment, necessity of evidence for estimation.
Analysis:
The judgment dealt with the assessment of sales tax for a brick manufacturing business based on rejected account books. The Sales-tax Tribunal rejected the account books due to various deficiencies, including the absence of a separate register for pathai, lack of vouchers for coal and firewood purchases, and discrepancies in turnover. The Tribunal upheld the rejection of the accounts, citing non-compliance with Section 12(2) of the Act. The court affirmed that for such non-compliance, account books are liable to be rejected, as previously held in several decisions. This rejection was deemed valid by the court.
Regarding the estimation of turnover, the assessee argued that the Tribunal's estimation was excessive and arbitrary. The assessee claimed non-operation of the brick kiln during the relevant period, supported by a certificate and oral statement. However, the court found no material to prove the operation of the kiln. The court emphasized the distinction between rejecting accounts and assessing to best judgment, stating that the latter requires some evidential basis. Quoting a Supreme Court ruling, the court highlighted the necessity of evidence or material to support any estimate made during assessment.
The court criticized the rejection of the certificate provided by the assessee and the lack of scrutiny of the explanation for non-operation of the kiln due to coal shortage. The findings of the Sales Tax Tribunal were deemed unsubstantiated and lacking in relevant material. As a result, the court directed the matter to be referred back to the Sales Tax Tribunal for a fresh determination of turnover for the separate seasons. The Sales Tax Tribunal was instructed to reconsider the appeals in light of the court's observations and in accordance with the law.
In conclusion, the revisions were partially allowed, and the Sales Tax Tribunal was directed to re-examine the assessments, considering the issues raised in the judgment and ensuring a proper determination of turnover based on the available evidence.
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1987 (11) TMI 397
Issues Involved:
1. Whether the respondent was a "workman" under the Industrial Disputes Act, 1947.
2. Applicability of the Industrial Disputes Act versus the Rajasthan Shops & Establishments Act, 1958.
3. Repugnancy between the Industrial Disputes Act and the Rajasthan Shops & Establishments Act.
Issue-wise Detailed Analysis:
1. Whether the respondent was a "workman" under the Industrial Disputes Act, 1947:
The main question requiring consideration was whether the respondent was a workman. The definition of "workman" under section 2(s) of the Industrial Disputes Act was pivotal. The definition includes any person employed in any industry to do manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward, but excludes those employed in managerial or administrative capacities or those in supervisory roles drawing wages exceeding Rs. 1600 per month.
The Court referenced multiple precedents to interpret the term "workman." In Mcleod and Co. v. Sixth Industrial Tribunal, it was emphasized that terms like "supervisory," "managerial," and "administrative" should not be conflated. The Court noted that a supervisor need not be a manager or an administrator and that supervision does not necessarily equate to managerial work.
In All India Reserve Bank Employees Association v. Reserve Bank of India, the Court distinguished between clerical and supervisory duties, stating that assigning duties and distributing work constituted supervision. Similarly, in Burmah Shell Oil Storage & Distribution Co. Of India v. Burmah Shell Management Staff Association, it was held that the primary nature of work determines whether an employee is a workman.
Applying these principles, the Court found that the respondent's duties were mainly reporting and checking on behalf of the management, which did not constitute supervisory work. The respondent had no independent authority to make decisions binding on the company. Thus, the Division Bench's conclusion that the respondent was a workman was upheld.
2. Applicability of the Industrial Disputes Act versus the Rajasthan Shops & Establishments Act, 1958:
The next issue was whether the Industrial Disputes Act or the Rajasthan Shops & Establishments Act applied. Section 28A of the Rajasthan Act provides protections against dismissal without reasonable cause and mandates a complaint procedure for dismissed employees. However, Section 37 of the Rajasthan Act states that it does not affect any rights or privileges more favorable to an employee under any other law.
The Court noted that Section 2A of the Industrial Disputes Act, amended in 1965, allows individual workmen to seek redress for disputes. The Rajasthan Act, with its relevant provisions inserted in 1972, is a subsequent law. Under Article 254(2) of the Constitution, if a State law reserved for the President's assent conflicts with an earlier Union law, the State law prevails.
The Court found no conflict between the two Acts as they are supplemental. Both Acts address the rights of dismissed employees but do not conflict in substance. The Industrial Disputes Act does not prescribe a limitation period for raising disputes, unlike the Rajasthan Act, which has a six-month limitation period. The Court held that the Rajasthan Act could not curtail rights under the Industrial Disputes Act, and thus the latter prevailed.
3. Repugnancy between the Industrial Disputes Act and the Rajasthan Shops & Establishments Act:
The issue of repugnancy was addressed by examining whether the two Acts operated in the same field and whether one was inconsistent with the other. The Court cited Deep Chand v. The State of Uttar Pradesh, which outlined tests for inconsistency, including whether one law is intended to be a complete code or if both laws seek to exercise power over the same subject matter.
The Court concluded that while both Acts dealt with employee rights upon dismissal, they were not inconsistent or repugnant. The basic test of repugnancy-where one law's operation negates the other's-was not met. The dismissal under the Rajasthan Act was due to limitation, not on merits, and thus did not conflict with the Industrial Disputes Act's provisions.
Conclusion:
The Supreme Court upheld the Division Bench's decision that the respondent was a workman under the Industrial Disputes Act. It also affirmed that there was no repugnancy between the Industrial Disputes Act and the Rajasthan Shops & Establishments Act. The appeals were dismissed, and the reference before the Tribunal was directed to proceed expeditiously.
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1987 (11) TMI 396
The High Court of Orissa allowed the revision application by defendants 12 to 14 to be transposed as plaintiffs in a suit for partition after the plaintiff's death, as they were bequeathed the share in the property by the deceased plaintiff in a will that has now been probated. The court held that the executor of a deceased person can prosecute the case without waiting for probate under Section 211 of the Succession Act. The Subordinate Judge's rejection of the application was deemed an error, and the petitioners were directed to be transposed as plaintiffs.
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1987 (11) TMI 395
Issues:
1. Application for sale of mortgaged property and appointment of Receiver under Industrial Finance Corporation Act, 1948.
2. Breach of loan agreements leading to the application.
3. Counter-affidavit raising objections under the Sick Industrial Companies (Special Provisions) Act, 1985.
4. Interpretation of Section 30(3) of the Industrial Finance Corporation Act, 1948.
5. Dispute regarding the pending enquiry under Section 16 of the Sick Industrial Companies Act.
6. Legal implications of Section 22 of the Sick Industrial Companies Act on the present proceedings.
Analysis:
1. The judgment pertains to an application by the Industrial Finance Corporation of India under Section 30 of the Industrial Finance Corporation Act, 1948, seeking the sale of mortgaged property and the appointment of a Receiver due to the respondent's breach of loan agreements. The loans were provided for a steel ingots project in U.P., with subsequent defaults leading to the application.
2. The respondent countered, citing the Sick Industrial Companies Act, 1985, and claiming a pending enquiry under Section 16, arguing against further proceedings. The petitioner contended that the breach of agreements and non-payment of loans necessitated relief under Section 30(3) of the Industrial Finance Corporation Act.
3. The court deliberated on the interpretation of Section 30(3) and the mandatory nature of relief in case of breaches. The respondent's objection based on the Sick Industrial Companies Act was analyzed, focusing on the pending enquiry and the discretion of the Board.
4. The court examined the language of Section 16 of the Sick Industrial Companies Act and the significance of the word "may" in the context of inquiries, ultimately emphasizing the mandatory nature of the enquiry once a reference is registered. The court highlighted the Act's objective of salvaging viable companies.
5. Noting Section 22 of the Sick Industrial Companies Act, the court underscored the requirement of Board consent for proceedings like winding up, appointment of a Receiver, or execution against company properties. The court concluded that the circumstances indicated a pending enquiry under Section 16, warranting a halt to the present proceedings.
6. Consequently, the court ruled against granting relief at the current stage, citing the pending enquiry and the need for Board consent as per Section 22. The judgment emphasized the importance of adhering to statutory provisions and the interests of all parties involved.
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1987 (11) TMI 394
Issues Involved:
1. Maintainability of the eviction petition in the absence of a notice to quit.
2. Alleged sub-letting or parting of possession by the appellant-tenant.
3. Validity of sub-letting with the written consent of the landlord.
Summary:
1. Maintainability of the Eviction Petition:
The appellant did not raise the issue of the absence of a notice to quit before the Supreme Court. The High Court and the Rent Control Tribunal had previously dismissed this contention.
2. Alleged Sub-letting or Parting of Possession:
The appellant contended that there was no sub-letting or parting of possession in favor of R.C. Abrol & Company Pvt. Ltd. The Rent Control Tribunal and the High Court found against the appellant on this issue. The Supreme Court noted that the lease deed's Clause 14 prohibited sub-letting without the written permission of the lessor, except for sharing the premises with M/s R.C. Abrol & Co. The Court held that the sub-letting must be with the specific written consent of the landlord, which was not present in this case. The Court referenced several precedents, including South Asia Industries Private Ltd. v. S. Sarup Singh, to support its interpretation that the consent must be specific and in writing.
3. Validity of Sub-letting with Written Consent:
The appellant argued that the requirement for written consent was directory, not mandatory. The Supreme Court disagreed, stating that the written consent requirement served a public purpose to avoid disputes. The Court emphasized that there was no implied permission and that the landlord had objected to the sub-letting upon realization. The Court also rejected the appellant's argument that retaining the key indicated no sub-letting, affirming that legal possession had been transferred to R.C. Abrol & Co. Pvt. Ltd., as evidenced by the company's liquidation proceedings.
Conclusion:
The Supreme Court upheld the High Court's decision, confirming the eviction order. The Court directed that the eviction decree would not be executed before 30.6.1988, provided the appellant complied with specific conditions, including filing an undertaking, paying mesne profits, and not inducting any other person into the premises. The appeal was dismissed.
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1987 (11) TMI 393
Issues Involved:
1. Delay in passing the detention order.
2. Allegation of diverting levy cement for private use.
3. Delay in disposing of the second representation by the Central Government.
4. Non-placement of relevant facts before the detaining authority.
5. Detention order based on a solitary incident (not pressed).
Summary:
1. Delay in Passing the Detention Order:
Mr. Tarkunde, learned counsel for the petitioner, argued that the delay of about five months from the alleged incident on 18.12.1986 to the passing of the detention order on 15.5.1987 vitiates the order. The respondents explained that the detenu was absconding for three months until his arrest on 18.3.1987, and the investigation continued until 13.5.1987. The Court found the delay satisfactorily explained and cited precedents where delays of similar or longer durations were upheld. Thus, the first point was rejected.
2. Allegation of Diverting Levy Cement for Private Use:
Mr. Tarkunde contended that the levy cement being transferred into non-levy cement bags did not belong to Madhava Rao, and the detention order was based on this incorrect assumption. The Court noted that there was sufficient material before the District Magistrate to justify his opinion. The detenu's acceptance of the allegations in his statement u/s 161 of the Code of Criminal Procedure, though not substantive evidence in a criminal case, was considered relevant for preventive detention. The Court emphasized that it is not for them to assess the probative value of the evidence available to the detaining authority and found the second point without merit.
3. Delay in Disposing of the Second Representation by the Central Government:
The second representation filed by the detenu's cousin on 5.6.1987 was disposed of by the Central Government about three months later. The Court held that the duty to exercise the power of revocation u/s 14 of the Act arises only when new and relevant facts come to light, which was not the case here. The Court cited precedents to support that there is no right for the detenu to have successive representations based on the same grounds formally disposed of again. Thus, the third point was rejected.
4. Non-Placement of Relevant Facts Before the Detaining Authority:
The petitioner argued that the retraction of statements by Krishna Murthy and Smt. Mahati Singh and the order granting bail to the detenu were not placed before the detaining authority. The Court found that these individuals had indeed been interrogated by the police, as stated in their applications for anticipatory bail. The Court reiterated that the subjective satisfaction of the detaining authority is not to be questioned by the Court. The Court found that there was ample material for the District Magistrate to base his subjective satisfaction and rejected this point.
5. Detention Order Based on a Solitary Incident:
This point was not pressed by the learned counsel during arguments and was therefore not addressed in detail by the Court. The Court noted that the detaining authority considered the detenu's involvement in multiple contract works for the Railways and found the detention necessary to prevent further subversive acts.
Conclusion:
The Court found no merit in the case for quashing the impugned detention order. Both the writ petition and the special leave application were dismissed.
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1987 (11) TMI 392
Issues:
1. Assessment of tax on H.D.P.E. fabrics as unclassified items at 8%.
2. Exclusion of fabrics from the category of textiles.
3. Interpretation of Section 3-A of the U.P. Sales Tax Act.
4. Classification of H.D.P.E. fabrics as declared goods under Section 14 of the Central Sales Tax Act.
5. Applicability of Section 15 of the Central Sales Tax Act.
6. Jurisdiction of the Court to decide classification of goods.
Detailed Analysis:
1. The petitioners contested the assessment of tax on H.D.P.E. fabrics as unclassified items at 8% by the Sales Tax Officer. The petitioners argued that the fabrics were initially exempt from sales tax under Section 4 of the U.P. Sales Tax Act. Despite the withdrawal of exemption, they contended that the turnover of these fabrics should not be taxed at 8%. The Sales Tax Officer relied on clause (e) of Section 3-A of the U.P. Sales Tax Act for the assessment.
2. The dispute arose due to the exclusion of the fabrics from the category of textiles as per notifications dated January 31, 1985, and June 5, 1985. The petitioners sought relief from the assessment proceedings for the years 1984-85 and 1985-86, which was granted through an interim order by the Court.
3. The Court analyzed Section 3-A of the U.P. Sales Tax Act, emphasizing that the turnover of declared goods is subject to tax at the maximum rate specified in Section 15 of the Central Sales Tax Act. The petitioners argued that H.D.P.E. fabrics should be considered declared goods, limiting the tax rate to 4% as per Section 15.
4. The classification of H.D.P.E. fabrics as declared goods under Section 14 of the Central Sales Tax Act was crucial. The Court referred to previous cases and departmental interpretations to determine the classification of fabrics impregnated with cellulose derivatives or artificial plastic materials. The Court concluded that if H.D.P.E. fabrics fell under Item No. 22, they should be treated as declared goods.
5. The Court highlighted the importance of Section 15 of the Central Sales Tax Act, which restricts the tax rate on declared goods to a maximum of 4%. The petitioners argued that the turnover of H.D.P.E. fabrics should be taxed under clause (a) of Section 3-A (1) of the U.P. Sales Tax Act, not under clause (e) as determined by the Sales Tax Officer.
6. The Court asserted its jurisdiction to decide the classification of goods, stating that when the nature of an article is undisputed, the Court can determine its category to avoid prolonged litigation. Citing previous judgments, the Court justified its intervention in deciding whether H.D.P.E. fabrics should be taxed under a specific provision of the sales tax law.
In conclusion, the Court held that H.D.P.E. fabrics should be taxed under clause (a) of Section 3-A (1) of the U.P. Sales Tax Act as declared goods, limiting the tax rate to 4%. The petition was allowed, and the matter was remanded to the Sales Tax authorities for further proceedings in accordance with the Court's decision.
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1987 (11) TMI 391
Issues Involved:
1. Constitutional validity of the Bihar Non-Government Secondary Schools (taking over of Management and Control) Act, 1981.
2. Alleged violation of Article 30(1) of the Constitution.
3. Specific provisions of the Act, particularly Sections 3 and 18, and their impact on minority rights.
Issue-wise Detailed Analysis:
1. Constitutional Validity of the Bihar Non-Government Secondary Schools (taking over of Management and Control) Act, 1981:
The petitioners challenged the Act's constitutional validity under Article 32 of the Constitution, arguing it violated Article 30. The Act was enacted to take over the management and control of non-government secondary schools in Bihar for better organization and development of secondary education. The Act's preamble and various sections, including Sections 3 and 18, lay out the framework for this takeover.
2. Alleged Violation of Article 30(1) of the Constitution:
The petitioners, representing a Christian minority society, argued that the Act infringed on their fundamental right under Article 30(1) to establish and administer educational institutions of their choice. They contended that Sections 3 and 18 of the Act made a serious inroad on this right. The State, however, argued that the Act aimed to ensure academic excellence and good management without infringing on minority rights.
3. Specific Provisions of the Act:
Section 3:
- Subsection (1): Automatically takes over non-government secondary schools except minority, proprietary, centrally sponsored, and autonomous schools as of October 2, 1980.
- Subsection (2): Allows voluntary takeover of minority schools if the management offers an unconditional handover.
- Subsection (3): Provides for the takeover of unrecognized schools if they meet certain conditions within three years.
The Court held that Section 3(1) does not affect minority schools. Section 3(2) does not confer compulsory takeover power but allows voluntary handover, thus not infringing on minority rights. Section 3(3) pertains to unrecognized schools and does not affect minority institutions.
Section 18:
- Subsection (1): Ensures continuity of recognition for previously declared minority schools.
- Subsection (2): Allows for future recognition of minority schools established to meet educational and cultural needs, provided they fulfill prescribed conditions.
- Subsection (3): Lists conditions for managing and controlling recognized minority schools (clauses a to k).
Detailed Analysis of Clauses (a) to (k) of Section 18(3):
- Clause (a): Requires a managing committee registered under the Societies Registration Act with written bye-laws. This is in the interest of efficient administration and does not interfere with minority rights.
- Clause (b): Requires appointment of qualified teachers with the concurrence of the School Service Board, ensuring educational standards without prior approval interference.
- Clause (c): Mandates rules for service conditions based on natural justice and prevailing law, promoting fair administration.
- Clause (d): Requires School Service Board approval for disciplinary actions, ensuring actions conform to rules framed by the minority institution itself.
- Clause (e): Prohibits the appointment of mentally and physically incapacitated persons, ensuring the institution's efficiency.
- Clause (f): States no grant for salaries beyond 58 years of age, aligning with the State's superannuation policy without restricting the management's right to retain employees.
- Clause (g): Regulates fees charged, requiring State approval for higher fees, ensuring affordability and consistency with State policy.
- Clause (h): Allows inspection by authorized officers, ensuring proper use of public funds and maintaining health standards.
- Clause (i): Requires compliance with State instructions on various administrative aspects, provided they do not interfere with minority rights.
- Clauses (j) and (k): Allow the State to issue instructions for efficient management and educational standards, with the right to challenge arbitrary actions by the State.
The Court concluded that these provisions are regulatory, aimed at ensuring educational excellence and efficient administration, without infringing on the fundamental rights of minority institutions. The Act does not compel minority institutions to surrender their management rights but ensures they operate within a framework that promotes educational standards and fair administration.
Conclusion:
The Court held that the Bihar Non-Government Secondary Schools (taking over of Management and Control) Act, 1981, does not violate the petitioners' rights under Article 30(1) of the Constitution. The regulatory provisions of Sections 3 and 18 are designed to ensure educational excellence and efficient administration without infringing on the fundamental rights of minority institutions. The petitions were dismissed without any order as to costs.
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1987 (11) TMI 390
Issues Involved:
1. Correctness of the principles applied to test the identification evidence.
2. Credibility of the eye-witnesses' identification of the appellants.
3. Impact of the delay in conducting the test identification parade.
4. Reliability of the identification evidence in the context of the dacoity occurring at night.
Issue-wise Detailed Analysis:
1. Correctness of the principles applied to test the identification evidence:
The judgment scrutinizes the principles applied to test the identification evidence, focusing on whether the identification parade was conducted appropriately and whether the delay in conducting it affected its reliability. The Court emphasizes that the value of test identification depends on the promptitude in putting up the accused for identification. The delay of nearly four months in this case, with no explanation, detracts from the credibility of the test identification.
2. Credibility of the eye-witnesses' identification of the appellants:
The appellants argued that the eye-witnesses had prior familiarity with them, given their proximity to the crime scene and shared educational background. The Court noted that Kamla Prasad (PW 1) could reasonably be expected to have known some of the appellants, as they were residents of nearby villages and students of the same institution. The omission to disclose their identity in the FIR raised reasonable doubt about their complicity in the crime. The Court cited previous judgments, emphasizing that the identification of the accused by witnesses who had seen them before but did not name them in the FIR casts doubt on the prosecution's case.
3. Impact of the delay in conducting the test identification parade:
The Court highlighted that the unexplained delay of nearly four months in conducting the test identification parade significantly impacted its reliability. The Court referred to established legal principles, stating that the promptitude of the identification parade is crucial for its credibility. The delay in this case, without any justification, undermined the reliability of the identification evidence. The Court cited previous cases where delays in holding identification parades had led to acquittals, emphasizing that the benefit of such delays must go to the appellants.
4. Reliability of the identification evidence in the context of the dacoity occurring at night:
The Court emphasized the need for careful scrutiny of identification evidence in cases of crimes occurring in the darkness of the night. The Court noted that the emotional disturbance of the witnesses during the crime could distort their powers of perception, making their identification untrustworthy. The Court cited legal literature and previous judgments, highlighting the potential for errors in identification and the need for corroboration through test identification. The Court concluded that the identification evidence in this case lacked the requisite element of reassurance to support the conviction, given the delay and the circumstances of the crime.
Conclusion:
The appeals were allowed, and the conviction and sentence of the appellants were set aside due to the lack of promptitude in conducting the test identification parade and the resulting reasonable doubt about the reliability of the identification evidence. The Court also set aside the conviction and sentence of the non-appealing accused, Pheku Singh, as the findings were inter-dependent and inextricably integrated. The appellants and Pheku Singh were directed to be set at liberty forthwith.
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1987 (11) TMI 389
Issues:
1. Interpretation of provisions under U.P. Temporary Control of Rent and Eviction Act, 1947 and U.P. Urban Buildings Act, 1972.
2. Validity of filing a second application for eviction after the dismissal of the first suit.
3. Jurisdiction of the High Court under Article 226 of the Constitution in setting aside orders.
Analysis:
Issue 1:
The case involved the interpretation of provisions under the U.P. Temporary Control of Rent and Eviction Act, 1947, and the U.P. Urban Buildings Act, 1972. The respondent obtained permission under the old Act, and later filed an application for eviction under section 43(2)(rr) of the New Act. The High Court determined that the landlord had the right to file the second application under the amended provision, which allowed for enforcement of previously obtained permissions without the need for a new suit. The Court held that the permission obtained was still valid despite the dismissal of the first suit on technical grounds.
Issue 2:
The central issue was whether the landlord had the right to file a second application for eviction after the dismissal of the initial suit based on the permission obtained under the old Act. The Prescribed Authority initially rejected the application under section 43(2)(rr) on the grounds that the permission had been exhausted. However, the High Court overturned this decision, emphasizing that the purpose of the permission was not fulfilled with the dismissal of the first suit and that subsequent action was not precluded if the first suit was not decided on its merits.
Issue 3:
Regarding the jurisdiction of the High Court under Article 226 of the Constitution, the Court addressed a technical breach in the appeal process. The High Court set aside the order of the Prescribed Authority, even though technically no appeal lay before the District Judge. The Supreme Court acknowledged this technical breach but upheld the decision of the High Court, emphasizing that justice had been served by setting aside the improper order of the Prescribed Authority. The Court declined to interfere under Article 136 of the Constitution, concluding that the appeal must fail, with no order as to costs.
In conclusion, the Supreme Court dismissed the appeal, affirming the decision of the High Court regarding the landlord's right to file a second application for eviction under the amended provision of the New Act. The Court upheld the validity of the permission obtained under the old Act and emphasized the importance of finality in judicial proceedings.
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1987 (11) TMI 388
The High Court of Allahabad granted a certificate under Section 4-A of the U.P. Sales Tax Act to M/s Mahalaxmi Roller Flour Mills for a 5-year period ending March 31, 1988. The court quashed a notice for assessment issued by the Sales Tax Officer and restrained further proceedings as long as the certificate is valid. The court emphasized that no assessment can be made during the validity of the certificate, although authorities can cancel or modify it.
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1987 (11) TMI 387
The High Court of Allahabad granted M/s Maxims Delicacies (Private) Limited exemption from sales tax for five years starting from August 17, 1983. Despite the certificate, the Sales Tax Officer issued notices for tax assessment. The court held that during the certificate's validity, no assessment could be made. The notices were quashed, and the Sales Tax Officer was restrained from further assessment. The case was disposed of with costs on parties.
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