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1998 (11) TMI 703
Issues Involved:
1. Whether the Tahsildar could declare respondent No. 1 as a tenant under the Bombay Tenancy and Agriculture Lands (Vidarbha Region) Act, 1938, after a compromise had been reached and his name was deleted from the list of tenants.
2. The validity of the compromise agreement and whether it was entered under pressure or allurement.
3. The applicability of the principles of estoppel and res judicata in the proceedings under the Act.
4. The scope of the Tahsildar's suo motu powers under Section 49B of the Act.
5. Whether respondent No. 1 could be deemed a tenant under Section 6 of the Act.
Issue-wise Detailed Analysis:
1. Declaration of Tenancy by Tahsildar:
The central issue was whether the Tahsildar could, after 11 years, declare respondent No. 1 a tenant under the Act, despite an earlier compromise where respondent No. 1 admitted he was not a tenant and his name was deleted from the list of tenants. The court found that the initial proceedings under Section 8(3) had conclusively determined that respondent No. 1 was not a tenant, and this decision was not appealed, thus becoming final. The Tahsildar's later suo motu action under Section 49B was deemed inappropriate as there was no new material to justify reopening the case.
2. Validity of the Compromise Agreement:
The Special Deputy Collector had previously overturned the Tahsildar's decision by claiming that the compromise was made under pressure and allurement. However, the Supreme Court noted that there was no pleading or evidence to support this claim, and the compromise had been acted upon by both parties, with respondent No. 1 purchasing land from the appellants. The court concluded that the compromise was valid and binding.
3. Principles of Estoppel and Res Judicata:
The court emphasized that even if the strict doctrine of res judicata did not apply, the principles underlying it, including estoppel, would prevent respondent No. 1 from contesting the issue of tenancy again. Since the issue had been conclusively decided in earlier proceedings under the same Act, it could not be reopened in subsequent proceedings.
4. Scope of Tahsildar's Suo Motu Powers:
The court clarified that the Tahsildar's suo motu powers under Section 49B must be exercised with caution and based on substantial material evidence. The Tahsildar cannot arbitrarily reopen cases without new evidence or justification, especially when a previous order under the same statute had resolved the issue. The court found that the Tahsildar had no jurisdiction to initiate proceedings under Section 49B in this case, as the earlier order deleting respondent No. 1's name was final.
5. Deemed Tenancy under Section 6:
Respondent No. 1's claim to be a deemed tenant under Section 6 was rejected. The court noted that the appellants had been cultivating the land personally or through their Saldars, including respondent No. 1 and his father, who were servants, not tenants. Thus, respondent No. 1 could not be considered a deemed tenant as per the statutory definition, which excludes those cultivating land on behalf of the owner.
Conclusion:
The Supreme Court set aside the decisions of the appellate and revisional authorities, as well as the High Court, which had erroneously concluded in favor of respondent No. 1. The court quashed the findings against the appellants in the proceedings under Section 49B, emphasizing the finality of the earlier decision under Section 8 and the improper exercise of suo motu powers by the Tahsildar. The appeal was allowed, with costs on the parties.
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1998 (11) TMI 702
The Appellate Tribunal CEGAT New Delhi considered a case regarding claiming Modvat for 'evaporation boats'. The Department denied the claim, stating the items were capital goods, not inputs. The Tribunal found that the items were eligible for Modvat under Rule 57Q. The Tribunal allowed the appellant's prayer for waiver of pre-deposit.
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1998 (11) TMI 701
Issues Involved:
1. Default in payment of rent.
2. Acts of waste causing damage to the building.
3. Acts of nuisance to other occupants.
Detailed Analysis:
1. Default in Payment of Rent:
The respondents claimed that the appellant defaulted in paying rent from 1.11.1986 to 30.4.1986, asserting that the rent was increased from Rs. 250/- to Rs. 650/- per month from 1.11.1985. The appellant denied this, maintaining that the rent remained Rs. 250/- per month and was paid without default till March 1988. The Rent Control Court and the Appellate Authority both found in favor of the appellant, concluding that the claim of increased rent was an afterthought, supported by the absence of any mention of the increased rent in the landlords' earlier communications and tax returns. The High Court, however, overturned these findings without thoroughly considering the evidence, merely stating that the lower courts ignored the evidence warranting the conclusion that the tenant was a defaulter.
2. Acts of Waste Causing Damage to the Building:
The respondents alleged that the appellant caused damage to the building by making holes in the flooring and leaving spaces between the shutter and the wall. Both the Rent Control Court and the Appellate Authority found these damages to be trivial and not impairing the building's value or utility materially. The High Court, however, substituted its findings for those of the lower courts, concluding that the tenant caused damage based on the advocate-commissioner's report. The Supreme Court noted that the High Court overstepped its limited supervisory jurisdiction by making such a substitution.
3. Acts of Nuisance to Other Occupants:
The respondents claimed that the appellant's business operations caused nuisance to other occupants by running machines late at night and quarreling with landlords during rent collection. The Rent Control Court and the Appellate Authority found no substantial evidence of nuisance, considering that the machinery had been in operation since 1970 without prior complaints. The High Court, however, found that the tenant caused nuisance, again without adequately addressing the detailed reasoning of the lower courts. The Supreme Court emphasized that for an act to constitute actionable nuisance, it must be substantial and not merely trivial or evanescent.
Conclusion:
The Supreme Court concluded that the High Court exceeded its revisional jurisdiction by overturning the concurrent findings of the Rent Control Court and the Appellate Authority on all three grounds without sufficient justification. The Supreme Court allowed the appeal, setting aside the High Court's judgment and reinstating the decisions of the lower courts.
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1998 (11) TMI 700
Issues:
1. Whether the petitioners can be charged under sections 7 and 8 of the Kerala Gaming Act for playing cards in a private building.
Analysis:
The petitioners, including a fish-monger and others engaged in fishing, were charged under sections 7 and 8 of the Kerala Gaming Act for playing cards in a private building belonging to the first petitioner. The key contention raised by the petitioners' counsel was that the provisions of sections 7 and 8 of the Act do not apply to the facts of the case since the building in question was a private property and not a common gaming house as required by the Act.
The relevant sections of the Kerala Gaming Act, specifically sections 7 and 8, were examined by the court. Section 7 pertains to penalties for operating a common gaming house, while section 8 deals with penalties for being found gaming in a common gaming house. The definition of a common gaming house under section 2(a) was crucial in determining the applicability of the Act to the case. The court highlighted that for the provisions of sections 7 and 8 to be invoked, the existence of a common gaming house is a prerequisite.
The court referred to a previous judgment in Kunhikannan v. Assistant Sub Inspector of Police, 1985 KLT 484, which emphasized that gaming in a private building or place is not an offense under the Act unless it is a common gaming house. The judgment clarified that the term "common gaming house" implies a place frequently used for gambling activities, and the Act aims to prevent public nuisance associated with such places.
In the present case, the court noted that the building where the petitioners were playing cards belonged to the first petitioner and was a private property. The court observed that there was no mention of the building being a common gaming house in the first information report. The prosecution did not allege that the petitioners were involved in gaming activities in a common gaming house. Consequently, the court concluded that since the petitioners were playing cards for profit in a private building, not designated as a common gaming house, their actions did not constitute an offense under sections 7 and 8 of the Act.
In the final judgment, the court decided to quash Annexures-A1 and A2 in the case, thereby allowing the Criminal Miscellaneous Case filed by the petitioners. The court's decision was based on the lack of evidence supporting the charge of gaming in a common gaming house, as required by the Kerala Gaming Act.
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1998 (11) TMI 699
Issues:
- Appeal against judgment and sentence passed in CC No. 329 of 1991
- Criminal Revision Case filed by the complainant on the adequacy of the sentence passed
Analysis:
1. The Criminal Appeal was filed by the accused against the judgment and sentence passed in CC No. 329 of 1991. The complainant filed a Criminal Revision Case stating that the sentence passed was inadequate.
2. The complaint involved the issuance of a cheque by the accused in favor of the complainant, which was subsequently dishonored due to insufficient funds. The complainant demanded payment, leading to the filing of the complaint under Section 138 of the Negotiable Instruments Act.
3. The prosecution presented evidence, including witnesses and documents, to prove the case. The lower court found the accused guilty under Section 138 and sentenced the accused to imprisonment and a fine.
4. The defense argued that an agreement (Ex.D1) was made between the parties for payment in installments, which was acknowledged by the complainant. This agreement altered the terms of the initial cheque payment (Ex.P1) and should be considered in the case.
5. The court considered the evidence presented, including the terms of Ex.D1 and the actions of the parties following its execution. It was noted that the complainant had agreed to receive payment in installments, which contradicted the basis of the complaint under Section 138.
6. The court concluded that since the complainant had agreed to installment payments as per Ex.D1, the accused could not be held liable under Section 138 of the Negotiable Instruments Act based on the initial dishonored cheque (Ex.P1). Therefore, the judgment and sentence of the lower court were set aside, and the appeal was allowed.
7. As a result of the decision in the Criminal Appeal, the Criminal Revision Case filed by the complainant on the adequacy of the sentence was dismissed. The court found that no case was made out against the accused under Section 138 of the Negotiable Instruments Act based on the circumstances and agreements between the parties.
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1998 (11) TMI 698
Issues:
1. Upholding of the order of dismissal by the High Court
2. Modification of the penalty by the Gujarat Secondary Education Tribunal
3. Applicability of extenuating factors in determining the punishment
4. Jurisdiction of the Tribunal in substituting the order of dismissal
5. Review of penalty imposition by the High Court
6. Comparison with previous legal precedents
7. Violation of Article 14 in penalty imposition
Analysis:
1. The appeal stemmed from a High Court judgment upholding the order of the Gujarat Secondary Education Tribunal, which modified the penalty imposed on respondent No. 1 from dismissal to stoppage of two increments with future effect. The Tribunal found the charges proved but opted for a lenient view due to extenuating circumstances.
2. The Tribunal's decision was based on factors such as the delay in pay fixation, the handling of the service book, and the age of the respondent. However, the appellants argued that the Tribunal exceeded its jurisdiction by substituting dismissal with a milder penalty, and the High Court concurred that the penalty was disproportionate, increasing it to two increments.
3. The Supreme Court reviewed the case in light of previous judgments and emphasized the seriousness of the respondent's actions, including forgery and dishonesty. The Court found no justification for the Tribunal's leniency based on the respondent's financial status or age, as the gravity of the misconduct warranted dismissal.
4. The Court highlighted that the punishment should align with the severity of the offense, rejecting the argument that dismissal was too harsh considering the lack of financial gain for the respondent. The Court emphasized the importance of maintaining integrity, especially for a teacher, and dismissed the notion that the penalty violated Article 14.
5. Ultimately, the Supreme Court allowed the appeal, overturning the judgments of both the High Court and the Tribunal, and dismissing the application filed by respondent No. 1. The Court reinstated the original order of dismissal, emphasizing the gravity of the misconduct and the need for appropriate consequences.
This detailed analysis showcases the progression of the case from the Tribunal to the High Court and finally to the Supreme Court, focusing on the key legal principles and precedents applied in determining the appropriate penalty for the misconduct committed by the respondent.
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1998 (11) TMI 697
Issues Involved:
1. 136.17 acres as rested tea area (disallowed by the High Court).
2. 421.88 acres as Cardamom plantation and 302.13 acres as other agricultural land interspersed with other plantation crops (disallowed by the High Court).
3. 263.63 acres as other agricultural lands interspersed with cardamom crops (remanded by the High Court).
Detailed Analysis:
1. 136.17 Acres as Rested Tea Area:
The appellant claimed that the 136.17 acres of land should be exempted as a "rested tea area," which is part of the tea plantation. The Taluk Land Board initially agreed with this claim based on local inspection and affidavits, but the High Court set aside this decision, aligning with the Supreme Court's earlier ruling that the "rested tea area" was not eligible for exemption. The Supreme Court upheld the High Court's decision, citing the principles of res judicata and estoppel, which prevent re-litigation of the same issue.
2. 421.88 Acres as Cardamom Plantation and 302.13 Acres as Other Agricultural Land Interspersed:
The appellant argued that out of 924.01 acres claimed as a fuel area, 421.88 acres contained cardamom plantations existing prior to 1964, and 302.13 acres were other agricultural lands interspersed with plantation crops. The Taluk Land Board initially exempted the entire 924.01 acres, but the High Court disallowed this, stating that the appellant had not claimed cardamom plantation in the original return and thus could not seek exemption on this basis. The Supreme Court agreed with the High Court, emphasizing that the appellant never claimed exemption for cardamom plantation in the original proceedings, and therefore, the claim could not be re-opened.
3. 263.63 Acres as Other Agricultural Lands Interspersed with Cardamom Crops:
The High Court remanded the issue of 263.63 acres of agricultural lands interspersed with cardamom crops to the Taluk Land Board for re-determination. The Supreme Court, however, found that the Taluk Land Board had already determined this area as necessary for the protection and efficient management of the plantation crops, and there was no need for further guidelines or remand. The Supreme Court set aside the High Court's order to remand this matter, affirming the Taluk Land Board's decision.
Additional Observations:
The Supreme Court noted that the principles of res judicata and estoppel, which are based on public policy and justice, prevent re-litigation of issues that have already been decided. The Court also mentioned that the appellant could approach the State Government to seek exemption under Sub-section 3 of Section 81 of the Kerala Land Reforms Act, particularly in light of a later decision by a three-judge bench of the Supreme Court, which held that the supply of fuel wood to employees is connected with the plantation.
Conclusion:
The appeal was partly allowed. The Supreme Court upheld the High Court's decision regarding the "fuel area" and "rested tea area" but set aside the High Court's remand order concerning the 263.63 acres of agricultural lands interspersed with plantation crops. The appellant was granted six weeks to apply to the State Government for exemption under Sub-section 3 of Section 81 of the Act.
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1998 (11) TMI 696
Issues Involved:
1. Impugning SEBI's order prohibiting fresh business by stock brokers.
2. Intervention by Shri Jasmin B. Shah.
3. Challenge to the vires of Sections 11 and 11B of the SEBI Act, 1992.
4. Allegation of violation of natural justice.
5. Authority of SEBI Chairman to issue the impugned order.
6. Availability of alternative remedy of appeal.
7. Interim reliefs sought by petitioners.
Detailed Analysis:
1. Impugning SEBI's Order Prohibiting Fresh Business by Stock Brokers:
The petitioners challenged SEBI's order dated October 30, 1998, which directed them not to undertake any fresh business as brokers until the completion of inquiry proceedings under regulation 28 of the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992, and regulation 13 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Markets) Regulations, 1995. The order was to come into effect from November 2, 1998.
2. Intervention by Shri Jasmin B. Shah:
A chamber summons was filed by Shri Jasmin B. Shah seeking intervention in the petitions and permission to make submissions on the merits of the case. The court granted leave for intervention under Rule 121 of the High Court, Original Side Rules, allowing the intervener to make submissions on the merits of the case.
3. Challenge to the Vires of Sections 11 and 11B of the SEBI Act, 1992:
The petitioners raised a challenge to the vires of Sections 11 and 11B of the SEBI Act, 1992. The court issued a rule and directed notice to be issued to the Attorney-General of India.
4. Allegation of Violation of Natural Justice:
The petitioners contended that the SEBI order was passed without notice and without offering a reasonable opportunity to be heard, violating the principles of natural justice. They argued that the order deprived them of their fundamental right to carry on business without following the procedure provided under the SEBI Regulations, 1992, thus contravening Articles 19, 21, and 14 of the Constitution.
5. Authority of SEBI Chairman to Issue the Impugned Order:
The petitioners argued that the impugned order was issued by the SEBI Chairman and not by the Board, as required by Section 11B of the SEBI Act. The court noted that Section 4(3) of the SEBI Act provides that the chairman may exercise all powers and do all acts and things which may be exercised or done by the Board. Additionally, Section 19 allows the Board to delegate its powers to the chairman. The court found that the Board had delegated its powers to the chairman, thus justifying the chairman's action.
6. Availability of Alternative Remedy of Appeal:
The respondents argued that the petitioners had an alternative and efficacious remedy of appeal under Section 20 of the Act and regulation 32 of the SEBI Regulations. The court held that the availability of an alternative remedy does not oust the exercise of writ jurisdiction and that the petitioners were justified in moving the court due to the urgency of the matter.
7. Interim Reliefs Sought by Petitioners:
The court found that the petitioners failed to make out a prima facie case for interim reliefs. The court held that the impugned order was an interim measure justified under Section 11B of the SEBI Act, intended to protect the interests of investors and maintain the integrity of the market. The court vacated the ad interim orders passed on November 1 and November 3, 1998, but allowed the petitioners to trade in shares and securities other than BPL, Videocon, Sterlite, and Nedungadi Bank Ltd. for a period of four weeks.
Conclusion:
The court upheld SEBI's order prohibiting the petitioners from undertaking fresh business as brokers, finding it justified as an interim measure under Section 11B of the SEBI Act. The court allowed intervention by Shri Jasmin B. Shah and issued a rule regarding the challenge to the vires of Sections 11 and 11B of the SEBI Act. The court found no violation of natural justice and confirmed the authority of the SEBI Chairman to issue the impugned order. The availability of an alternative remedy did not preclude the exercise of writ jurisdiction. The petitioners were granted limited interim relief to trade in certain shares and securities for four weeks.
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1998 (11) TMI 695
Title: Supreme Court of India Judgment 1998 (11) TMI 695 - SC
Judges: Mr. K. Venkataswami and Mr. M. Jagannadha Rao
Decision: Appeal dismissed.
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1998 (11) TMI 694
Issues:
Challenge of illegal detention under Article 226 of the Constitution based on violation of clauses in Essential Commodities Order, 1981. Grounds of detention, representation to State and Central Government, alleged violation of Article 14 of the Constitution.
Analysis:
1. The petitioner challenged their detention under Article 226 of the Constitution, citing violation of the Essential Commodities Order, 1981. The detention was based on alleged involvement in black marketing of kerosene, contrary to the fixed price. The petitioner worked as a salesman for a shop owner who held the license to sell kerosene. The detention order implicated collusion between the petitioner and the shop owner in selling kerosene in the black market.
2. The petitioner raised two main grounds in their challenge. First, they argued that the detention was violative of Article 14 of the Constitution, as the shop owner's detention was set aside based on similar facts and offenses. Second, the petitioner claimed that their representation to the Central Government was not considered, rendering the detention illegal.
3. The Court found no merit in the delay claim regarding the Central Government's consideration of the petitioner's representation. The State Government promptly rejected the representation, and the Central Government followed suit after due process. The Court emphasized that the identical grounds in the representations to the State and Central Governments did not affect the legality of the detention.
4. Regarding the first ground, the Court noted that the petitioner's role as a salesman under the shop owner was crucial. Despite attempts to distinguish the cases based on the shop owner's absence during a raid, the Court found no evidence that the shop owner had instructed the petitioner against black marketing. As the shop owner's detention was set aside, the Court deemed the detention of the petitioner a violation of Article 14.
5. Citing precedents from other High Courts, the Court highlighted the arbitrary nature of detaining one individual while releasing others involved in the same offense. The Court emphasized the importance of consistency in preventive detention cases to uphold constitutional principles.
6. Ultimately, the Court ruled in favor of the petitioner, quashing the detention order due to the clear violation of Article 14. The petitioner was ordered to be released, unless required in another criminal case, based on the unequal treatment compared to the shop owner whose detention was set aside.
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1998 (11) TMI 693
Issues Involved:
1. Challenge to the nomination of Ramachandra Mohapatra as President of the Governing Body.
2. Definition and qualifications of an "eminent educationist."
3. Allegations against Ramachandra Mohapatra and their impact on his nomination.
4. Legal provisions and procedural aspects of nomination under the Orissa Education Rules.
Detailed Analysis:
1. Challenge to the Nomination of Ramachandra Mohapatra:
The nomination of Ramachandra Mohapatra as President of the Governing Body of Ramamani Mahavidyalaya, Kantabad, was challenged under Rule 27 of the Orissa Education Rules, 1991. The main contention was that Ramachandra Mohapatra did not qualify as an "eminent educationist," which is a sine qua non for such nomination.
2. Definition and Qualifications of an "Eminent Educationist":
The term "eminent educationist" has not been explicitly defined in the Rules. The court referred to various dictionaries and previous judgments to interpret the term. An educationist is generally understood to be someone skilled in the methods of education and teaching, or one who promotes education. The court noted that the expression "eminent educationist" was conceptually different from "person interested in the field of education," which was the requirement in the old Rules. The importance of education and the role of an educationist were elaborated through references to judicial decisions and literary works, emphasizing the need for qualified and respectable individuals in educational governance.
3. Allegations Against Ramachandra Mohapatra:
The petitioners alleged that Ramachandra Mohapatra had only studied up to Class VII and had no significant contributions to the field of education. Moreover, he was involved in serious criminal cases, including an alleged attempt to commit rape. Despite being served notice, Ramachandra Mohapatra did not contest these allegations, leaving them unrefuted. The court acknowledged that false cases might be foisted due to political or personal rivalries but emphasized that the nomination should steer clear of controversies and ensure the academic atmosphere of the institution.
4. Legal Provisions and Procedural Aspects of Nomination:
The court examined Rule 27 of the Orissa Education Rules, which outlines the composition and nomination process for the Governing Body of aided higher secondary schools. The rule allows the government to nominate an eminent educationist as President. Rule 29(c) disqualifies a person from being a member of the Governing Body if convicted of an offense involving moral turpitude. Since the criminal proceedings against Ramachandra Mohapatra were still sub judice, his removal was not mandated. However, the court found that the nomination process did not adequately consider the qualifications and suitability of the nominee, as there was no substantial discussion or material on record to support the conclusion that Ramachandra Mohapatra was an eminent educationist.
Conclusion:
The court quashed the order dated 21-11-1997 nominating Ramachandra Mohapatra as President of the Governing Body, citing the lack of consideration of relevant aspects and the potential negative impact on the institution's educational atmosphere. The judgment underscored the importance of nominating qualified and respectable individuals to educational governance positions to maintain the integrity and academic environment of educational institutions.
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1998 (11) TMI 692
Issues:
1. Whether the difference between deductions made from the salary income of officers of a public sector bank due to residential accommodation provided by the bank and 10% of the salary constitutes a perquisite under section 17(2) of the IT Act.
Analysis:
The petitioner, an association of officers of a nationalized bank, sought a mandamus to prevent the Chief CIT and the CWT, as well as their employer, from treating the mentioned difference as a perquisite under the IT Act. The affidavit filed lacked factual details, focusing more on legal arguments without a factual foundation.
The counsel for the employer bank argued that when the employer owns the accommodation provided to its officers, the employer's determination of the rent rate cannot be considered concessional. However, in cases where the employer hires accommodation and provides it to the employee at a lower rate than what the employer pays, the difference constitutes a concession and a perquisite under section 17(2) of the IT Act.
Section 17(2) of the IT Act defines perquisite inclusively, covering rent-free accommodation and concessions in rent. The valuation of such perquisites is governed by Rule 3 of the IT Rules. The judgment emphasizes that employers providing housing to employees as a welfare measure is common practice and that not all provided accommodations are necessarily owned by the employer.
The judgment highlights that employers offering accommodations to employees do so for employee welfare, not solely for profit. The difference between market rent and the rate charged to employees for employer-owned accommodation should not be treated as a perquisite. The judgment also notes the absence of a defined term for "concessional" in the rules and the need for factual verification by the AO.
The court ruled that the petitioner's declaration cannot be granted due to lack of factual particulars in the affidavit. However, members of the petitioner association can present relevant facts to the AO when required. The judgment reserves the right for the association to collectively represent to the CBDT, which will consider the matter lawfully. The writ petition was disposed of with no costs incurred.
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1998 (11) TMI 691
Issues Involved:
1. Classification of animal feed supplements under Heading 23.02 or 29.36 of the Central Excise Tariff Act, 1985 (CETA 1985).
2. Interpretation of the term "includes" in Chapter Note 1 of Chapter 23.
3. Applicability of technical literature, expert opinions, and trade understanding in determining classification.
4. Relevance of previous judgments and Board's Circulars in classification.
5. Classification of Niger Seed and Rice Bran Extractions under the Export Tariff.
Issue-wise Detailed Analysis:
1. Classification of Animal Feed Supplements:
The primary issue was whether preparations used in animal feeding, containing vitamins and other ingredients, should be classified under Heading 23.02 or 29.36 of CETA 1985. The Tribunal noted that Heading 23.02 corresponds to Heading 23.09 of the Harmonized System of Nomenclature (HSN), which includes preparations used in animal feeding, such as complete feeds, supplementary feeds, and premixes containing vitamins, minerals, and other substances. The Tribunal concluded that these preparations, even if containing synthetic materials, fall under Heading 23.02, provided they are known and used as animal feed supplements in trade.
2. Interpretation of the Term "Includes":
The term "includes" in Chapter Note 1 of Chapter 23 was debated extensively. The Tribunal held that "includes" is used to extend the scope of the chapter, covering preparations not confined to those obtained by processing vegetable or animal materials. This interpretation aligns with the explanatory notes under Heading 23.09 of HSN, which encompass preparations containing synthetic materials.
3. Applicability of Technical Literature, Expert Opinions, and Trade Understanding:
Technical literature, expert opinions, and affidavits from users and dealers were considered crucial in determining the classification. The Tribunal emphasized that the meaning of terms in the tariff should be understood as they are in trade and commerce. The preparations in question were identified as animal feed supplements based on their use, labels, and expert testimonies, supporting their classification under Heading 23.02.
4. Relevance of Previous Judgments and Board's Circulars:
Previous judgments, such as those by the Hon'ble Gujarat High Court in Glaxo Laboratories and the Hon'ble Bombay High Court in Glindia Limited, were cited to support the view that animal feed supplements are included under animal feed. The Tribunal also referred to the Supreme Court's decision in Sun Exports Corporation, which held that animal feed supplements are covered under the generic term "animal feed." Board's Circulars, including Circular No. 1/90 and Circular No. 188/22/96-CX, were examined, with the latter clarifying that preparations containing active substances along with carriers fall under Heading 23.02.
5. Classification of Niger Seed and Rice Bran Extractions:
The Tribunal also addressed the classification of Niger Seed and Rice Bran Extractions under the Export Tariff. It was held that these items are ingredients of animal feed and are correctly classifiable under Heading 21 of the Second Schedule (Export Tariff). The Tribunal relied on technical literature and judicial pronouncements to conclude that these extractions are animal feed.
Conclusion:
The Tribunal concluded that preparations used in animal feeding, containing vitamins and other ingredients, are classifiable under Heading 23.02 of CETA 1985. The term "includes" in Chapter Note 1 of Chapter 23 extends the scope to cover preparations with synthetic materials. Technical literature, expert opinions, and trade understanding play a significant role in classification. Previous judgments and Board's Circulars support the view that animal feed supplements fall under Heading 23.02. Niger Seed and Rice Bran Extractions are classified under Heading 21 of the Export Tariff as animal feed. The files were directed to respective Benches for passing appropriate orders on other issues, if any.
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1998 (11) TMI 690
Supreme Court dismissed the appeal in the case of Mrs. Sujata V. Manohar and Mr. Justice G.B. Pattanaik.
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1998 (11) TMI 689
Issues Involved:
1. Validity of the lease determination of Avtar Singh.
2. Denial of natural justice and personal hearing to Avtar Singh.
3. Maintainability of the writ petition after dismissal of the Special Leave Petition by the Supreme Court.
4. Relief to Sahi Ram in light of the determination of Avtar Singh's lease.
Issue-wise Detailed Analysis:
1. Validity of the lease determination of Avtar Singh:
The lease granted to Avtar Singh for extraction of Silica was determined by the State Government on 27th April 1984 due to alleged breaches of lease conditions. The breaches included failure to install boundary pillars, maintain proper accounts, and ensure safety measures. Avtar Singh contested these claims, stating that he had complied with the lease conditions and that the boundary pillars were demolished by local villagers but had been repaired. The State Government did not accept his explanation and forfeited the security deposit. Avtar Singh's revision petition and subsequent Special Leave Petition to the Supreme Court were dismissed.
2. Denial of natural justice and personal hearing to Avtar Singh:
The High Court held that the lease determination was in violation of the principles of natural justice. Avtar Singh was not given a personal hearing to explain the grounds mentioned in the termination order. Rule 27(5) of the Mineral Concession Rules, 1960, under which the lease was determined, does not explicitly require a personal hearing. However, the Court relied on precedents, including the Supreme Court's decisions in State of Haryana v. Ram Krishan and Assam Sillimanite Ltd. v. Union of India, to conclude that an opportunity for a personal hearing was necessary. The Court emphasized that the stakes were high and facts were in controversy, necessitating a personal hearing.
3. Maintainability of the writ petition after dismissal of the Special Leave Petition by the Supreme Court:
The High Court rejected the contention that the writ petition was not maintainable due to the dismissal of the Special Leave Petition by a non-speaking order. The Court cited the Supreme Court's decision in Indian Oil Corporation Ltd. v. State of Bihar, which clarified that a non-speaking dismissal of a Special Leave Petition does not constitute a bar to filing a writ petition. The Court also referred to the Constitution Bench decision in Daryao v. State of U.P., which held that dismissal in limine without a speaking order does not create a bar of res judicata.
4. Relief to Sahi Ram in light of the determination of Avtar Singh's lease:
Sahi Ram, who was granted the lease after the determination of Avtar Singh's lease, argued that he should not suffer due to the State's illegal action. He contended that he had made significant investments and his lease was valid until 2002. The High Court, however, noted that Sahi Ram's lease was granted and renewed during the pendency of the proceedings and was subject to the outcome of the litigation. The Court found no special equities in favor of Sahi Ram that would justify denying Avtar Singh the lease for the unexpired period.
Conclusion:
The appeals by Sahi Ram and the State of Haryana were dismissed. The High Court upheld the learned single Judge's decision, setting aside the determination of Avtar Singh's lease and directing the restoration of possession to him. The Court emphasized the necessity of granting a personal hearing and found no merit in the contention that the writ petition was not maintainable. The Court also rejected the plea for awarding damages instead of restoring the lease to Avtar Singh.
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1998 (11) TMI 688
Issues Involved:
1. Interference with police investigation.
2. Revisional jurisdiction under Section 482 of the Code of Criminal Procedure.
3. Effect of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 on proceedings under Section 138 of the Negotiable Instruments Act.
Issue-wise Detailed Analysis:
1. Interference with police investigation:
The court reiterated the well-settled law that interference with police investigations is limited. As per the Privy Council decision in *Emperor v. Nazir Ahmed*, "no doubt, if no cognizable offence is disclosed and still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation." This principle was supported by the Supreme Court in several cases, including *State of West Bengal v. Swapin Kumar Gniha* and *State of Haryana v. Bhajan Lal*. The court emphasized that an investigation cannot be quashed if some cognizable offence is disclosed by the first information report.
2. Revisional jurisdiction under Section 482 of the Code of Criminal Procedure:
The court discussed the scope of revisional jurisdiction under Section 482, which allows the High Court to give effect to an order under the Code, prevent abuse of process, and secure the ends of justice. This jurisdiction is inherently restrictive and cannot be invoked in every matter. The court noted that judicial decisions provide guiding principles, emphasizing that complaints without disclosure of an offence can be quashed, but the judiciary should not interfere with police investigations within their domain.
3. Effect of Section 22(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 on proceedings under Section 138 of the Negotiable Instruments Act:
The principal issue was the impact of Section 22(1) of the Sick Industrial Companies Act on proceedings under Section 138 of the Negotiable Instruments Act. Section 138 deals with penalties for dishonoured cheques issued for discharging debts or liabilities. The court noted that the offence under Section 138 is complete upon dishonour of the cheque and non-payment after notice, irrespective of the company's status under the Sick Industrial Companies Act. The court rejected the argument that Section 22(1) suspends criminal proceedings, stating that it applies to civil liabilities and does not extend to criminal prosecutions. The court emphasized that Section 138 is a penal provision with strict liability, and the Sick Industrial Companies Act does not negate this liability. The court cited previous judgments, including *B. Mohan Krishna v. Union of India* and *Sri Srinivasa Trading Co. v. State of A.P.*, which supported the view that Section 22(1) does not bar criminal proceedings under Section 138.
Conclusion:
The court concluded that Section 22(1) of the Sick Industrial Companies Act does not affect the prosecution under Section 138 of the Negotiable Instruments Act. The petition was dismissed, affirming that criminal liability under Section 138 is absolute and independent of the provisions of the Sick Industrial Companies Act. The court emphasized the legislative intent to maintain the penal consequences for dishonoured cheques to ensure the credibility of financial transactions.
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1998 (11) TMI 687
Issues Involved:
1. Interpretation of the term "common compound" in the Uttar Pradesh Municipalities Act, 1916.
2. Applicability of water-tax to buildings within a certain radius from a water stand pipe.
3. Jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.
4. Maintainability of a Special Appeal against the decision of a single judge.
5. Applicability of water-tax to non-residential buildings under the relevant government notification.
Issue-wise Detailed Analysis:
1. Interpretation of "Common Compound":
The primary issue was the interpretation of the term "common compound" as used in Section 129, Explanation (a) of the Uttar Pradesh Municipalities Act, 1916. The court examined whether this term would cover all buildings situated within a land where the occupants have a common right of usage. The court concluded that "common compound" has a broader meaning than "compound" as defined in Section 2(5) of the Act. It includes land used in common by the occupants of buildings situated in such land, regardless of whether it is appurtenant to any one building. The court held that all buildings within such a common compound fall within the permissible 600 feet radius from the water stand pipe for the purpose of water-tax.
2. Applicability of Water-Tax:
The court examined whether the water-tax could be imposed on buildings within a 600 feet radius from the nearest water stand pipe as per the notification of the Government of Uttar Pradesh dated 18th September, 1958. The court found that the notification allowed the imposition of water-tax on lands and buildings within this radius, without restricting it to residential buildings. Thus, the imposition of water-tax on both residential and non-residential buildings of the respondent company was justified.
3. Jurisdiction of the High Court:
The court addressed whether the High Court was justified in interfering with the decision of the appellate authority under Articles 226 and 227 of the Constitution of India. The court held that the High Court's jurisdiction was rightly invoked as the appellate authority had committed a patent error of law by ignoring the second part of Explanation (a) to Section 129, which defines "building" to include "common compound." This error warranted correction by the High Court.
4. Maintainability of Special Appeal:
The issue of whether a Special Appeal was maintainable against the decision of the single judge was considered. The court decided not to entertain this point, as the appeal had been pending since 1976 and addressing this issue would be impractical. The court noted that even if the Special Appeal was not maintainable, the respondent could have challenged the single judge's decision directly under Article 136 of the Constitution.
5. Applicability of Water-Tax to Non-Residential Buildings:
The court examined whether the factory premises of the respondent company could be taxed under the relevant notification. The court found that the notification dated 12th September, 1958, allowed the imposition of water-tax on all lands and buildings within a 600 feet radius from the nearest water stand pipe, including non-residential buildings. The court rejected the respondent's contention that the notification applied only to residential buildings.
Final Order:
The court set aside the order of the Division Bench and confirmed the order of the single judge, allowing the writ petition of the appellant Municipality. The court held that the levy of water-tax on both residential and non-residential buildings of the respondent company was justified. Consequently, there was no question of refunding any amount collected by the appellant towards the water-tax levy. The appeal was allowed with no order as to costs.
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1998 (11) TMI 686
Issues involved:
The issues involved in the judgment include the validity of executing a scheme as a decree, the claim of tenancy by the first respondent, and the direction to refer the issue of tenancy to the Tehsildar under Section 125 of the Bombay Tenancy and Agricultural Lands Act, 1958.
Validity of Executing Scheme as Decree:
The trustees of a public Trust filed an Execution Application seeking possession of Trust property under a scheme framed by the Charity Commissioner. The High Court upheld the validity of executing the scheme as a decree but directed the issue of tenancy to be referred to the Tehsildar under Section 125 of the Bombay Tenancy and Agricultural Lands Act, 1958.
Claim of Tenancy by First Respondent:
The first respondent claimed tenancy over the Trust property, Survey No. 14, without providing specific details such as the date of creation of tenancy, the creator of the tenancy, or the rent payable. The appellants contended that the claim of tenancy was collusive and lacked material particulars required for raising an issue. The Executing Court rejected the claim, and possession of the land was handed over to the Trust.
Direction to Refer Issue of Tenancy:
The High Court directed the Trust to hand over possession of the land to the first respondent based on the claim of tenancy. The appellants challenged this direction, arguing that the claim of tenancy was vague and lacked essential material facts required for framing an issue. The appellants relied on legal precedents emphasizing the necessity of disclosing details of tenancy before raising an issue.
Decision:
The Supreme Court allowed the appeal, setting aside the High Court's order directing the framing of an issue related to tenancy and the handover of possession to the first respondent. The Court emphasized the importance of providing material particulars in claims of tenancy and highlighted that a vague plea does not justify the framing of an issue.
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1998 (11) TMI 685
Issues Involved:
1. Whether the rectification applications are barred by limitation.
2. Whether the rectification applications are a misuse of the process of law and not tenable in law.
3. The applicability of Section 111 of the Trade and Merchandise Marks Act, 1958.
4. The status and jurisdiction of the High Court under the Trade and Merchandise Marks Act, 1958.
5. The applicability of the Limitation Act, 1963 to rectification applications under the Trade and Merchandise Marks Act, 1958.
Detailed Analysis:
1. Barred by Limitation:
The appellants contended that the Limitation Act does not apply to proceedings under the Trade and Merchandise Marks Act, 1958, as no specific period is prescribed for making rectification applications. Conversely, the respondents argued that since the application was made to the High Court, which is a civil court, the Limitation Act applies, and Article 137 of the Limitation Act would govern the issue. The court concluded that the applications are barred by limitation, as the appellants failed to raise the contention about the invalidity of the trade mark in their written statement when served with the suit summons, and no recurring cause of action is arising in favor of the appellants.
2. Misuse of Process of Law:
The court examined whether the rectification applications constituted a misuse of the process of law. It was found that the appellants did raise a plea about the invalidity of the respondent's trade mark in their written statement in the suit filed by the respondent. However, the court noted that the appellants had overtly abandoned this plea by not insisting on framing an issue related to the invalidity of the mark during the trial. Consequently, the court held that the appellants could not raise the issue de hors the suit by filing a rectification application independently.
3. Applicability of Section 111:
Section 111 of the Trade and Merchandise Marks Act, 1958, mandates that if a plea regarding the invalidity of a trade mark is raised in a suit for infringement, the court must stay the suit and allow the party to apply to the High Court for rectification. The court emphasized that once a suit for infringement is filed and a plea of invalidity is raised, the issue must be decided within the framework of Section 111. The court found that the appellants had abandoned their plea by not insisting on framing an issue related to the invalidity of the mark during the trial, and thus, they could not raise the issue independently through a rectification application.
4. Status and Jurisdiction of the High Court:
The court clarified that the High Court, while exercising jurisdiction under the Trade and Merchandise Marks Act, 1958, is a court and not a tribunal. The court emphasized that the High Court remains a court for the purpose of the Limitation Act, even when dealing with applications under the Trade and Merchandise Marks Act. The court rejected the contention that the High Court acts as a tribunal when exercising jurisdiction under the Act.
5. Applicability of the Limitation Act:
The court held that the Limitation Act, 1963, applies to applications made to the High Court under the Trade and Merchandise Marks Act, 1958. The court noted that the Limitation Act extends to all applications made to a court, including those under special laws, unless expressly excluded. The court observed that the incongruity between the applicability of the Limitation Act to the High Court and not to the Registrar arises from legislative changes and should be addressed by the legislature.
Conclusion:
The court concluded that the rectification applications are barred by limitation and not maintainable. The appellants had abandoned their plea regarding the invalidity of the trade mark during the trial of the suit, and thus, they could not raise the issue independently through a rectification application. The court dismissed the appeals and held that the Limitation Act applies to applications made to the High Court under the Trade and Merchandise Marks Act, 1958.
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1998 (11) TMI 684
Issues Involved:
1. Whether there is a valid and subsisting agreement between the parties.
2. Relief.
Summary:
Issue 1: Validity and Subsistence of Agreement
The primary issue was whether a binding contract existed between the parties. The appellant argued that a binding contract was formed through contemporaneous correspondence, despite the Charter Party Agreement dated November 11, 1993, not being signed. The appellant contended that the agreement was operative and binding even without the parties having agreed on the format and terms of the standby letter of credit and the performance guarantee. However, the respondent, Indian Oil Corporation Ltd., maintained that no arbitration agreement had been executed and that the correspondence did not bring about any enforceable contract because the fundamental conditions of the terms of the bargain were neither agreed upon nor fulfilled by the parties.
The court examined various documents and correspondence exchanged between the parties. It was found that the terms of the standby letter of credit and performance guarantee were not accepted by the respective parties, indicating no meeting of minds. The correspondence showed that the parties were only negotiating and had not reached a binding contract. The court emphasized that it is not empowered to create a contract for the parties by going outside the clear language used in the correspondence.
Issue 2: Relief
The learned single Judge of the Delhi High Court had earlier restrained the appellant from proceeding with the arbitration, holding that no concluded, enforceable, and binding contract came into existence between the parties. Consequently, Clause 53 of the Charter Party "agreement" relating to arbitration had no existence in the eye of law. The Supreme Court upheld this decision, finding no merit in the appeal and dismissing it with costs.
Conclusion:
The Supreme Court concluded that no binding contract was formed between the parties due to the lack of agreement on the terms of the standby letter of credit and performance guarantee. Therefore, the arbitration clause had no legal standing, and the appeal was dismissed.
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