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1988 (12) TMI 346
Issues:
1. Land acquisition appeal regarding enhancement of compensation.
2. Delay in filing the appeal and application for condonation of delay under Section 5 of the Limitation Act.
3. Reconciling the principles of equality before the law for the State and private parties in condonation of delay cases.
Analysis:
1. The case involves a land acquisition appeal where the Union of India challenged the District Judge's order enhancing compensation from Rs. 4,000 to Rs. 12,000 per bigha. An issue raised was whether the enhancement should exceed Rs. 7,000. Additionally, the question of granting additional benefits under section 2.(i) after an amendment in an award made prior to the amendment was also raised. Several appeals on this issue were pending in the Supreme Court awaiting judgment.
2. The appeal faced an 80-day delay in filing, prompting an application for condonation of delay under Section 5 of the Limitation Act. The reasons cited for the delay included the time taken by the Land Acquisition Collector to provide relevant documents and arrange court fees. However, the court expressed dissatisfaction with the vague and routine explanations commonly seen in such applications, highlighting a lack of specific details and satisfactory justifications for delays.
3. The judgment delves into the challenge of reconciling the principles laid down by the Supreme Court regarding equality before the law for all litigants, including the State, and the practical considerations of treating the government differently in certain aspects. The court emphasized the need for common sense and discretion in handling delay condonation cases, avoiding extreme positions of either strict non-condonation or unconditional condonation. It stressed the importance of considering public interest and individual rights in land acquisition matters.
4. The court criticized the prevalent negligence and delays in government departments, attributing delays to lack of responsibility, inadequate staff, and procedural inefficiencies. It highlighted the disparity between compensation awarded by courts and market values, calling for a more earnest and responsible approach in the administration of land acquisition laws. Ultimately, the court dismissed the application for condonation of delay due to unsatisfactory explanations and the appeal itself as time-barred.
In conclusion, the judgment addresses the complexities of land acquisition appeals, the challenges of delay condonation applications, and the need to balance legal principles with practical considerations in the context of government actions and public interest.
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1988 (12) TMI 345
Issues:
Stay of suit based on pending enquiry before the Board for Industrial and Financial Reconstruction under Sick Industrial Companies Act, 1985.
Analysis:
The defendant-company sought a stay of the suit based on an ongoing inquiry before the Board for Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985. The defendant relied on section 22(1) of the Act, which suspends legal proceedings against an industrial company under certain circumstances. The plaintiff argued that not all proceedings need to be stayed, citing a previous judgment by the Division Bench of the court. The defendant contended that the legislative intent was to stay all proceedings, including suits, once an inquiry commences under the Act. The Statement of Objects and Reasons for the Act highlighted the need to revive sick industrial companies for public interest, emphasizing the protection of assets and funds. The court noted that the Act aims to protect company assets and ensure its survival, not to restrain all pending suits against the company.
The court analyzed the language of section 22(1) of the Act, emphasizing that the provision aims to prevent coercive proceedings that may lead to the seizure and sale of company properties, hindering its revival. The defendant argued that the phrase "or the like" in the provision includes suits, but the court rejected this interpretation, stating that it refers to coercive actions affecting the company's assets. The court highlighted that the legislative intent, as expressed in the Act, is to restrain proceedings related to company properties, not other liabilities that may arise from suits.
The court rejected the defendant's argument that a decree in a suit could jeopardize the company's functioning, stating it is a hypothetical scenario. The court clarified that if a decree is passed and the company can pay, there would be no need for winding up or execution. However, if execution becomes necessary due to the company's sickness, the company can invoke section 22(1) of the Act. Ultimately, the court dismissed the motion for stay of the suit, emphasizing that the legislative intent is clear in providing restraint against proceedings related to company properties, not all liabilities that may arise from suits.
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1988 (12) TMI 344
Issues:
1. Conviction under Section 21 of the NDPS Act
2. Compliance with mandatory provisions of Section 50 of the NDPS Act
3. Preservation of case property and genuineness of recovery
Analysis:
1. The appellant was convicted under Section 21 of the NDPS Act and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000. The appellant filed an appeal from jail and was represented by an appointed amicus curiae, Ms. Pinki Anand. The appeal was initially barred by limitation but the delay was condoned by an order dated August 31, 1987.
2. The prosecution's case involved the apprehension of the appellant at a bus stand where 300 gms of smack heroin were recovered from his possession. The prosecution witnesses included Inspector Satendra Nath, Asi Umed Singh, and Head Constable Attar Singh. The defense pointed out non-compliance with the mandatory provisions of Section 50 of the NDPS Act, which require offering the accused the option of a search in the presence of a gazetted officer or magistrate.
3. The judge noted that the police did not comply with the provisions preceding the recovery, raising doubts about the genuineness of the recovery. The parcel containing the heroin did not bear seals when presented in court, indicating a lack of proper preservation of case property. The judge emphasized the importance of complying with the salutary provisions of the NDPS Act to ensure fair investigations. Due to these deficiencies and doubts, the judge acquitted the appellant, setting aside the conviction and sentences.
4. In conclusion, the appeal was allowed, and the appellant was acquitted based on the lack of compliance with mandatory provisions, doubts about the genuineness of the recovery, and insufficient preservation of case property. The judgment highlighted the importance of following legal procedures to uphold the integrity of investigations and ensure justice in cases involving serious offenses under the NDPS Act.
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1988 (12) TMI 343
Issues Involved:
1. Examination of an approver who has resiled from his statement.
2. The legal obligation of the prosecution to examine the approver.
3. The right of the approver to cast away the pardon.
4. Protection under Article 20(3) of the Constitution of India.
Summary:
1. Examination of an approver who has resiled from his statement:
The respondent, Jagjit Singh, an approver in the Transistor Bomb Case, resiled from his statement made before the Committing Magistrate. Despite this, the prosecution sought to examine him as a witness. The Supreme Court held that Sub-section (4) of Section 306 of CrPC mandates that a person accepting a tender of pardon must be examined as a witness in both the Committing Court and the trial court, irrespective of whether the approver has resiled from his statement.
2. The legal obligation of the prosecution to examine the approver:
The Court emphasized that the prosecution is obligated to examine the approver as a witness in both the Committing Court and the trial court. This obligation persists unless the Public Prosecutor certifies that the approver has wilfully concealed essential information or given false evidence, in which case the approver may be tried u/s 308 of the CrPC.
3. The right of the approver to cast away the pardon:
The Court rejected the contention that the approver has the right to cast away the pardon granted to him. It was held that the power to grant pardon includes the right to impose conditions, and the approver must comply with these conditions by making a full and true disclosure of all relevant circumstances. The approver cannot unilaterally withdraw from the pardon until he is examined as a witness by the prosecution.
4. Protection under Article 20(3) of the Constitution of India:
The respondent argued that his evidence as an approver could be used against him in other criminal cases where he is an accused, violating Article 20(3) of the Constitution. The Court held that once an accused is granted pardon u/s 306 of the CrPC, he ceases to be an accused and becomes a prosecution witness. Section 132 of the Indian Evidence Act, 1872, protects the witness from prosecution based on the answers given during testimony, except for prosecution for giving false evidence. Thus, the apprehension of the respondent was deemed baseless.
Conclusion:
The Supreme Court allowed the appeal, setting aside the judgment and order dated April 27, 1987, passed in Revision Petition No. 221 of 1986, and directed that the respondent-approver must be examined as a witness by the prosecution in the trial court.
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1988 (12) TMI 342
Issues Involved:
1. Validity of the Karnataka Cinemas (Regulation) (Amendment) Rules, 1979.
2. Competence of the State Government to enact Rule 7A.
3. Whether Rule 7A is ultra vires Section 5(2) of the Karnataka Cinemas (Regulation) Act, 1964.
4. Whether Rule 7A violates Article 19(1)(g) of the Constitution.
5. Whether Rule 7A violates Article 301 of the Constitution.
6. Whether the Licensing Authority has exclusive power to impose conditions on licenses.
Issue-wise Detailed Analysis:
1. Validity of the Karnataka Cinemas (Regulation) (Amendment) Rules, 1979:
The petitioners challenged the Amendment Rules, specifically condition 12A, which mandated the exhibition of Kannada films for not less than twelve weeks in a year. The respondents justified the rule, stating it was in the public interest to promote Kannada culture and cater to the Kannada-speaking population's desires. The court examined the Preamble and provisions of the Karnataka Cinemas (Regulation) Act, 1964, concluding that the Act's purpose includes regulating the exhibition of films, not just the cinematographs and licensing of places.
2. Competence of the State Government to Enact Rule 7A:
The petitioners argued that Rule 7A was beyond the State Government's competence, contending that the Act's purpose was not to regulate the exhibition of films. The court, however, held that Section 19(1) of the Act confers broad powers on the State Government to make rules to carry out the Act's purposes, which include regulating the exhibition of films. The court referred to the Supreme Court's judgment in Minerva Talkies, which upheld similar regulatory rules, affirming the State Government's competence to enact Rule 7A.
3. Whether Rule 7A is Ultra Vires Section 5(2) of the Karnataka Cinemas (Regulation) Act, 1964:
The petitioners contended that the State Government could not impose conditions on licenses, as this power was exclusively vested in the Licensing Authority. The court disagreed, stating that Section 5(2) of the Act allows the Licensing Authority to impose conditions subject to the Act and the rules made thereunder. Thus, Rule 7A, framed under Section 19(1), validly becomes a condition of the license.
4. Whether Rule 7A Violates Article 19(1)(g) of the Constitution:
The petitioners claimed that Rule 7A unreasonably restricted their fundamental right to carry on their trade or business. The court acknowledged that while the rule aimed to promote Kannada culture, it imposed an arbitrary and unreasonable burden on exhibitors, particularly given the limited production of Kannada films. The court found that the rule's requirement to exhibit Kannada films for 12 weeks could lead to significant financial loss for exhibitors and was, therefore, violative of Article 19(1)(g).
5. Whether Rule 7A Violates Article 301 of the Constitution:
The petitioners also argued that Rule 7A violated Article 301, which ensures freedom of trade and commerce. The court did not find sufficient grounds to uphold this claim, focusing instead on the rule's reasonableness under Article 19(1)(g).
6. Whether the Licensing Authority has Exclusive Power to Impose Conditions on Licenses:
The court clarified that the power to impose conditions on licenses is not exclusively vested in the Licensing Authority. Section 19(1) of the Act empowers the State Government to make rules, which can include conditions for licenses. Thus, Rule 7A, made by the State Government, validly forms part of the licensing conditions.
Conclusion:
The court concluded that while Rule 7A and condition 12A were made in the public interest and within the State Government's competence, the specific requirement to exhibit Kannada films for 12 weeks was arbitrary and unreasonable. Consequently, the court struck down the 12-week requirement as violative of Article 19(1)(g) but upheld the State Government's authority to impose such conditions in principle. The petitions were allowed to the extent that Rule 7A and condition 12A were invalidated regarding the 12-week exhibition requirement.
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1988 (12) TMI 341
Issues:
1. Defendants seeking leave to defend on various contentions including lack of proper index for claiming interest, non-proceedings against the Company, and deprivation of benefits under specific sections of the Indian Contract Act.
2. Disagreement between the parties regarding the necessity of a deposit as a condition for granting leave to defend.
3. Interpretation of Order 37, Rule 3, sub-rule 3 of the Code of Civil Procedure regarding the terms for granting conditional leave to defend.
4. Determining appropriate terms for granting conditional leave to defend in a case where the debt is fully secured.
Analysis:
1. The defendants sought leave to defend the suit on multiple grounds, including the absence of a proper index for claiming interest, the plaintiffs not proceeding against the Company, deprivation of benefits under certain sections of the Indian Contract Act, and the alleged acceleration of payment installments by the Company detrimental to the defendants. The defendants argued that the debt was fully secured by a mortgage of the Company's properties, which should be considered in granting leave to defend.
2. The parties disagreed on the necessity of a deposit as a condition for granting leave to defend. While the plaintiffs argued for a deposit due to the lack of personal security from the defendants, the defendants contended that the debt being fully secured should negate the need for a deposit. The court considered the arguments and the nature of the defenses raised by the defendants in determining the necessity of a deposit.
3. The court interpreted Order 37, Rule 3, sub-rule 3 of the Code of Civil Procedure, which allows the court to grant leave to defend upon terms deemed just. The court noted that while a deposit is a common condition for granting leave to defend, it is not mandatory, and other terms can be devised to enable a party to defend the suit effectively. The court highlighted that the purpose of any condition should be to secure the decretal amount.
4. Considering the fully secured nature of the debt and the adequacy of the defendants' defense, the court decided not to order a deposit as a condition for granting leave to defend. Instead, the court imposed a time-bound schedule for defending the suit, emphasizing the importance of expediting the proceedings. The court granted conditional leave to defend, requiring the defendants to file their written statements within a specified timeframe and setting deadlines for further procedural steps leading to the final disposal of the suit.
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1988 (12) TMI 340
Issues Involved:
1. Application for amendment of the plaint.
2. Admission of liability by the defendants.
3. Delay in presenting the amendment application.
4. Change in the nature or character of the plaint.
5. Effect of limitation lapse on defendants' rights.
Detailed Analysis:
1. Application for Amendment of the Plaint:
The plaintiffs sought to amend the plaint to include a letter dated September 7, 1983, as an admission of liability or a fresh cause of action. The plaintiffs argued that the amendment did not change the nature of the plaint and would not prejudice the defendants, as any prejudice could be compensated by costs. The defendants contested this, arguing that the amendment would change the nature of the plaint and affect their accrued rights due to the lapse of limitation.
2. Admission of Liability by the Defendants:
The letter dated September 7, 1983, from the defendants to the plaintiffs contained an unequivocal admission of liability for the amount due under the Bills of Exchange. This letter was crucial as it admitted the debt and promised payment by mid-November 1983. The court noted that this admission was significant and formed part of the plaintiffs' claim, reinforcing their case.
3. Delay in Presenting the Amendment Application:
The court acknowledged the delay in presenting the amendment application but found that the delay did not cause any particular loss to the defendants. The letter in question was already produced at the earliest stage of the proceedings, and the defendants were fully aware of its contents and implications. Therefore, the delay did not justify disallowing the amendment.
4. Change in the Nature or Character of the Plaint:
The defendants argued that the amendment would change the nature of the plaint from being based on the Bills of Exchange to being based on the original consideration. The court disagreed, stating that the original consideration and the Bills of Exchange were two sides of the same transaction and inextricably intertwined. The court held that the amendment did not introduce a new cause of action but sought to prove the existing cause of action with additional evidence.
5. Effect of Limitation Lapse on Defendants' Rights:
The defendants contended that allowing the amendment would deprive them of a valuable right accrued due to the lapse of limitation. The court found this argument fallacious, stating that the letter dated September 7, 1983, did not constitute a fresh cause of action but was an admission of an already existing liability. The suit was not based on the letter as a new cause of action but on the original consideration and the Bills of Exchange, which were intertwined.
Conclusion:
The court allowed the amendment, finding that it did not change the nature or character of the suit and did not introduce a new cause of action. The amendment was necessary to serve the cause of justice, and any prejudice to the defendants could be compensated by costs. The court granted leave to amend the plaint and provided a timeline for the defendants to file an appeal if they chose to do so. The court also indicated that similar amendments would be allowed in related suits if no appeal was filed or if the appeal was unsuccessful.
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1988 (12) TMI 339
Issues Involved:
1. Legality of the detention order.
2. Maintainability of the writ petition under Article 32.
3. Identity of the petitioner.
4. Grounds of detention and their vagueness.
5. Distinction between "law and order" and "public order."
Summary of Judgment:
1. Legality of the Detention Order:
The petitioner challenged the legality of the detention order dated August 3, 1988, passed by the Commissioner of Police, Ahmedabad City, u/s 3(2) of the Gujarat Prevention of Anti-social Activities Act, 1985. The grounds for detention included allegations of hoarding and selling illegal foreign liquor, creating an atmosphere of fear, and causing hindrance to public order.
2. Maintainability of the Writ Petition under Article 32:
The Court held that the writ petition is maintainable under Article 32 of the Constitution, even though the representation of the petitioner was pending before the Advisory Board. This was supported by the precedent set in Prabhu Dayal Deorah v. The District Magistrate, Kamrup, [1974] 1 SCC 103.
3. Identity of the Petitioner:
The petitioner claimed his name was Piyush Kantilal Mehta, not Piyush Kantilal Shah, alleging a deliberate and mala fide detention. The Court found no reason to disbelieve the detaining authority's statement that the petitioner signed as Piyush Kantilal Shah when the order was served. The Court concluded that the petitioner is also known as Piyush Kantilal Shah.
4. Grounds of Detention and Their Vagueness:
The grounds of detention included two criminal cases against the petitioner, allegations of creating fear and terror, and statements from five witnesses. The Court found these allegations to be general and vague, lacking specific incidents to substantiate the claims. The Court emphasized that merely being a bootlegger does not justify preventive detention unless the activities affect or are likely to affect adversely the maintenance of public order, as per section 3(4) of the Act.
5. Distinction between "Law and Order" and "Public Order":
The Court reiterated the distinction between "law and order" and "public order," citing Pushkar Mukherjee v. State of West Bengal, [1969] 2 SCR 635. The Court held that the petitioner's activities did not create a feeling of insecurity or panic among the general public, thus not affecting public order. The grounds of detention were found to be vague and insufficient to justify preventive detention.
Conclusion:
The Court allowed the writ petition, quashed the impugned detention order, and directed the immediate release of the petitioner. The grounds of detention were deemed vague, and the allegations did not substantiate a threat to public order.
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1988 (12) TMI 338
Issues:
1. Challenge to detention order under COFEPOSA Act and subsequent declaration.
2. Non-consideration of bail rejection order by declaring authority.
Analysis:
1. The petitioner filed a writ petition seeking to quash the detention order made under the COFEPOSA Act and a subsequent declaration. The petitioner was found in possession of smuggled goods, leading to his detention. Various grounds were raised to challenge the detention order and declaration, with a focus on a specific issue regarding the non-consideration of a bail rejection order by the declaring authority.
2. The key contention in the case revolved around the failure of the declaring authority to consider an order rejecting the petitioner's bail application. The petitioner argued that the bail rejection order was a vital piece of evidence that could have influenced the declaring authority's decision to make the declaration under Section 9 of the COFEPOSA Act. The respondent, however, argued that the bail rejection was irrelevant since the detention order had already been issued. The court emphasized the importance of presenting all relevant evidence before the declaring authority to ensure a fair decision. Citing precedents and judgments, the court held that the bail rejection order was a crucial document that should have been considered. The court found that the non-consideration of the bail rejection order by the declaring authority rendered the declaration invalid and ordered the quashing of the declaration and the release of the petitioner from detention unless required otherwise.
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1988 (12) TMI 337
Issues:
1. Whether house rent allowance paid to employees amounts to a perquisite for computing disallowance under section 40(a)(v) of the Income-tax Act, 1961?
2. Whether the expenditure incurred in transferring plant and machinery from one location to another should be treated as a revenue expenditure or a capital expenditure?
Analysis:
Issue 1:
The first question pertains to whether house rent allowance paid to employees constitutes a perquisite for computing disallowance under section 40(a)(v) of the Income-tax Act, 1961. The court, guided by its previous judgments in CIT v. Mercantile Bank Ltd. and CIT v. Indokem (P.) Ltd., concluded that the house rent allowance does not amount to a perquisite for the purpose of computing disallowance under the specified section. Therefore, the first question was answered in the affirmative and in favor of the assessee.
Issue 2:
Regarding the second question on the treatment of expenditure incurred in transferring plant and machinery from one location to another, the court delved into the nature of the expenditure. The department argued that the expenditure was of a capital nature based on the Supreme Court decision in Sitalpur Sugar Works Ltd. v. CIT, supported by judgments from Patna High Court and Madras High Court. Conversely, the assessee contended that without a finding from the Tribunal on whether the shifting of plant and machinery provided an enduring advantage, the capital nature argument did not apply. The assessee relied on the Supreme Court decision in CIT v. Associated Cement Co. Ltd. and the Calcutta High Court decision in CIT v. Karanpura Development Co. Ltd. for supporting the revenue expenditure treatment.
The court analyzed the situation and found that the shifting of plant and machinery to the assessee's own premises indeed conferred an enduring advantage, aligning with the principles in the Sitalpur Sugar Works Ltd. case. Considering the absence of definitive rules and the necessity to evaluate each case's facts individually, the court ruled that the expenditure was of capital nature. Consequently, the Tribunal's decision to allow the expenditure as revenue expenditure was deemed incorrect. Thus, the second question was answered in the negative and in favor of the revenue.
In conclusion, the court's judgment clarified the treatment of house rent allowance and expenditure on plant and machinery transfer, providing a nuanced analysis based on established legal precedents and the specific circumstances of the case.
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1988 (12) TMI 336
Issues involved: Appeal against the judgment and order of the Customs Excise and Gold (Control) Appellate Tribunal regarding confiscation of goods, imposition of redemption fine, and penalty for importing canalized items under additional import license.
The appellants imported canalized items under additional import license granted pursuant to a Supreme Court order. The Customs Authorities and Union of India interpreted the order as authorizing import of canalized items. The Principal Collector Customs Central Excise informed about the permissibility of import of canalized items. The appellants entered into a contract for import but faced penalty and confiscation orders upon arrival of goods. The Tribunal found a wrong understanding of the law by all parties involved, set aside penalties, but upheld redemption fine due to lack of bona fide action by the appellants.
The parties referred to various court decisions and orders by Customs Authorities and Union Government. The Supreme Court found that the appellants imported goods bona fide under the additional import license as per the court's orders. The Tribunal's findings on the appellants' bona fide actions were accepted. Consequently, the Supreme Court allowed the appeal, set aside confiscation and redemption fine orders, and directed the authorities to refund the redemption amount already paid by the appellants within one month.
This judgment emphasizes the special facts and circumstances of the case and clarifies that it should not be considered a precedent. No costs were awarded in this matter.
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1988 (12) TMI 335
Issues:
- Termination of services under Article 310 of the Constitution
- Applicability of Article 311(2) of the Constitution
- Interpretation of the Central Civil Services (Classification Control and Appeal) Rules, 1965
- Impact of Article 310(1) of the Constitution on rule-making power under Article 309
- Consideration of equitable relief based on poverty and prolonged litigation
Analysis:
The respondent, a civilian worker in the Defence Department, had his services terminated under Article 310 of the Constitution without any reason provided. The respondent challenged the termination, seeking a declaration of illegality and compensation. The lower courts awarded damages, which were confirmed by the High Court of Kerala, leading to this appeal. The Supreme Court noted that Article 311(2) did not apply to the respondent, as he was not entitled to its protection due to drawing his salary from Defence Estimates.
The key issue revolved around the applicability of the Central Civil Services (Classification Control and Appeal) Rules, 1965 to the respondent. The Court examined the interplay between Article 310(1) and Article 309 of the Constitution. It was established that the rule-making power under Article 309 is subject to Article 310(1), which embodies the pleasure doctrine. The Court cited precedents to clarify that rules made under Article 309 are subject to the pleasure doctrine and the limitations imposed by Article 311.
The Court rejected the argument that the 1965 Rules applied to the respondent, emphasizing that since Article 311(2) protection was not available, the Rules could not independently benefit him. The respondent's contention that the Rules were framed by the President to control his pleasure doctrine was deemed faulty. Additionally, the Court addressed the respondent's reliance on an admission by the appellants regarding the applicability of the Rules, stating that such admissions did not bind the appellants.
In a compassionate decision, the Court considered the respondent's poverty and the prolonged litigation, opting to retain the decree in the respondent's favor based on equitable grounds. Despite the appellants succeeding on the legal question, the respondent retained the decree due to compassionate considerations. The appellants were directed to bear the costs of the respondent. The Court highlighted the need for equitable relief in deserving cases and emphasized the unique circumstances of the respondent's case, leading to the decision to uphold the decree in his favor.
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1988 (12) TMI 334
The High Court of Calcutta ruled in favor of the assessee regarding the deduction of legal expenses related to protecting shares of Mysore Paper Mills Ltd. The Tribunal justified deleting the expenses as they were incurred for preserving income-yielding shares. The Court referenced a Supreme Court decision supporting the deductibility of such expenses. The question of law was answered in favor of the assessee, and no costs were awarded.
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1988 (12) TMI 333
The High Court of Allahabad held that recovery proceedings can only be enforced against the assets of a company, not against the personal assets of its Director. No specific provision in the U.P. Sales Tax Act allows for recovery from personal assets of a Director. The writ petition was disposed of accordingly.
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1988 (12) TMI 332
Issues Involved:
1. Whether the President is precluded from entering into the merits of a case decided finally by the Supreme Court when exercising powers under Article 72.
2. Whether judicial review extends to an examination of the order passed by the President under Article 72.
3. Whether the petitioner is entitled to an oral hearing from the President on his petition invoking powers under Article 72.
4. Whether guidelines should be drawn up for regulating the exercise of the power under Article 72.
5. Reconsideration of the constitutional validity of the statutory provisions in the Indian Penal Code providing for the sentence of death.
Summary:
Issue 1: President's Power under Article 72
The Court examined whether the President is precluded from entering into the merits of a case decided by the Supreme Court when exercising powers under Article 72. The Court held that the President is entitled to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court regarding the guilt and sentence imposed on the accused. The President acts under a constitutional power, which is entirely different from judicial power, and this does not amend or modify the judicial record.
Issue 2: Judicial Review of President's Order
The Court considered whether judicial review extends to examining the President's order under Article 72. It concluded that the order of the President cannot be subjected to judicial review on its merits except within the strict limitations defined in Maru Ram v. Union of India. The Court emphasized that it is within its jurisdiction to determine whether the President's act falls within the constitutional conferment of power.
Issue 3: Right to Oral Hearing
The Court addressed whether the petitioner is entitled to an oral hearing from the President on his petition under Article 72. It held that there is no right for the condemned person to insist on an oral hearing. The manner of consideration of the petition lies within the discretion of the President, who may decide how best to acquaint himself with all necessary information for its disposal.
Issue 4: Guidelines for Exercise of Power under Article 72
The petitioners urged the Court to draw up guidelines to prevent arbitrary exercise of power under Article 72. The Court found that there is sufficient indication in the terms of Article 72, its historical context, and existing case law, making specific guidelines unnecessary. The power under Article 72 is of the widest amplitude and can contemplate various kinds and categories of cases.
Issue 5: Reconsideration of Death Penalty Provisions
An appeal was made to reconsider the constitutional validity of the death penalty provisions in the Indian Penal Code. The Court, bound by the law laid down in Bachan Singh v. State of Punjab, decided not to reconsider the matter. The Attorney General highlighted that only a few sections of the IPC enable the imposition of the death penalty and that its imposition is an exception rather than the rule.
Conclusion:
The Court held that the petition invoking the President's power under Article 72 shall be deemed pending and must be dealt with afresh. The sentence of death imposed on Kehar Singh shall remain in abeyance meanwhile. The writ petitions and the special leave petition were concluded accordingly.
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1988 (12) TMI 331
Issues Involved:
1. Whether a special permit u/s 63(6) of the Motor Vehicles Act can be granted after the coming into force of the Karnataka Contract Carriages (Acquisition) Act, 1976.
2. Interpretation of the term "contract carriage" u/s 3(g) of the Act.
3. Validity of the prohibition on the issuance of new permits or renewal of existing permits for contract carriages u/s 14 and 20(3) of the Act.
Summary:
Issue 1: Grant of Special Permit u/s 63(6) of the Motor Vehicles Act
The primary issue was whether a special permit u/s 63(6) of the Motor Vehicles Act could be granted after the Karnataka Contract Carriages (Acquisition) Act, 1976 came into force. The Supreme Court held that the Act prohibits the issuance of such permits. The High Court's view that a public service vehicle without a special permit when the Act came into force would not fall under the definition of "contract carriage" was incorrect. The Act's intention was to prevent misuse and provide better transport facilities, thus barring the grant of special permits post-enactment.
Issue 2: Definition of "Contract Carriage" u/s 3(g) of the Act
The term "contract carriage" u/s 3(g) of the Act includes public service vehicles with special permits issued u/s 63(6) of the Motor Vehicles Act. The Supreme Court clarified that the words "has been issued" in clauses (i) and (ii) of section 3(g) refer to permits issued after the Act's commencement. The exclusion clause (ii) of section 3(g) excludes stage carriages with special permits in force on January 30, 1976, from the definition of "contract carriage."
Issue 3: Prohibition on Issuance of Permits u/s 14 and 20(3) of the Act
Section 14, read with section 20(3) of the Act, bars the issuance or renewal of permits for running any contract carriage, thereby conferring a monopoly on the Karnataka State Road Transport Corporation. The Supreme Court rejected the argument that the prohibition only applied to contract carriages and not stage carriages. The interpretation that the word "permit" in section 3(m) refers solely to permits for contract carriages under the Motor Vehicles Act was deemed incorrect. The Act's provisions aim to prevent the issuance of permits for running vehicles as contract carriages, whether they are contract carriages or stage carriages.
Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's judgment, and dismissed the writ petition filed by the respondent. The decision reinforced the prohibition on granting special permits for contract carriages post-enactment of the Karnataka Contract Carriages (Acquisition) Act, 1976.
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1988 (12) TMI 330
Issues:
Challenge to assessment order under Haryana General Sales Tax Act for levy of tax on turnover relating to supply of rice under Levy Order. Interpretation of procurement price under Schedule III. Liability of dealer to pay sales tax on transactions of supply of rice to procurement agencies. Whether supply and delivery of rice under Levy Order constitutes a sale attracting sales tax. Validity of retrospective amendment to Haryana General Sales Tax Act. Liability of dealer to pay sales tax regardless of purchaser's non-payment. Conditions for reimbursement of sales tax on levy rice. Exhaustion of remedies under the Act before approaching the High Court.
Analysis:
The petitioner, a registered dealer and licensed miller, challenged an assessment order under the Haryana General Sales Tax Act for the levy of tax on the turnover related to the supply of rice under the Haryana Rice Procurement (Levy) Order. The petitioner contended that the procurement price fixed under Schedule III of the Levy Order did not include taxes, allowing for the addition of sales tax to the procurement price. The Court referred to previous judgments and held that transactions of supply of rice to procurement agencies are taxable sales, making the dealer liable to pay sales tax on the turnover.
The Court analyzed whether the supply and delivery of rice under the Levy Order constituted a sale under the Haryana General Sales Tax Act. Referring to Supreme Court decisions, the Court concluded that the transactions resembled sales and were subject to sales tax. The retrospective amendment to the Act, making the sale or purchase of goods inclusive of transfers for consideration, further solidified the liability of the dealer to pay sales tax on the transactions.
Addressing the issue of liability, the Court emphasized that the dealer's obligation to pay sales tax was not dependent on the purchaser's payment. Even if the purchaser was the Government, the dealer had to comply with the statutory liability. The Court also outlined conditions for reimbursement of sales tax on levy rice, subject to certain requirements and exclusions.
Regarding the exhaustion of remedies, the Court directed the petitioner to utilize the appeal and revision mechanisms provided under the Act before approaching the High Court. The Court highlighted that the Act itself provided effective remedies, discouraging direct petitions under Article 226 of the Constitution for matters covered under the Act.
In conclusion, the writ petition challenging the assessment order was dismissed, emphasizing the dealer's liability to pay sales tax on the turnover of rice supply under the Levy Order. The Court provided clarity on the legal obligations of the dealer, conditions for reimbursement, and the importance of exhausting statutory remedies before seeking relief from the High Court.
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1988 (12) TMI 329
The Rajasthan High Court allowed the revision petition, setting aside the Tribunal's order and affirming the tax liability imposed on the assessee for not being entitled to exemption under the Rajasthan Sales Tax Act. The Court referred to a previous judgment regarding export transactions involving cotton purchases. The Tribunal's decision was deemed incorrect, and the orders of the lower courts were upheld.
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1988 (12) TMI 328
The Sales Tax Tribunal concluded that penalty proceedings under section 15-A(1)(h) of the U.P. Sales Tax Act were not leviable, but remanded the case for consideration under other clauses. The High Court held that the Tribunal exceeded its authority by remanding the case and set aside the order. The revision petition was allowed with costs assessed at Rs. 200.
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1988 (12) TMI 327
Issues Involved:
1. Legality of remand order by the Assistant Commissioner (Judicial), Sales Tax.
2. Adequacy of the assessment process by the Sales Tax Officer.
3. Competence and discretion of the appellate authority in setting aside the assessment.
Detailed Analysis:
1. Legality of Remand Order by the Assistant Commissioner (Judicial), Sales Tax:
The core argument presented by the assessee was that the remand for fresh assessment was unwarranted. However, the judgment upheld the remand, stating the Assistant Commissioner (Judicial) acted within his jurisdiction. Section 9 of the U.P. Sales Tax Act empowers the appellate authority to set aside an assessment and direct a fresh assessment after further inquiry. The judgment emphasized that this power must be exercised judicially and not arbitrarily. The Assistant Commissioner (Judicial) found that the Sales Tax Officer had not properly scrutinized the documents seized during the surveys, which justified the remand for a thorough investigation.
2. Adequacy of the Assessment Process by the Sales Tax Officer:
The judgment highlighted significant deficiencies in the assessment process. The Sales Tax Officer failed to consider the material seized during the surveys, including an exercise book with entries for the years 1974-75 and 1975-76. There was no attempt to process these entries or determine their relevance to the disputed year. The Assistant Commissioner (Judicial) noted that the turnover was only marginally increased without scrutinizing the seized documents or considering relevant factors like electric consumption. The appellate authorities concluded that the assessing officer did not fulfill his duty to scrutinize and process the material, necessitating a remand for a proper assessment.
3. Competence and Discretion of the Appellate Authority in Setting Aside the Assessment:
The judgment affirmed the broad powers of the appellate authority under Section 9 of the Act, which includes confirming, reducing, enhancing, or annulling the assessment. The appellate authority can also set aside the assessment and direct a fresh order after further inquiry. The judgment referenced precedents like Bhagwati Oil Mills v. Commissioner of Sales Tax and Hari Oil Mills v. Commissioner of Sales Tax, U.P., which supported the validity of remand orders when the original assessment lacked proper scrutiny. The judgment concluded that the Assistant Commissioner (Judicial) acted within his discretion and in the interest of justice by remanding the case for fresh assessment.
The judgment dismissed the assessee's apprehension that the remand would lead to an arbitrary enhancement of turnover. It clarified that the assessing authority, upon remand, has the same powers as in the original assessment and must consider the entire case afresh, including any new material discovered during further investigation. The judgment concluded that the remand was justified and based on judicial considerations, dismissing the revision with costs.
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