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1995 (2) TMI 481
Issues Involved:
1. Alleged contravention of sections 8(3) and 8(4) of the Foreign Exchange Regulation Act, 1973.
2. Validity of the adjudicating officer's findings and conclusions.
3. Evidence regarding the valuation and import of books.
4. Consideration of statements under section 40 of the Act.
5. Legal implications of general malpractices in foreign exchange transactions.
Issue-wise Detailed Analysis:
1. Alleged Contravention of Sections 8(3) and 8(4):
The core issue in the appeals was whether the appellants contravened sections 8(3) and 8(4) of the Foreign Exchange Regulation Act, 1973. The adjudicating authority imposed a penalty of Rs. four lakhs on the first appellant for allegedly remitting money abroad for importing books under OGL without receiving equivalent value in return. The show-cause notice alleged that the appellants remitted Rs. 22,69,844.55, which they were entitled to get back, thus contravening the Act. However, the appellate tribunal found that the adjudicating officer's conclusions were not supported by concrete evidence and were contrary to the evidence submitted by the appellants.
2. Validity of the Adjudicating Officer's Findings and Conclusions:
The appellants argued that the adjudicating officer's findings were legally untenable and not based on evidence. The tribunal agreed, noting that the officer ignored significant evidence, such as the printed price list of books, which contradicted the allegations of over-invoicing. The tribunal emphasized that the burden of proof was on the department to establish that the invoice value was higher than the normal prices, which was not done. The tribunal found that the officer's reliance on letters from the Indian High Commission and Customs authorities did not constitute admissible evidence.
3. Evidence Regarding the Valuation and Import of Books:
The tribunal scrutinized the evidence related to the valuation of imported books. It noted discrepancies in the adjudicating officer's findings, such as the incorrect assertion that books did not bear prices at the time of import. The tribunal highlighted the availability of a published catalogue and price list, which showed that the invoice values were consistent with market prices. The tribunal criticized the lack of inquiry from publishers to ascertain market prices and the failure to consider evidence submitted by the appellants, such as insurance cover and European Community Certificate of origin, which indicated the books' value.
4. Consideration of Statements Under Section 40:
The tribunal addressed the use of statements recorded under section 40 of the Act. It found that the adjudicating officer erred in relying on these statements to determine book prices, as such determinations should be based on primary and documentary evidence. The tribunal noted that statements could not substantiate findings when documentary evidence was available, emphasizing the need for objective evidence to establish contraventions.
5. Legal Implications of General Malpractices in Foreign Exchange Transactions:
The tribunal criticized the adjudicating officer's consideration of general malpractices in foreign exchange transactions, stating that such considerations were not legally permissible. It emphasized that decisions should be based on the specific facts and circumstances of each case, without being influenced by extraneous considerations. The tribunal found that the officer's approach lacked objectivity and failed to investigate material facts adequately.
Conclusion:
The tribunal concluded that the findings of contravention of sections 8(3) and 8(4) were not sustainable due to the lack of admissible evidence and the failure to consider relevant evidence submitted by the appellants. Consequently, the tribunal set aside the impugned order, allowing the appeals and nullifying the penalties imposed on both appellants.
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1995 (2) TMI 480
Issues Involved:
1. Whether the High Court, exercising powers u/s Article 226 of the Constitution, can issue directions to Magistrate or Sessions Court to consider bail applications on the same day.
2. Whether the High Court can direct the release of the accused on interim bail if the bail application is not concluded the same day.
3. Examination of the validity and implications of U.P. Act No. 16 of 1976 repealing Section 438 of the Cr.P.C. in Uttar Pradesh.
Summary:
Issue 1: Directions for Same Day Bail Consideration
The Full Bench unanimously held that the High Court, while exercising powers u/s Article 226 of the Constitution, cannot fix a time schedule for concluding bail proceedings. The decision in Dr. Hidavat Hussain Khan v. State of U.P., (1992 Crl. LJ 3534) was overruled, and the decision in Noor Mohammad v. State of U.P. was upheld. The Court emphasized that the provisions of the Code do not envisage the disposal of bail applications on the same day and that such directions would violate the provisions of law and subvert the process inherent in bail determination.
Issue 2: Interim Bail
The Full Bench concluded that the provision for granting interim bail is not implicit in the main provision of bail. The Court observed that the law declared by the apex Court is binding and that interim bail cannot be granted merely because the bail application is not concluded on the same day. The Court maintained that the provisions of Section 437(1) & (2) of the Cr.P.C. are stringent and must be literally and strictly construed to promote the object of the statute.
Issue 3: Validity of U.P. Act No. 16 of 1976
The Full Bench upheld the validity of U.P. Act No. 16 of 1976, which repealed Section 438 of the Cr.P.C. in Uttar Pradesh, stating that it does not violate Articles 14, 19, and 21 of the Constitution. This view was affirmed by the apex Court in Kartar Singh v. State of Punjab, which held that the deletion of Section 438 in U.P. is valid under Articles 245(2) and 345(2) of the Constitution.
Conclusion:
The Full Bench directed that bail applications should be decided expeditiously in accordance with the law but rejected the notion of fixing a time schedule for same-day consideration or granting interim bail pending disposal of the bail application. The Court emphasized maintaining judicial discipline and adhering to the statutory provisions of the Cr.P.C.
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1995 (2) TMI 479
Issues Involved:
1. Maintainability of the petition under Section 301 of the Indian Succession Act without probate of the will.
2. Allegations against the respondent for mismanagement and misappropriation of the deceased's estate.
3. Allegations regarding the conduct of the deceased's funeral and subsequent ceremonies.
4. Failure to implement the terms of the will.
Detailed Analysis:
1. Maintainability of the Petition under Section 301 of the Indian Succession Act without Probate of the Will:
The respondent contended that the petition was not maintainable under Section 213 of the Act as the will had not been probated. The petitioners argued that probate was not a condition precedent for the removal of an executor under Section 301. The court held that under Section 211, an executor is the legal representative of the deceased and the property vests in the executor immediately after death. The executor can act in accordance with the will's terms even without probate. Section 213(1) bars the establishment of rights as an executor or legatee without probate, but this does not apply to proceedings for the removal of an executor. Therefore, the petition was maintainable.
2. Allegations Against the Respondent for Mismanagement and Misappropriation of the Deceased's Estate:
The petitioners alleged that the respondent took possession of all movables, including gold jewels and silver articles, without their reference and locked them in a room. The respondent denied these allegations, stating that an inventory was prepared in the presence of the petitioners and that the items were locked with both parties having keys. The court found that the petitioners' evidence was vague and did not establish that the respondent removed any articles. The inventory showed all items, including cash, and there was no material to show that the respondent appropriated any movables for his use.
3. Allegations Regarding the Conduct of the Deceased's Funeral and Subsequent Ceremonies:
The petitioners and witnesses alleged that the respondent did not give a first-class funeral to the deceased and used a corporation hearse. The respondent provided evidence that he engaged M/s. Snaize Brothers, reputed undertakers, and made necessary arrangements, including a luxury bus for mourners. The court found that while there were some lapses in the arrangements, the respondent did not stint on expenses and spent more than what was provided by the deceased. The petitioners, also being executors, shared the obligation to carry out the deceased's wishes and could not solely blame the respondent.
4. Failure to Implement the Terms of the Will:
The petitioners alleged that the respondent failed to implement the will's terms. The respondent argued that the will had not been probated, making it difficult to act. The court noted that the petitioners and respondent had initially filed for probate, but the petition was dismissed for default due to a lack of interest from the petitioners. The respondent had since filed another petition for probate. The court found that the failure to implement the will was not entirely the respondent's fault and that all executors, including the petitioners, were to blame for the delays.
Conclusion:
The court concluded that no strong grounds warranted the removal of the respondent as an executor. The petitioners and respondent were expected to cooperate to ensure the will's implementation. The petition was dismissed, with a note that if the executors continued to fail in their duties, the removal of all executors might be considered in separate proceedings. The petition was dismissed with no costs.
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1995 (2) TMI 478
Issues:
Computation of the period of 90 days for compulsive bail under Section 167(2) of the Code of Criminal Procedure.
Entertainment of bail petition after the challan was filed.
Analysis:
1. The judgment deals with the interpretation of Section 167(2) of the Code of Criminal Procedure regarding the period for compulsive bail. The High Court granted bail to the Accused-Respondents based on the expiry of 90 days from the date of their detention and the non-filing of the challan within that period. The Supreme Court noted that the High Court erred in computing the 90-day period. The Court clarified that the 90-day period should exclude one day on either side, as per Sections 9 and 10 of the General Clauses Act. In this case, the 90th day coincided with the date the challan was filed, indicating that the High Court's computation was incorrect.
2. Another issue addressed in the judgment is the timing of entertaining a bail petition after the challan is filed. The Supreme Court referred to the Sanjay Dutt case and emphasized that the right to compulsive bail must be examined on the date the court considers the bail application, not merely on the date of petition filing. In this case, when the High Court entertained the bail petition and granted bail to the Accused-Respondents, the challan had already been filed. Therefore, the Court concluded that the right to compulsive bail was not available at that time.
3. Consequently, the Supreme Court allowed the appeal, overturning the High Court's order granting bail to the Accused-Respondents. The matter was remitted back to the High Court for reconsideration of the bail application on its merits. The Accused-Respondents were granted bail for four weeks from the date of the judgment. The High Court was instructed to inform the Accused-Respondents to present their bail application if desired and to act according to the High Court's decision.
In conclusion, the Supreme Court clarified the computation of the 90-day period for compulsive bail and emphasized the importance of examining the availability of the right to bail at the time of the court's consideration. The judgment highlights the significance of adhering to procedural requirements and legal principles in granting bail in criminal cases.
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1995 (2) TMI 477
Issues:
1. Whether employees of a nationalized Bank can be considered 'public servants' under Section 21 of the Indian Penal Code.
2. Whether the delay in the trial process warrants quashing of the prosecution.
Analysis:
1. The primary issue in this case revolves around determining whether employees of a nationalized Bank can be classified as 'public servants' under Section 21 of the Indian Penal Code. The respondent, a Branch Manager of Bank of India, faced charges under various sections of the IPC and the Prevention of Corruption Act. The respondent contended that he was not a 'public servant' and thus could not be tried by a Special Court. The Calcutta High Court, relying on a previous judgment, quashed the prosecution, stating that the respondent did not fall under the definition of a 'public servant.' However, the Supreme Court, in a detailed analysis, established that nationalized banks are 'Corporations' established by a Central Act and owned and controlled by the Central Government. Therefore, employees of such banks, including the respondent, are deemed 'public servants' under Section 21 of the IPC.
2. The second issue pertains to the delay in the trial process and whether it justifies quashing the prosecution. The respondent argued that the delay in the case, which began in 1985, warranted quashing of the prosecution due to the right to a speedy trial being a fundamental right. However, the Supreme Court disagreed, noting that the delay was not solely attributable to the prosecution but that the respondent had also significantly contributed to it. The Court emphasized that the respondent could not benefit from his own actions causing delay and use the right to a speedy trial as a shield to escape prosecution. Consequently, the Court ruled in favor of allowing the trial to proceed expeditiously, setting aside the High Court's judgment and directing the trial court to conclude the case promptly.
In conclusion, the Supreme Court clarified the status of employees of nationalized banks as 'public servants' under Section 21 of the IPC and rejected the plea to quash the prosecution based on delay, emphasizing the importance of concluding the trial efficiently.
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1995 (2) TMI 476
Issues Involved:
1. Validity of land acquisition for the appellant society.
2. Allegations of commercial venture and misuse of power.
3. Compliance with statutory requirements under the Land Acquisition Act.
4. Role of intermediaries in influencing the acquisition process.
5. Prior approval and public purpose under Section 3(f)(vi) of the Act.
6. Restoration of land to original owners.
Detailed Analysis:
1. Validity of Land Acquisition for the Appellant Society:
The appellant, a House Building Co-operative Society, sought land acquisition for its members. The State Government approved the scheme and initiated acquisition proceedings. However, the High Court quashed these steps, deeming the acquisition a colorable exercise of power and not for a public purpose.
2. Allegations of Commercial Venture and Misuse of Power:
The High Court found that the Society indulged in a commercial venture by selling sites, rather than allotting them to bona fide members. The involvement of M/s. S.R. Constructions, which acted as a middleman, further indicated misuse of statutory power by influencing the Government for land acquisition.
3. Compliance with Statutory Requirements under the Land Acquisition Act:
The acquisition process did not comply with the statutory requirements of the Land Acquisition Act. The High Court noted that the procedure adopted was likely to defeat schemes under the Bangalore Development Authority Act. The Society's agreement with M/s. S.R. Constructions to secure land acquisition through Government notifications was deemed irregular.
4. Role of Intermediaries in Influencing the Acquisition Process:
M/s. S.R. Constructions played a dubious role by negotiating with landowners and ensuring Government notifications for land acquisition. This involvement led to the conclusion that the statutory power was exercised due to extraneous considerations, not based on objective evaluation by the Government.
5. Prior Approval and Public Purpose under Section 3(f)(vi) of the Act:
The Court emphasized that the definition of "public purpose" under Section 3(f)(vi) requires prior Government approval for housing schemes by cooperative societies. The appellant society's scheme lacked such prior approval, rendering the acquisition invalid. The Court highlighted that prior approval is not a mere formality but a condition precedent for exercising acquisition power.
6. Restoration of Land to Original Owners:
The Court directed that, following the quashing of the acquisition proceedings, the possession of the lands should be restored to the original owners. The owners are required to refund any compensation received. This direction applies irrespective of whether the landowners challenged the acquisition.
Conclusion:
The Supreme Court upheld the High Court's decision, dismissing the appeals and emphasizing the necessity of prior Government approval for land acquisition under Section 3(f)(vi). The involvement of intermediaries and lack of compliance with statutory requirements invalidated the acquisition process. The Court ordered the restoration of land to the original owners, reinforcing the need for transparency and adherence to legal procedures in land acquisition cases.
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1995 (2) TMI 475
The Supreme Court allowed the appeal against an interim order directing the confirmation and salary payment of a Forest Guard without proper adjudication. The High Court's order was set aside, and the case was remanded for further consideration.
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1995 (2) TMI 474
... ...
... ... ..... gh, JJ. ORDER Appeal dismissed.
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1995 (2) TMI 473
The Supreme Court dismissed the Special Leave Petition (Civil) No. 181 of 1989 filed by Bharat Nandalal Kalyani against CEGAT Order No. 248/88-WRB. The Court upheld the Appellate Tribunal's decision that delay in filing appeal without bona fides is not condonable. Additionally, the Tribunal ruled that notice served by registered post is considered valid and that sworn affidavit prevails over inconsistent statements in applications.
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1995 (2) TMI 472
Issues Involved:
1. Jurisdiction of the National Consumer Disputes Redressal Commission (National Commission) under the Consumer Protection Act, 1986 (1986 Act) to adjudicate claims for compensation arising out of motor vehicle accidents.
2. Applicability of the Motor Vehicles Act, 1988 (1988 Act) and the exclusive jurisdiction of the Motor Accident Claims Tribunal (Claims Tribunal) under the 1988 Act.
3. The legal standing (locus standi) of the Consumer Protection Council to file the claim.
Issue-wise Detailed Analysis:
1. Jurisdiction of the National Commission:
The primary issue was whether the National Commission, constituted under Section 20 of the 1986 Act, had the jurisdiction to adjudicate a claim for compensation arising from a motor vehicle accident. The court examined the relevant provisions of the 1986 Act, including Section 2(c) which defines a "complaint," Section 2(d) which defines a "consumer," and Section 2(o) which defines "service." The court noted that the 1986 Act was enacted to provide better protection to consumers and for the establishment of consumer councils and authorities for the settlement of consumer disputes.
2. Applicability of the Motor Vehicles Act, 1988:
The court analyzed the provisions of the 1988 Act, specifically Chapter XII which deals with Claims Tribunals. Section 165 of the 1988 Act allows State Governments to constitute Claims Tribunals for adjudicating claims for compensation in respect of accidents involving motor vehicles. Section 175 explicitly states that no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal.
The court emphasized that the 1988 Act, being a special law concerning claims arising out of motor vehicle accidents, would prevail over the general provisions of the 1986 Act. The court concluded that the claim for compensation due to the motor vehicle accident involving the deceased should have been filed before the Claims Tribunal under the 1988 Act, not the National Commission.
3. Legal Standing of the Consumer Protection Council:
The appellant contested the claim on the grounds that the Consumer Protection Council had no locus standi to maintain the action. The court did not delve deeply into this issue as it primarily focused on the jurisdictional question. However, it was implied that even if the Council had the standing, the appropriate forum for the claim was the Claims Tribunal under the 1988 Act.
Conclusion:
The court held that the National Commission did not have jurisdiction to entertain the claim for compensation arising out of the motor vehicle accident. The 1988 Act provided a specific forum for such claims, and the general provisions of the 1986 Act could not override this. The court noted that the National Commission had previously held in another case that it had no jurisdiction over claims falling under the exclusive jurisdiction of the Railway Claims Tribunal, reinforcing the principle that specialized tribunals have exclusive jurisdiction over specific types of claims.
Final Order:
The court allowed the appeal, reversed the order of the National Commission, and held that the National Commission had no jurisdiction to award compensation in this case. However, the court directed that the compensation already paid to the widow and child of the deceased under its earlier order should not be recovered, and no costs were ordered.
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1995 (2) TMI 471
Issues:
Dispute over forged signature on a cheque leading to reimbursement claim by the respondent against the appellant bank. Jurisdiction of writ petition under Article 226 for banking disputes.
Analysis:
The case involved a dispute between a nationalized bank, referred to as the appellant-bank, and a company operating a current account with the bank. The company claimed that a cheque drawn on their account, bearing a forged signature of their Managing Director, was encashed by the bank, resulting in a debit of Rs. 95,000. The company demanded reimbursement from the bank, alleging the signature was forged. The bank contested the claim, stating the signature was genuine and proper procedures were followed. The company filed a writ petition seeking a direction to reverse the debit entry or credit the amount with interest. The High Court, in an interim order, directed the bank to credit the amount to the company's account, which the bank complied with. However, the bank appealed against this order.
The bank argued that the dispute involved liability under banking laws, which should be resolved through a civil suit, not a writ petition. It contended that the signature was not proven to be forged and proper banking procedures were followed. The company argued that due to the forged signature, the bank was liable to reimburse the amount, citing relevant court decisions. The Supreme Court noted the serious factual dispute and criticized the High Court for granting an interim order without a prima facie case. The Court emphasized the need to consider the balance of convenience and public interest in granting interim relief.
The Supreme Court allowed the bank's appeal, setting aside the interim order directing the bank to credit the amount. The Court directed the company to refund the credited amount to the bank within a month. Failure to comply would lead the High Court to enforce the undertaking provided by the company. The Court stressed the importance of early disposal of the writ petition. No costs were awarded in the matter. The judgment highlighted the need for caution in granting interim orders that effectively provide the main relief sought in a petition without proper consideration of all relevant factors.
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1995 (2) TMI 470
The Supreme Court granted leave in a case involving the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964. The Explanation to Section 17 creates a presumption against dealers, allowing demands to be raised by the Krishi Utpadan Mandi Samiti. Dealers must pay market fees unless they can prove the sale did not occur within the market area. The appeals were disposed of accordingly.
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1995 (2) TMI 469
Issues Involved:
1. Constitutional validity of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Whether Section 18 violates Articles 14 and 21 of the Constitution of India.
Summary:
Issue 1: Constitutional Validity of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
The appeals were filed by the State of Madhya Pradesh challenging the High Court's decision that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is unconstitutional. Section 18 states: "Section 438 of the Code not to apply to persons committing an offence under the Act: Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act." Section 438 of the Code of Criminal Procedure provides for anticipatory bail, which is not available for offences under the said Act.
Issue 2: Violation of Articles 14 and 21 of the Constitution
Article 14:
The Court examined whether the denial of anticipatory bail for offences under the said Act violates Article 14. The Court noted that the offences under the Act form a distinct class due to their connection with the practice of "Untouchability" as addressed by Article 17 of the Constitution. The exclusion of Section 438 is justified by the social conditions and the potential for perpetrators to intimidate victims. The Statement of Objects and Reasons of the Act highlights the vulnerability and historical oppression of Scheduled Castes and Scheduled Tribes, justifying special provisions to protect them. Therefore, the denial of anticipatory bail under Section 18 is not considered violative of Article 14.
Article 21:
The Court also considered whether Section 18 violates Article 21, which protects life and personal liberty. The Court found that Section 438 of the Code of Criminal Procedure, introduced in 1973, is not an integral part of Article 21. The provision for anticipatory bail is a statutory right, not a constitutional one. The Court referenced the case of Kartar Singh v. State of Punjab, where a similar provision under the Terrorists and Disruptive Activities (Prevention) Act, 1987 was upheld. Given the historical context and social attitudes leading to offences against Scheduled Castes and Scheduled Tribes, the denial of anticipatory bail under Section 18 is justified and does not violate Article 21.
Conclusion:
The Court concluded that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 does not violate Articles 14 and 21 of the Constitution. The appeals were allowed, and there was no order as to costs.
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1995 (2) TMI 468
Issues Involved:
1. Correctness of the respondent's recorded date of birth.
2. Validity of the Tribunal's decision to alter the respondent's date of birth.
3. Applicability of the Supreme Court's judgment in Union of India v. Harnam Singh.
Issue-wise Detailed Analysis:
1. Correctness of the Respondent's Recorded Date of Birth:
The respondent entered Railway service on 1.7.1955, declaring his date of birth as 6.9.1930, which was recorded in his service record. Based on this date, the Railway Administration ordered his retirement effective from 30th September 1988, upon reaching the age of 58. The respondent contested this, claiming his correct date of birth was 4.9.1934, thus extending his retirement to 30th September 1992. The Central Administrative Tribunal (CAT) directed the Railway Administration to review the documents and provide the respondent an opportunity to present evidence. Upon review, the Chief Personnel Officer (C.P.O.) upheld the original date of birth, citing various documents where the respondent had consistently recorded 6.9.1930, including option forms and Provident Fund withdrawal forms. The respondent's claim, supported by school leaving certificates issued in 1988, was rejected due to inconsistencies and lack of timely action.
2. Validity of the Tribunal's Decision to Alter the Respondent's Date of Birth:
The Tribunal quashed the C.P.O.'s decision and directed the Railway Administration to alter the respondent's date of birth to 4.9.1934, granting him all consequential benefits. The Tribunal criticized the C.P.O. for not complying with its earlier directive correctly and found fault with the reliance on the Railway Board's 1972 letter, which set a deadline for date of birth corrections. The Tribunal referenced a Full Bench judgment stating that the 1972 letter did not have the force of law, thus allowing the respondent's late application for correction.
3. Applicability of the Supreme Court's Judgment in Union of India v. Harnam Singh:
The appellant's counsel argued that the Tribunal failed to adhere to the Supreme Court's binding judgment in Union of India v. Harnam Singh, which emphasized the importance of timely correction requests for date of birth. The Supreme Court in Harnam Singh held that government servants must seek corrections without unreasonable delay and that the general principle of laches applies. The Tribunal acknowledged the Harnam Singh judgment but chose to consider the case on its merits, which the Supreme Court found objectionable. The Supreme Court reiterated that the law laid down in Harnam Singh was binding and applicable, emphasizing the need for timely action and the scrutiny of stale claims.
Conclusion:
The Supreme Court found that the respondent had consistently recorded his date of birth as 6.9.1930 and failed to provide a satisfactory explanation for the delayed correction request. The Tribunal's decision to alter the date of birth was deemed erroneous, as it did not align with the principles established in Harnam Singh. Consequently, the Supreme Court set aside the Tribunal's order, denying the respondent's claim for date of birth correction and the associated benefits. The appeal was allowed, and the Tribunal's directions were invalidated.
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1995 (2) TMI 467
Issues:
- Alleged infringement of fundamental right under Article 16 by delayed promotion in Indian Administrative Service.
- Consideration of appellant's case by Selection Committee in various years.
- Reasons for non-recommendation of appellant by Selection Committee.
- Supersession of appellant by juniors in promotion recommendations.
- Examination of service records and proceedings of Selection Committee.
- Justification of promotion based on 1981 recommendation.
Analysis:
The appellant contended that his fundamental right under Article 16 was violated due to delayed promotion in the Indian Administrative Service compared to his juniors. The case originated from a writ petition transferred to the Central Administrative Tribunal, Gauhati Bench, where the State Government raised a preliminary objection regarding the delay in filing the application, leading to its dismissal. The Supreme Court decided to review the case's merits instead of dismissing it solely on the grounds of delay, emphasizing the importance of examining the service records and Selection Committee proceedings.
The records revealed that the appellant's name was considered by the Selection Committee in multiple years, with reasons for non-recommendation cited each time. In 1974, the appellant was not recommended due to pending disciplinary proceedings related to integrity issues, which were later dropped. The Selection Committee also noted adverse remarks in the appellant's Annual Confidential Reports (ACRs) regarding his work speed and past censure. Despite the dropping of the disciplinary proceeding, the non-recommendation in 1974 was deemed justified based on valid reasons.
In subsequent years, the appellant was not recommended for promotion due to fair performance, lack of experience, and the need for better results. The Selection Committee's decisions were based on comparative assessments with other candidates, including juniors who were rated higher. While the appellant was superseded by juniors in some instances, the Court found no injustice as the juniors' assessments were superior, and no unfairness or arbitrariness was observed in the Selection Committee's proceedings.
The final consideration in 1980 resulted in the recommendation of four candidates based on their assessments as "very good." The appellant, rated as "good," was not recommended due to the limit on the number of recommendations. The Court concluded that no illegality or injustice occurred in the Selection Committee's decisions, leading to the appellant's promotion in 1981. Consequently, the appeal was dismissed, upholding the promotion based on the 1981 recommendation without any violation of Article 16.
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1995 (2) TMI 466
Issues Involved:
1. Nature of the transaction (deposit vs. loan)
2. Limitation period for filing the suit
3. Impact of acknowledgment by a retired partner
4. Plaintiff's status as a money lender
5. Whether the money was given to the firm or partners
Detailed Analysis:
1. Nature of the Transaction (Deposit vs. Loan):
The court examined whether the transaction between the plaintiff and the defendant was a deposit or a loan. The distinction is crucial as it affects the limitation period for filing the suit. The court noted that a loan involves an immediate obligation to repay, while a deposit does not. The court referenced several precedents, including *Md. Akbar Khan v. Attar Singh* and *V.R.S. Annamalai v. Veerappa*, to elucidate this distinction. The court concluded that the transaction was a deposit, as the plaintiff regularly deposited and withdrew money, and the defendant credited interest annually. The relationship was akin to that of a depositor and a depositee, not a creditor and debtor.
2. Limitation Period for Filing the Suit:
The court held that since the transaction was a deposit, Article 22 of the Limitation Act, 1963, applies, which provides a three-year limitation period from the date of demand. The demand was made on 2-12-1973, and the suit was filed on 15-12-1973, making it within the limitation period. The court also noted that part payments made by the defendants on 21-12-1970 and 28-1-1971 provided a fresh cause of action, further supporting the suit's timeliness.
3. Impact of Acknowledgment by a Retired Partner:
The defendants argued that the acknowledgment of liability by Lalit Kumar on 6-7-1970 was invalid as he had retired from the partnership on 31-3-1970. The court held that since no public notice of his retirement was given, as required under Section 72 of the Indian Partnership Act, the acknowledgment was binding on the firm. The court emphasized that the firm could not take advantage of its own failure to give public notice, and thus, the acknowledgment by Lalit Kumar was valid and binding.
4. Plaintiff's Status as a Money Lender:
The defendants contended that the plaintiff was a money lender and thus not entitled to interest and costs. The court rejected this argument, stating that the initial transaction was a deposit, not a loan. Even if the plaintiff later became a money lender, it did not affect the nature of the original transaction. The court held that the Money Lenders Act did not apply, as the plaintiff was not a money lender at the time of the initial deposit.
5. Whether the Money Was Given to the Firm or Partners:
The court addressed the issue of whether the money was given to the firm or its partners. It held that even if the money was given to a partner, it was for and on behalf of the firm. The court noted that partners have implied authority to receive payments for the firm. Therefore, the transaction was considered as one with the firm, and the firm was liable for the amount.
Conclusion:
The court dismissed the appeal, upholding the trial court's judgment that the transaction was a deposit, the suit was within the limitation period, the acknowledgment by Lalit Kumar was binding on the firm, and the plaintiff was not a money lender at the time of the initial deposit. The court awarded costs to the plaintiffs.
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1995 (2) TMI 465
Issues Involved:
1. Auction and Payment Terms
2. Rescheduling of Payment
3. Non-Compliance with Payment Terms
4. Legal Actions and Court Orders
5. Contempt of Court
Detailed Analysis:
1. Auction and Payment Terms:
On 8.10.1980, the Delhi Development Authority (DDA) auctioned a Commercial Tower Plot in Jhandewalan, New Delhi, which was won by Skipper Construction Co. (P) Ltd. (Skipper) with a bid of Rs. 9.82 crores. Skipper deposited 25% of the bid amount, and the DDA confirmed the bid on 14.10.1980. Skipper was required to pay the remaining 75% within 90 days as per the auction conditions.
2. Rescheduling of Payment:
The Government of India directed the DDA to reschedule the recovery of the remaining 75% with interest. Consequently, Skipper entered into a license agreement on 11.8.1987, paying 50% of the original bid and securing the rest through a bank guarantee. Installments were to be paid every six months, starting from 15.9.1987.
3. Non-Compliance with Payment Terms:
Skipper failed to comply with the payment schedule. Despite several extensions and indulgences, including a deferred recovery order from the Lt. Governor on 4.10.1988, Skipper did not fulfill its payment obligations. The DDA recovered a partial amount by encashing the bank guarantee but faced continuous non-payment issues from Skipper.
4. Legal Actions and Court Orders:
Skipper filed a writ petition in the Delhi High Court in August 1989, seeking relief related to building plans and construction permissions. Various interim orders were passed, including one on 19.3.1990 allowing Skipper to commence construction without depositing dues. Skipper repeatedly sought extensions and failed to comply with court orders, leading to multiple legal actions, including the DDA's Special Leave Petition (SLP) and subsequent orders from the Supreme Court.
5. Contempt of Court:
Despite clear court orders, Skipper continued to violate terms by issuing advertisements and creating third-party rights. The Supreme Court noted deliberate disobedience and willful actions undermining the court's authority. The contemners, Tejwant Singh and Surinder Kaur, were found guilty of criminal contempt for filing a suit (No. 770 of 1993) after the dismissal of their SLP and for creating third-party interests in defiance of the court's order dated 29.1.1991.
Judgment:
The Supreme Court invoked its powers under Article 129 and Article 142 of the Constitution, sentencing Tejwant Singh to six months of simple imprisonment and a fine of Rs. 50,000, and Surinder Kaur to one month of simple imprisonment and a fine of Rs. 50,000. The court also ordered the attachment of properties and bank accounts of the contemners and their immediate family. The sentence of imprisonment was deferred subject to conditions, including furnishing a bank guarantee of Rs. 11 crores and depositing the amount by specified deadlines. The court emphasized the importance of maintaining the judiciary's integrity and the consequences of undermining its authority.
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1995 (2) TMI 464
Issues:
Dispute over forged signature on a cheque leading to reimbursement claim by respondent from the appellant-bank; Writ petition filed in the Bombay High Court seeking reversal of debit entry and reimbursement; Interim order directing appellant-bank to credit the amount pending final adjudication; Appeal against the interim order by the appellant-bank.
Analysis:
The case involved a dispute between a nationalized bank, referred to as the appellant-bank, and a company operating a current account with the bank, referred to as respondent No. 1. The core issue revolved around a bearer cheque drawn on the appellant-bank, allegedly with a forged signature of the Managing Director of respondent No. 1. The respondent claimed that the signature was forged and sought reimbursement of the amount debited from their account based on the cheque. The appellant-bank contested this claim, stating that the signature's authenticity was under investigation and that reimbursement could only be determined through a civil suit, not a writ petition under Article 226 of the Constitution.
In response to the dispute, the respondent filed a Writ Petition in the Bombay High Court, seeking a mandamus to reverse the debit entry and credit the amount back to their account. The High Court, in an interim order, directed the appellant-bank to credit the sum to the respondent's account, considering the prima facie evidence of negligence on the bank's part and the alleged forgery. The appellant-bank, aggrieved by this order, appealed to the Supreme Court.
During the appeal, the appellant-bank argued that the High Court erred in granting the interim order without proper consideration of the disputed facts and the legal complexities involved. The respondent, on the other hand, supported the interim order, citing previous court decisions where banks were held liable for reimbursing amounts debited based on forged signatures. The Supreme Court noted the serious factual dispute and lack of a clear prima facie case for the interim relief granted by the High Court.
Ultimately, the Supreme Court allowed the appeal, setting aside the interim order directing the appellant-bank to credit the amount to the respondent's account. The Court directed the respondent to refund the credited amount within a month, failing which the High Court would enforce the undertaking provided by the respondent. The Court emphasized the need for proper adjudication of the dispute through a civil proceeding rather than a writ petition, highlighting the importance of evidence and due process in resolving such banking disputes.
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1995 (2) TMI 463
Issues:
1. Interpretation of Section 19(2) of the Prevention of Food Adulteration Act.
2. Examination of Rule 12A of the Prevention of Food Adulteration Rules.
3. Burden of proof on the accused in establishing the defense under Section 19(2).
4. Consideration of evidence regarding the existence of the manufacturing firm.
5. Application of the law to the facts of the case.
Detailed Analysis:
1. The appellant was tried for an offence under Section 7(1) read with Section 16(1A)(a)(i) of the Prevention of Food Adulteration Act. The accused claimed defense under Section 19(2) of the Act, which states that a vendor shall not be deemed to have committed an offence if certain conditions are met, including purchasing the article with a written warranty in the prescribed form. The Magistrate acquitted the accused based on this defense.
2. The State appealed the acquittal, and the High Court reversed the decision, convicting the appellant. The High Court found that the manufacturing firm mentioned by the accused was non-existent, rendering the defense under Section 19(2) invalid. Rule 12A of the Prevention of Food Adulteration Rules requires a warranty in a prescribed form to be provided when selling food items.
3. The Supreme Court analyzed the requirements of Section 19(2) and Rule 12A in detail. It emphasized that the accused must prove the purchase of the article with a written warranty from a manufacturer, distributor, or dealer. In this case, the accused presented a bill containing the necessary warranty, satisfying the requirements of the law. The Court clarified the burden of proof on the accused in establishing the defense under Section 19(2).
4. The Court addressed the issue of the existence of the manufacturing firm, M/s. Tajus Productions, which was contested during the trial. Despite doubts raised about the firm's existence, the Court considered the circumstances under which the accused purchased and sold the article. It highlighted that the accused acted in good faith based on the representations made by the firm's representative.
5. Ultimately, the Supreme Court held that the accused had fulfilled the requirements of Section 19(2) and Rule 12A, thereby discharging the necessary burden of proof. The Court found that the accused had acted in accordance with the law and in good faith, selling the article in the same condition as purchased. Consequently, the Court set aside the conviction and allowed the appeal, ordering the refund of any fine paid and discharging the bail bonds of the appellant.
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1995 (2) TMI 462
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... ... ..... gh, JJ. ORDER Appeal dismissed.
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