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1982 (3) TMI 284
Issues Involved:
1. Whether the parking area and the link road adjacent to Cochin Aerodrome are "public places" as defined under Section 2(24) of the Motor Vehicles Act, 1939.
2. Whether the Kerala State Road Transport Corporation (KSRTC) requires a permit under Section 42 of the Motor Vehicles Act to operate buses through the link road and parking area.
3. Whether the KSRTC has a right to obtain a permit under Chapter IVA of the Motor Vehicles Act for operating stage carriage services on the link road and parking area.
Issue-Wise Detailed Analysis:
1. Definition of "Public Place":
The primary contention of the petitioners was that the parking area and the link road are "public places" and thus require a permit under Section 42 of the Motor Vehicles Act. The court examined the definition of "public place" under Section 2(24) of the Act, which states: "Public place means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
The court found that the Cochin Aerodrome, including the link road and parking area, is a Naval Air Station under the control of the Defence Department, with restricted access granted by the Civil Aviation Department. The public does not have a right of access to these areas; access is contingent upon permission, primarily for passengers holding flight tickets. Therefore, the court held that these areas do not qualify as "public places" under the Act.
2. Requirement of Permit under Section 42:
Section 42(1) of the Motor Vehicles Act stipulates that no transport vehicle shall be used in any public place without a permit. Since the court determined that the link road and parking area are not "public places," it concluded that KSRTC does not require a permit to operate buses in these areas. The court stated, "Absence of a permit to ply buses of the first respondent along the link road or to take the buses to the parking area in the aerodrome cannot be a violation of Section 42(1) of the Act."
3. Right to Obtain Permit under Chapter IVA:
Chapter IVA of the Motor Vehicles Act provides additional privileges to State Transport Undertakings, including the preparation and publication of a scheme of road transport service. The court noted that the term "route" is defined in Section 2(28A) as "a line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another." Since the link road and parking area are not highways, they cannot be included in a notified route or part thereof.
The court further explained that if a road or place is not a "public place" or part of a "highway," no permit is necessary for operating buses in that area. The court concluded, "The first respondent does not require any permit to operate buses along the link road and to the parking place in the aerodrome. What is required is only permission from the Civil Aviation Department, and that permission has been granted."
Conclusion:
The court dismissed the petition, holding that the link road and parking area adjacent to Cochin Aerodrome are not "public places" under the Motor Vehicles Act, and therefore, KSRTC does not require a permit to operate buses in these areas. The court found no illegality or violation of the Act in KSRTC's operations and dismissed the petition without costs.
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1982 (3) TMI 283
Issues:
Petition to quash criminal proceedings under sections 79 and 80 of the Karnataka Police Act based on the game of Rummy being considered a game of skill rather than chance.
Analysis:
The petitioners sought to quash criminal proceedings initiated against them under sections 79 and 80 of the Karnataka Police Act, arguing that the game of Rummy, for which they were accused, required skill rather than being entirely based on chance. The case revolved around the police report alleging gambling at a recreation association, where the petitioners were found playing Rummy with stake money. The petitioners contended that Rummy was a game of skill, not chance, and thus the proceedings should be quashed. The court referred to a Supreme Court judgment stating that Rummy involves skill in card memorization and strategy, distinguishing it from games of pure chance. Consequently, the court found the petitioners' argument well-founded, as Rummy was primarily a game of skill with an element of chance akin to card games like bridge. This ruling was applied to the present case, leading to the conclusion that the criminal proceedings were an abuse of court process and should be quashed.
The government pleader argued that evidence of gambling and profit-making from Rummy could sustain the charges, citing the Supreme Court's reference to potential offenses if gambling or profit was involved. However, the court rejected this argument, emphasizing that the game of Rummy itself was not gambling but a skill-based activity. The court noted that the mere collection of commission by the association president for allowing Rummy games did not transform the premises into a gambling house or constitute an offense under the Police Act. Drawing parallels with fees charged for other club activities, the court reasoned that collecting fees for Rummy did not indicate illegal gambling activities. Ultimately, the court allowed the revision petition, setting aside the process against the accused and quashing the criminal proceedings, as the allegations did not establish any offense under the Police Act.
In conclusion, the judgment focused on the distinction between games of skill and chance, particularly regarding the game of Rummy in the context of criminal proceedings under the Karnataka Police Act. The court's analysis centered on the skill element in Rummy, rejecting the notion of it being a game of pure chance. Additionally, the court scrutinized the evidence presented and concluded that the collection of commission for Rummy games did not amount to illegal gambling activities, leading to the decision to quash the criminal proceedings against the petitioners.
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1982 (3) TMI 282
Issues Involved:
1. Legality of the Rajasthan Public Service Commission's rejection of the appellant's application for the post of Lecturer in Forensic Medicine.
2. Eligibility criteria for the post of Lecturer in Forensic Medicine.
3. Recognition of the appellant's postgraduate degree from the University of Bihar.
4. Appellant's experience in Medico-legal work.
Issue-wise Detailed Analysis:
1. Legality of the Rajasthan Public Service Commission's rejection of the appellant's application for the post of Lecturer in Forensic Medicine:
The appellant challenged the legality of the Rajasthan Public Service Commission's action in issuing a communication on July 21, 1973, stating that the appellant was not eligible for recruitment to the post of Lecturer in Forensic Medicine due to a lack of necessary academic qualifications. The learned Single Judge of the High Court allowed the writ petition, holding that the Commission had acted illegally. However, the Division Bench of the High Court set aside this order and dismissed the writ petition. The Supreme Court, upon reviewing the case, found that the Commission had indeed acted illegally by excluding the appellant from consideration based on an erroneous interpretation of the qualifications required.
2. Eligibility criteria for the post of Lecturer in Forensic Medicine:
Clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances prescribes the qualifications for the post of Lecturer in Forensic Medicine, which include:
1. A basic University Degree or equivalent qualification entered in the Schedules to the Indian Medical Council Act, 1956.
2. Registration under the State/Central Medical Registration Act.
3. Post-graduate qualification in the concerned subject.
4. Two years' experience of Medico-legal work.
The appellant possessed an M.B.B.S. degree from the University of Rajasthan and was duly registered under the Medical Registration Act. The Supreme Court found that the appellant met all the prescribed qualifications, including the postgraduate qualification and the required experience.
3. Recognition of the appellant's postgraduate degree from the University of Bihar:
The appellant held an M.D. degree in Forensic Medicine from the University of Bihar, which is included in the Schedule to the Indian Medical Council Act, 1956, as a recognized degree. The Supreme Court emphasized that a postgraduate medical degree awarded by a statutory Indian University and recognized by the Indian Medical Council must be accepted as valid throughout the country. The Court held that the Division Bench of the High Court erred in requiring specific recognition of the appellant's degree by the University of Rajasthan, especially since the University of Rajasthan did not conduct postgraduate examinations in Forensic Medicine.
4. Appellant's experience in Medico-legal work:
The respondents contended that the appellant did not satisfy the requirement of two years' Medico-legal work experience. However, the Supreme Court found this contention to be without merit. The appellant had provided certificates from the Principal and Heads of Departments of Forensic Medicine in the concerned Medical Colleges, which confirmed that he had more than two years of Medico-legal work experience prior to the last date for receipt of applications.
Conclusion:
The Supreme Court concluded that the appellant was fully qualified for the post of Lecturer in Forensic Medicine and that the Commission had acted illegally in excluding him from consideration. The Court allowed the appeal, set aside the judgment of the Division Bench of the High Court, and restored the judgment of the learned Single Judge, with the modification that the Commission should treat the appellant as a fully qualified candidate. The appellant was awarded costs throughout from respondents 1 and 2 in equal shares.
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1982 (3) TMI 281
Issues Involved:
1. Validity of the impugned notification under the Sugarcane (Control) Order, 1966.
2. Power of the Central and State Governments to fix minimum price and rebate for sugarcane.
3. Reasonableness and fairness of the prescribed rebate for binding material.
4. Alleged violation of freedom of trade under Article 19(1)(g) of the Constitution.
Issue-Wise Analysis:
1. Validity of the Impugned Notification:
The notification dated September 3, 1980, issued by the State of Uttar Pradesh with the permission of the Union of India, allowed a rebate of 0.625 kg per quintal for binding material in sugarcane bundles. The petitioners challenged this notification, arguing that it was based on a printing error and was not justified.
2. Power of the Central and State Governments:
Clause 4 of the Sugarcane (Control) Order, 1966, empowers the Central Government or a State Government, with the concurrence of the Central Government, to fix the minimum price of sugarcane. Clause 4A introduced in 1978, allows a rebate for binding material up to 0.625 kg per quintal. The Court noted that the power to fix minimum price and rebate has been exercised since 1968, and the purpose behind the rebate is to ensure that the price paid for sugarcane does not include the weight of the binding material.
3. Reasonableness and Fairness of the Prescribed Rebate:
The petitioners argued that the prescribed rebate of 0.625 kg per quintal was arbitrary and unrelated to trade practices, suggesting that the actual weight of binding material was higher. The Court examined the historical context and evidence, including the National Sugar Institute's survey, which supported the 0.625 kg rebate. The Court found that the rebate was determined by the law of averages and was in force for over a quarter of a century, thus not arbitrary or unrealistic.
4. Alleged Violation of Freedom of Trade:
The petitioners contended that the notification restricted their freedom of trade under Article 19(1)(g) of the Constitution. The Court held that the restriction did not directly and proximately interfere with the exercise of freedom of trade. Even if it did, the restriction was reasonable and imposed in the interest of the general public, as it protected sugarcane growers from exploitation by powerful sugar producers. The Court emphasized that the restriction ensured fair pricing and prevented fraud, thus serving the public interest.
Conclusion:
The Court dismissed the petitions, upholding the validity of the impugned notification and the prescribed rebate for binding material. The Court found that the power to fix minimum price and rebate was lawfully exercised, the rebate was reasonable and fair, and the restriction on trade was justified in the public interest. The petitions were dismissed with costs.
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1982 (3) TMI 280
Issues:
Penalty under section 271(1)(c) of the IT Act, 1961 for the assessment year 1968-69 based on undisclosed cash credits in the assessee's accounts.
Analysis:
The case involved a reference on a case stated under section 256(1) of the IT Act, 1961 regarding the assessment year 1968-69. The assessee, a registered firm engaged in the business of grains, kirana, and oil, had undisclosed cash credits in its accounts. The Income Tax Officer (ITO) assessed Rs. 10,590 as income from undisclosed sources due to the unexplained cash credits. The assessee did not appeal against this assessment, leading to penalty proceedings under section 271(1)(c) of the IT Act, 1961. The assessee, citing inability to produce evidence for the cash credits, accepted the addition to avoid further complications. The ITO and the Income Tax Appellate Tribunal (ITAT) viewed this as a failure to discharge the burden of proof, resulting in the penalty imposition.
The main issue was whether the penalty levied under section 271(1)(c) was sustainable. The Revenue contended that the assessee had admitted concealment of income, shifting the burden to prove otherwise. However, the Court disagreed, noting that the assessee did not admit to concealing income but acknowledged the cash credits without evidence due to inability to call the concerned parties. The Court distinguished a prior case where an assessee admitted concealed income, unlike the present case. In the previous case, the addition was treated as concealed business income, unlike the undisclosed sources in the current matter.
Ultimately, the Court held that the assessee's actions did not amount to admitting concealment of income, leading to the conclusion that the penalty was not sustainable. The decision was made in favor of the assessee, and the Commissioner was directed to pay the costs.
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1982 (3) TMI 279
Issues Involved:
1. Whether the bonds of matrimony inhibit a prosecution for breach of trust between spouses, particularly regarding the wife's dowry.
2. Whether the High Court has the power in its inherent jurisdiction to quash the police investigative process before it reaches a Court of law for trial.
Detailed Analysis:
Issue 1: Matrimony and Prosecution for Breach of Trust
Ownership of Property by Hindu Wife:
The judgment unequivocally states that a Hindu wife can own property separately from her husband during the subsistence of the marriage. The court rejected the argument that a Hindu wife cannot own property separately from her husband, considering it untenable and archaic. The court emphasized that the concept of Stridhana (property owned by a Hindu woman) has been recognized in Hindu law since ancient times.
Dowry as Stridhana:
The court held that dowry and traditional presents given at the time of marriage are typically considered Stridhana and thus the exclusive property of the bride. The court noted that the Hindu Succession Act and the Hindu Marriage Act do not erode the concept of Stridhana. Instead, these laws affirm the individual property rights of Hindu women.
Entrustment of Property:
The court concluded that the concept of entrustment or passing dominion over property between spouses does not arise within the matrimonial home. The court emphasized that the matrimonial home presumes a joint possession and custody of property by the spouses, negating the idea of entrustment. The court held that the essential prerequisites of entrustment or dominion over property, which are necessary for the offense under Section 406 of the Indian Penal Code, are lacking in the context of the matrimonial home.
Relations of the Husband:
The court clarified that the presumption of joint custody and possession of property within the matrimonial home does not extend to the parents-in-law or other relations of the husband. The court held that any entrustment or passing of dominion over the dowry to the relations of the husband must be a subsequent act of conscious volition, which must be specifically alleged and conclusively established by proof.
Issue 2: High Court's Power to Quash Investigative Process
Jurisdiction to Quash Investigation:
The court held that the High Court has the inherent jurisdiction to quash the investigative process in a proper case, even before a charge-sheet is filed in court. The court emphasized that this power should be exercised sparingly and with circumspection, in the rarest of rare cases.
Conditions for Quashing Investigation:
The court summarized the conditions under which the High Court can quash an investigation:
1. When the first information report, even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offense.
2. When the materials subsequently collected in the course of an investigation further disclose no such cognizable offense at all.
3. When the continuation of such investigation would amount to an abuse of power by the police, thus necessitating interference in the ends of justice.
4. When the High Court is convinced that the power of investigation has been exercised mala fide.
Application to Present Case:
The court found that the allegations in the first information report did not amount to any entrustment or passing of dominion over property within the meaning of Section 405 of the Indian Penal Code. The court held that the first information report did not disclose any offense under Section 406, and the subsequent investigation did not reveal any cognizable offense. Consequently, the court quashed the criminal proceedings initiated against the petitioners.
Conclusion:
The court concluded that the bonds of matrimony inhibit a prosecution for breach of trust between spouses regarding the wife's dowry. The High Court has the power to quash the investigative process before it reaches a court of law, provided that the conditions for such quashing are met. The court quashed the criminal proceedings in the present case, as the allegations did not disclose any cognizable offense under Section 406 of the Indian Penal Code.
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1982 (3) TMI 278
Issues Involved:
1. Jurisdiction of Civil Court to entertain a suit filed by a workman in connection with an industrial dispute.
2. Applicability of Article 311 of the Constitution of India.
3. Reference to Labour Court or Tribunal under Section 10 of the Industrial Disputes Act.
4. Interpretation of principles laid down in Premier Automobiles Ltd. v. Kamlakar Shantaram Kadke.
Detailed Analysis:
1. Jurisdiction of Civil Court:
The primary issue was whether a Civil Court has jurisdiction to entertain a suit filed by a workman in connection with an industrial dispute if no steps had been taken by him to have the dispute referred under Section 10 of the Industrial Disputes Act. The court reframed the question to focus on the jurisdiction of Civil Courts in such cases.
The court noted that there is no specific section in the Industrial Disputes Act that expressly bars the jurisdiction of Civil Courts regarding industrial disputes. The matter must be examined on the principle that if a special jurisdiction or tribunal is created, matters within such jurisdiction are impliedly barred from the cognizance of Civil Courts.
2. Applicability of Article 311:
Although initially framed to consider the protection under Article 311 of the Constitution, the court agreed that the distinction between a workman protected by Article 311 and one not so protected is without a difference for the purpose of this issue. Therefore, the applicability of Article 311 was not a deciding factor in this judgment.
3. Reference to Labour Court or Tribunal:
The court examined the provisions of the Industrial Disputes Act, particularly Section 10, which pertains to the reference of industrial disputes to Labour Courts or Tribunals. It was highlighted that the powers of Labour Courts and Tribunals are far more extensive than those of Civil Courts, allowing them to lay down industrial policy and order reinstatement of dismissed workmen, which Civil Courts generally cannot do.
4. Interpretation of Principles in Premier Automobiles Ltd. Case:
The court relied heavily on the principles laid down in Premier Automobiles Ltd. v. Kamlakar Shantaram Kadke, summarizing them as follows:
1. If the dispute is not an industrial dispute, nor does it relate to enforcement of any right under the Act, the remedy lies only in the Civil Court.
2. If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the suitor to choose his remedy.
3. If the industrial dispute relates to the enforcement of a right or obligation created under the Act, the only remedy available is adjudication under the Act.
4. If the right sought to be enforced is created under the Act, the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute.
The court concluded that the dismissal or removal of workmen employed in the State Roadways Departments raises a dispute arising out of rights or liabilities under the general or common law. Therefore, under principle (2), the workman has the alternative remedy to either approach the Civil Court or seek remedies under the Act. Since the workmen in this case chose to approach the Civil Court without resorting to the Act, the Civil Court had jurisdiction to entertain the suit.
Conclusion:
The court held that the Civil Court has jurisdiction to entertain a suit by a workman in connection with an industrial dispute arising out of a right or liability under the general or common law if no steps had been taken by him to resort to the remedy under the Industrial Disputes Act. The appeals were sent back to the learned Single Judge for disposal on merits in light of this conclusion.
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1982 (3) TMI 277
Issues: Undue influence, Capacity to form rational judgment, Inadequacy of consideration, Validity of sale deed
Undue Influence:
The appellant, who had faced ill-treatment from his daughter-in-law's brothers, executed a sale deed of his entire agricultural land, alleging lack of rational judgment at the time. The trial court found the sale deed suspicious, considering the circumstances and grossly inadequate consideration. However, the appellate court reversed this finding, citing the appellant's statement in mutation proceedings that he executed the deed of his own free will. The appellant's counsel argued undue influence due to the death of his son and the behavior of the relatives, but the court upheld the validity of the sale deed, emphasizing the absence of evidence of abuse of confidence by the respondents.
Capacity to Form Rational Judgment:
The appellant's capacity to form rational judgment was a crucial aspect of the case. Despite arguments of undue influence by the appellant's counsel, the court found the appellant's statement in mutation proceedings, made two years after his son's death, to be clear and specific, indicating his independent decision-making ability. The court held that the appellant, aged 56 at the time of the transaction, did not demonstrate mental incapacity or lack of rational judgment, thereby upholding the validity of the sale deed.
Inadequacy of Consideration:
The trial court raised concerns about the inadequacy of consideration in the sale deed, given the circumstances and the appellant's vulnerable state. However, the appellate court clarified that under Section 25 of the Contract Act, a sale deed is not void due to inadequate consideration if free consent and valid execution are established. The court emphasized that while motivations behind the transaction may have included family interests or preventing disputes, as long as the deed was executed consciously and deliberately, inadequacy of consideration did not render it invalid.
Validity of Sale Deed:
The appellant sought cancellation of the sale deed, alleging lack of capacity to form rational judgment and undue influence. Despite the trial court's initial suspicions, the appellate court upheld the validity of the sale deed, considering the appellant's clear statement and lack of evidence of abuse by the respondents. The court dismissed the appeal, ruling in favor of the respondents, with each party bearing their costs throughout the legal proceedings.
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1982 (3) TMI 276
Issues Involved:
1. Impartibility of the Kundgol Deshgat Estate.
2. Applicability of the rule of lineal primogeniture.
3. Impact of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950 (Act No. 60 of 1950) and the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (Act No. 22 of 1955) on the watan properties.
4. Rights of the plaintiff and other family members in the watan properties.
5. Partition and regrant of watan lands.
Detailed Analysis:
1. Impartibility of the Kundgol Deshgat Estate:
The plaintiff claimed that the Kundgol Deshgat Estate was impartible by custom and succession to it was governed by the rule of lineal primogeniture. The trial court and the High Court rejected this claim, holding that the properties were joint family properties and thus partible. The courts found that the plaintiff failed to provide sufficient evidence to establish the custom of impartibility. The judgment cited the Privy Council's ruling in Martand Rao v. Malhar Rao, which emphasized that the burden of proving a special custom of impartibility lies on the party asserting it.
2. Applicability of the Rule of Lineal Primogeniture:
The plaintiff argued that even if the estate was impartible, the rule of lineal primogeniture governed succession. The courts below found no merit in this argument, noting that the rule of lineal primogeniture, like the custom of impartibility, required clear and unambiguous evidence, which the plaintiff failed to provide. The judgment referenced the Privy Council's decision in Adrishappa v. Gurshindappa, which held that the burden of proving the existence of a custom different from the ordinary law of inheritance lies on the party alleging it.
3. Impact of Act No. 60 of 1950 and Act No. 22 of 1955:
The principal question was whether these Acts extinguished the incidents of impartibility and the rule of lineal primogeniture. The judgment concluded that the Acts brought about a change in the tenure or character of holding as watan land but did not affect other legal incidents of the property under personal law. The Acts provided for the abolition of watans, resumption of watan land, and its regrant to the holder as an occupant, thereby extinguishing the incidents of impartibility and special succession rules.
4. Rights of the Plaintiff and Other Family Members:
The plaintiff's claim for exclusive possession and enjoyment of the suit properties was rejected. The courts held that the properties were joint family properties and thus partible. The judgment emphasized that the grant of watan to the eldest family member did not make the watan properties the exclusive property of the watandar. The Watan Act and subsequent legislation were designed to preserve the pre-existing rights of the members of the joint Hindu family.
5. Partition and Regrant of Watan Lands:
The courts found that the regrant of watan lands under the Acts must enure to the benefit of the entire joint Hindu family. The judgment noted that the regrant of land to the watandar under the Acts did not make the land the exclusive property of the watandar but rather maintained its character as joint family property. The provisions of the Acts imposed restrictions on alienation and partition but did not create a statutory bar to partition once the conditions mentioned therein were fulfilled.
Conclusion:
The appeals were dismissed, affirming the High Court's judgment that the suit properties were joint family properties and thus partible. The incidents of impartibility and the rule of lineal primogeniture were extinguished by Act No. 60 of 1950 and Act No. 22 of 1955. The regrant of watan lands under these Acts enured to the benefit of the entire joint Hindu family, subject to restrictions on alienation and partition.
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1982 (3) TMI 275
Issues Involved:
1. Authority and jurisdiction of the Divisional Manager to represent the Orissa Forest Corporation.
2. Validity of the appointment of the arbitrator.
3. Adequacy of notice served to the respondent.
4. Allegations of bias against the arbitrator.
5. Compliance with the arbitration clause in the agreement.
6. Legal misconduct by the arbitrator.
Issue-wise Detailed Analysis:
1. Authority and Jurisdiction of the Divisional Manager:
The respondent contended that the Divisional Manager was not authorized to represent the Orissa Forest Corporation in legal matters, asserting that the appointment of the arbitrator was obtained through fraud. The court previously held that the Divisional Manager, being a signatory to the agreement, was a proper party. This issue was raised in the application under Order 9, Rule 13 of C.P.C., and it was determined that the Divisional Manager had sufficient authority to represent the corporation.
2. Validity of the Appointment of the Arbitrator:
The respondent argued that the arbitration clause specified that disputes should be resolved by the Chairman, Managing Director, or Chief Executive Marketing of the Corporation, and if they were unavailable or unwilling, the arbitration clause would be considered non-existent. The court found that the appointment of an outsider as arbitrator was not challenged initially and that allegations of bias against the Chairman were considered when the court appointed the arbitrator. The appointment was upheld as not being without jurisdiction, and the reference was deemed valid.
3. Adequacy of Notice Served to the Respondent:
The respondent claimed that proper notice was not given before the ex parte award was passed. The court examined the records and found that the arbitrator had sent notices on several dates, which were received by the Divisional Manager. The arbitrator's decision to proceed ex parte was based on the respondent's consistent non-appearance and lack of cooperation. The court held that the notices were sufficient and that there was no prejudice caused to the respondent.
4. Allegations of Bias Against the Arbitrator:
The respondent alleged that the arbitrator was biased as he was a retained lawyer for the appellant. The court reviewed the arbitrator's report and found that he had also acted as a lawyer for the respondent. No definite bias was established. The same points were raised in the Miscellaneous Appeal and the application under Order 9, Rule 13, C.P.C., both of which were dismissed. The court agreed with the findings that there was no bias.
5. Compliance with the Arbitration Clause in the Agreement:
The arbitration clause in the agreement stipulated that disputes should be resolved by specific officials of the Corporation. The court noted that the appointment of the arbitrator was not initially challenged, and the arbitration clause did not explicitly prohibit the appointment of an outsider if the named officials were unavailable or unwilling. The court held that the arbitration clause was still operative and that the appointment of the arbitrator was valid.
6. Legal Misconduct by the Arbitrator:
The respondent claimed that the arbitrator committed legal misconduct by not issuing proper notice before proceeding ex parte. The court found that the arbitrator had followed the rules of natural justice by giving reasonable notice and opportunities to the respondent, who failed to appear. The arbitrator's actions were deemed in compliance with legal standards, and there was no legal misconduct.
Conclusion:
The appeal was allowed, and the judgment of the learned Subordinate Judge regarding the absence of proper notice and jurisdiction about the reference was set aside. The award of the arbitrator was made a rule of the court. No costs were awarded.
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1982 (3) TMI 274
Issues: Attempted illegal export of Indian currency, Order of preventive detention, Challenge to detention order under Article 32 of the Constitution, Legal basis for preventive detention, Relevance of past conduct in preventive detention decisions, Possibility of prosecution as a bar to preventive detention
Attempted illegal export of Indian currency:
The case involved an individual engaged in the recruiting and travel agency business who attempted to export Indian currency illegally. The individual was found in possession of a significant amount of Indian currency while boarding a flight to Abu Dhabi. The customs authorities seized the currency, leading to the individual's arrest and subsequent detention under the Customs Act, 1962, and the Foreign Exchange Regulation Act, 1973.
Order of preventive detention:
The Collector of Customs and Central Excise recommended the individual's preventive detention due to the planned and pre-meditated nature of the attempted currency export. The Special Secretary (Home) of Kerala, under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, passed an order for the individual's detention, citing the necessity to prevent smuggling activities.
Challenge to detention order under Article 32 of the Constitution:
The individual's wife filed a petition under Article 32 of the Constitution challenging the detention order. The contention was that a single instance of currency export should not warrant preventive detention, arguing against the necessity of detention to prevent future similar activities.
Legal basis for preventive detention:
The court referenced previous judgments to establish the legal basis for preventive detention. It was highlighted that preventive detention is a precautionary measure based on a reasonable prognosis of future behavior, considering past conduct and surrounding circumstances. The court emphasized that the nature of the act and the circumstances determine the justification for preventive detention.
Relevance of past conduct in preventive detention decisions:
The court emphasized that past conduct, even a single act, can be indicative of future behavior warranting preventive detention. In this case, the individual's planned and concealed attempt to export currency justified the conclusion that he might repeat the offense in the future, justifying his preventive detention.
Possibility of prosecution as a bar to preventive detention:
The court addressed the argument that the individual could be prosecuted under the Customs Act, suggesting that prosecution does not necessarily bar preventive detention. The court highlighted that preventive detention can be justified if there is a tendency to violate laws, even if prosecution is possible. The detaining authority must consider the possibility of prosecution but can opt for preventive detention to prevent future offenses.
Conclusion:
The court dismissed the petition challenging the detention order, rejecting the arguments against preventive detention based on past conduct and the possibility of prosecution. The judgment underscored the preventive nature of detention orders and the authority's subjective satisfaction in making such decisions.
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1982 (3) TMI 273
Issues Involved:
1. Period of limitation for filing an appeal under Section 27(5) of the Gujarat Agricultural Produce Markets Act, 1963.
2. Authority of the Director of Agricultural Marketing and Rural Finance to condone the delay in preferring an appeal.
Detailed Analysis:
Issue 1: Period of Limitation for Filing an Appeal
The primary issue raised in the petition is the period of limitation for filing an appeal before the Director of Agricultural Marketing and Rural Finance under Section 27(5) of the Gujarat Agricultural Produce Markets Act, 1963. The petitioner had applied for a licence as a General Commission Agent for the year 1980-81, which was refused by the Market Committee on 25th April 1981. This decision was communicated to the petitioner on 8th May 1981. Under Section 27(5), the petitioner had 30 days from the date of communication to file an appeal, which would have expired on 7th June 1981.
Issue 2: Authority to Condon the Delay
The petitioner initially filed a writ petition in the High Court, which was dismissed on 13th July 1981, with the Court allowing the petitioner two additional weeks to approach the appellate authority. The petitioner then filed an appeal on 21st July 1981. The Market Committee objected, claiming the appeal was time-barred. The Director initially held that Section 5 of the Limitation Act, 1963, applied, allowing for the condonation of delay. However, the Director ultimately dismissed the appeal as time-barred, stating no sufficient cause for condoning the delay was shown.
Court's Analysis:
Applicability of Section 5 of the Limitation Act
The Court examined whether Section 5 of the Limitation Act, 1963, could apply to the proceedings before the Director. Section 29(2) of the Limitation Act states that if a special or local law prescribes a different period of limitation, the provisions of Sections 4 to 24 of the Limitation Act would apply unless expressly excluded. The Gujarat Agricultural Produce Markets Act, 1963, is a special law providing a 30-day limitation period for appeals under Section 27(5). Consequently, Section 5 of the Limitation Act, which allows for the condonation of delay, applies to these proceedings.
Judicial Precedents and Interpretation
The Court referred to the Supreme Court's decision in Kerala Electricity Board v. T.P. Kunhaliumma, which held that Article 137 of the Limitation Act applies to applications filed under any Act to a Civil Court. However, the Court distinguished this case, noting that the Supreme Court was not addressing the applicability of Section 29(2) of the Limitation Act to statutory authorities exercising quasi-judicial functions.
The Court also cited a Division Bench decision of the Gujarat High Court, which held that Section 5 of the Limitation Act applies to proceedings before statutory authorities under special laws via Section 29(2). This precedent supported the view that the Director had the authority to condone the delay.
Merits of Condoning the Delay
The Court found that the petitioner had actively pursued his grievance against the Market Committee's order. The petitioner had initially approached the High Court within the limitation period and filed the appeal before the Director promptly after the High Court dismissed the writ petition. Given these circumstances, the Court held that the Director should have condoned the delay and decided the appeal on its merits.
Conclusion:
The Court quashed the Director's order dismissing the appeal as time-barred and directed the Director to restore the appeal and decide it on merits. The Court emphasized the need for the Director to consider all relevant facts and exercise judicial discretion properly. The appeal was to be decided expeditiously within six weeks from the receipt of the Court's writ. The petitioner's request for a writ of mandamus directing the Market Committee to grant the licence was not considered at this stage.
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1982 (3) TMI 272
Issues:
1. Interpretation of Section 31(2) of the Land Acquisition Act regarding the receipt of compensation under protest.
2. Validity of the Collector's decision in dismissing the application without considering the evidence produced by the claimant.
3. Applicability of case laws in determining whether compensation was received under protest.
4. Competence of the District Judge to decide if compensation was received under protest.
Analysis:
The judgment concerns an award made under the Land Acquisition Act, where a claimant filed an application under Section 18, which was initially rejected by the Assistant Collector citing receipt of compensation without protest. The claimant then filed a writ petition, leading to a hearing where witnesses testified, but the Collector dismissed the application without discussing the evidence, prompting the petitioners to seek revision.
The petitioners argued that the Collector's order lacked reasoning and failed to consider the claimant's evidence, emphasizing that the absence of "under Protest" on the receipt did not conclusively prove no protest was made. They cited relevant case laws to support their contention.
Conversely, the State contended that the Collector's conclusion that compensation was not received under protest was a factual determination supported by the absence of protest notes on the claimant's receipt compared to others. The court noted the failure to discuss the claimant's evidence and referenced a case emphasizing the importance of considering the intention behind receiving payment.
The court highlighted the Collector's oversight in not analyzing the claimant's evidence, leading to the decision's overturning. Referring to a Full Bench judgment, the court affirmed the District Judge's competence to determine if compensation was received under protest, as per Section 31(2) of the Act.
Ultimately, the court set aside the Collector's order and directed the case to be referred to the District Judge under Section 18 for a fresh decision on whether the compensation was received under protest. The existing evidence would be considered, and the State granted an opportunity for rebuttal. The judgment concluded with the partial allowance of the petition, emphasizing no costs to be awarded.
In conclusion, the judgment delves into the nuances of interpreting Section 31(2) of the Land Acquisition Act, emphasizing the importance of considering evidence and the intention behind receiving compensation. It underscores the District Judge's role in determining if compensation was received under protest, ensuring a fair and thorough assessment of the claimant's case.
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1982 (3) TMI 271
Issues Involved:
1. Maintainability of the civil revision petition.
2. Applicability of the Usurious Loans Act to nationalized banks.
3. Interpretation of the provisions of the Banking Regulation Act, 1949.
4. Rebuttal of the presumption of excessive interest under the Usurious Loans Act.
5. Impact of Reserve Bank of India directives on interest rates.
Detailed Analysis:
1. Maintainability of the Civil Revision Petition:
The preliminary objection raised by the respondents' counsel regarding the maintainability of the civil revision petition was addressed. The respondents argued that the suit, being for an amount not exceeding Rs. 3,000, should be cognizable by a Court of Small Causes and that the appeal did not involve a question of law. The court, however, found that the appeal did involve a question of law, namely, the applicability of the Usurious Loans Act to nationalized banks, which justified the appeal under Section 96(4) of the Civil Procedure Code (CPC). The court held that the appeal was rightly entertained and overruled the preliminary objection.
2. Applicability of the Usurious Loans Act to Nationalized Banks:
The court examined whether the provisions of the Usurious Loans Act, 1918, as amended by Tamil Nadu Act 8 of 1937, applied to nationalized banks. The Usurious Loans Act allows courts to provide relief to debtors if the interest charged is excessive or the transaction is substantially unfair. The court noted that while the Act presumes compound interest charged to agriculturists as excessive, this presumption can be rebutted by proof of special circumstances justifying the rate of interest.
3. Interpretation of the Provisions of the Banking Regulation Act, 1949:
The court considered the provisions of the Banking Regulation Act, 1949, which regulate the business of banking, including the rates of interest on advances. Section 21 of the Act empowers the Reserve Bank of India (RBI) to control the rates of interest charged by banking companies. The court found no inconsistency between the Banking Regulation Act and the Usurious Loans Act, as the former regulates the rate of interest on advances, while the latter provides relief from excessive interest claims.
4. Rebuttal of the Presumption of Excessive Interest Under the Usurious Loans Act:
The court addressed the presumption that the interest is excessive if compound interest is charged to agriculturists. This presumption is rebuttable by proof of special circumstances. In this case, the petitioner, a nationalized bank, charged interest rates as directed by the RBI. The court held that the directives and circulars issued by the RBI constitute special circumstances justifying the rate of interest charged by nationalized banks. Therefore, the presumption of excessive interest was rebutted.
5. Impact of Reserve Bank of India Directives on Interest Rates:
The court emphasized that nationalized banks are bound by the directives of the RBI regarding interest rates. Any deviation from these directives would attract penalties under the Banking Regulation Act. The court noted that the rates of interest charged by the petitioner bank were in accordance with the RBI's directives, which justified the rates as not being excessive or unfair. The court concluded that the Usurious Loans Act did not contemplate nationalized banks charging rates of interest as per RBI directives to be unfair.
Conclusion:
The court modified the decree of the lower courts and granted a decree as prayed for by the petitioner bank. The civil revision petition was allowed with costs, and the court held that the rates of interest charged by the nationalized bank, as per RBI directives, were justified and not subject to the provisions of the Usurious Loans Act.
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1982 (3) TMI 270
Issues Involved:
1. Breach of contract by the U.P. Financial Corporation.
2. Entitlement to release of further loan amount.
3. Validity of the recall notice for the entire loan.
4. Recovery of loan as arrears of land revenue.
5. Claim for collection charges.
6. Right to compensation for damages due to breach of contract.
7. Release of title deeds and hypothecation deed.
Issue-wise Detailed Analysis:
1. Breach of Contract by the U.P. Financial Corporation:
The Petitioner contended that the Corporation committed a breach of contract by not disbursing the balance loan amount of Rs. 2,31,500/-. The Corporation argued that the Petitioner had not created sufficient assets to meet the stipulated margin of 15% as per Clause 23 of the agreement, which was a condition precedent for further disbursement. The Court noted that both parties alleged breach of contract against each other, leading to the termination of the contract.
2. Entitlement to Release of Further Loan Amount:
The Petitioner claimed he had fulfilled all requirements under the agreement and invested his share of the project cost, thus was entitled to further loan disbursement. The Corporation, however, maintained that the Petitioner had not met the condition of creating sufficient assets and thus was not eligible for further disbursement. The Court found that the Corporation had a right to demand the creation of further assets before releasing additional funds.
3. Validity of the Recall Notice for the Entire Loan:
The Corporation issued a recall notice for the entire loan amount due to the Petitioner's alleged breach of agreement terms, including non-payment of overdue interest. The Court held that the Corporation was within its rights under Section 30 of the State Financial Corporations Act and the terms of the agreement to recall the loan.
4. Recovery of Loan as Arrears of Land Revenue:
The Corporation sought to recover the loan as arrears of land revenue under Section 3 of the U.P. Public Moneys (Recovery of Dues) Act, 1972. The Court upheld the Corporation's right to recover the loan amount as arrears of land revenue, provided the recovery process adhered to legal provisions.
5. Claim for Collection Charges:
The Petitioner challenged the inclusion of Rs. 40,167.06 as collection charges in the recovery notice, arguing that no costs had been incurred in collection proceedings. The Court found merit in this contention, noting that collection charges could only be levied when actual costs were incurred. Consequently, the Court quashed the impugned notice (Annexure 14) to the extent it claimed collection charges.
6. Right to Compensation for Damages Due to Breach of Contract:
The Petitioner claimed damages of Rs. 1,89,710/- due to the Corporation's breach of contract. The Court reiterated that a claim for unliquidated damages does not constitute a debt until adjudicated by a court. The Petitioner's right to sue for damages was acknowledged, but it did not absolve him of the liability to repay the loan with interest.
7. Release of Title Deeds and Hypothecation Deed:
The Petitioner sought the release of his title deeds and hypothecation deed, arguing that he owed nothing to the Corporation after adjusting the claimed damages. The Court held that the title deeds could not be released until the mortgage was redeemed, and the Petitioner's liability to repay the loan with interest was settled. The Court directed the Corporation to permit the Petitioner to sell the mortgaged property to repay the loan.
Conclusion:
The Court allowed the petition in part, quashing the notice dated 3-9-1980 (Annexure 14) to the extent it claimed collection charges, and restrained the respondents from realizing any amount towards collection charges. The Court directed the U.P. Financial Corporation to afford reasonable opportunity and grant permission to the Petitioner to sell the mortgaged properties for the purpose of redeeming the mortgage and repaying the loan. Each party was ordered to bear its own costs.
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1982 (3) TMI 269
Issues:
1. Violation of s. 314 of the Companies Act, 1956 by the second and third respondents.
2. Interpretation of s. 314(1)(a) and (b) regarding holding of office or place of profit by a director or a relative.
3. Determination of whether the second respondent held any office or place of profit.
4. Examination of whether the third respondent, as the son of the second respondent, violated s. 314(1)(b) of the Act.
Analysis:
1. The judgment pertains to an application under s. 314 of the Companies Act, 1956, seeking a declaration that the second and third respondents vacated their offices due to a violation of the Act. The applicant argued that the third respondent, being the son of the second respondent, was appointed without the company's consent, breaching s. 314 provisions. The court analyzed the relevant sections of the Act to determine the applicability of the violations.
2. The court delved into the interpretation of s. 314(1)(a) and (b) concerning the holding of office or place of profit by a director or a relative. It emphasized that the prohibition under s. 314(1)(b) applies to a relative of a director holding any office or place of profit, not just any ordinary director. The judgment clarified the distinction between a director holding a place of profit and an ordinary director to ascertain the scope of the violations alleged in the application.
3. Regarding the second respondent, the court scrutinized whether he held any office or place of profit as defined in s. 314(3) of the Act. It noted that the applicant failed to provide evidence that the second respondent received additional remuneration beyond what was entitled to him as an ordinary director. The court highlighted that without proof of holding an office or place of profit, the alleged violation of s. 314(1)(a) could not be established.
4. In the case of the third respondent, the court concluded that the applicant did not succeed in demonstrating that the third respondent, as the son of the second respondent, violated s. 314(1)(b) of the Act. The judgment emphasized that for the provision to apply, the relative must be of a director holding an office or place of profit. Since the second respondent was not deemed to hold such a position, the violation alleged against the third respondent was dismissed.
5. Ultimately, the court dismissed the application, ruling that the applicant failed to prove the alleged violations by the second and third respondents under s. 314 of the Companies Act, 1956. The judgment concluded that without evidence of holding an office or place of profit, the application lacked merit and was thus rejected without costs.
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1982 (3) TMI 268
Issues:
Interpretation of the definition of 'holding' under the Andhra Pradesh Land Reforms Act, 1973.
Analysis:
The case involved an appeal against the High Court's judgment regarding the interpretation of the term 'holding' under the Andhra Pradesh Land Reforms Act, 1973. The respondent had transferred land under unregistered sale deeds and a gift deed but did not include them in his declaration under the Act. The Land Reforms Tribunal computed his holding and asked him to surrender excess land. The Appellate Tribunal confirmed this decision, leading to a revision in the High Court. The High Court held that the transferred land could not be included in the respondent's holding. The Supreme Court analyzed the definition of 'holding' under the Act, which includes land held by various persons in different capacities. The Explanation clarified that the same land could be part of the holding of multiple persons holding it in various capacities.
The Attorney General argued that the transferred land should still be considered part of the respondent's holding. The respondent contended that 'held' in the definition implied ownership with possession. The Court referred to the Oxford Dictionary definition of 'held,' which includes ownership and possession. It concluded that even without a valid title deed, possession pursuant to an agreement for sale is legal, and the transferor remains the owner. The Court held that the respondent satisfied the conditions of the definition of 'holding,' and the transferred land formed part of his holding.
The Court addressed the potential anomaly of the same land being part of multiple persons' holdings. It referenced relevant sections of the Act, highlighting provisions safeguarding the interests of owners and persons in possession. The Court emphasized the clear and unambiguous language of the definition of 'holding,' which allows the same land to be part of various persons' holdings in different capacities. The Court also dismissed the argument based on a form under the Act, stating it did not support the respondent's contention.
Ultimately, the Supreme Court allowed the appeal, setting aside the High Court's order and restoring that of the Land Reforms Tribunal. The Court concluded that the transferred land should be considered part of the respondent's holding as per the Act's definition.
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1982 (3) TMI 267
Issues Involved:
1. Ultra vires of Section 3 of the Essential Commodities Act.
2. Violation of Article 19(1)(g) of the Constitution.
3. Violation of Article 14 of the Constitution.
Summary:
Issue 1: Ultra vires of Section 3 of the Essential Commodities Act
The petitioners challenged the constitutional validity of the order issued by the Central Government u/s 3 of the Essential Commodities Act, 1955. They argued that the impugned order is not covered by Section 3 and is ultra vires. The Court held that the language of Section 3(1) coupled with Clause (d) of Sub-section (2) of Section 3 is wide enough to cover the impugned order. The Court stated, "Section 3(1) authorises the Central Government to pass an order for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability at a fair price of the essential commodity." Therefore, the impugned order is fully protected and is not ultra vires Section 3 of the Essential Commodities Act, 1955.
Issue 2: Violation of Article 19(1)(g) of the Constitution
The petitioners contended that the impugned order imposes unreasonable restrictions on their right to carry on trade or business, thus violating Article 19(1)(g) of the Constitution. The Court observed that the impugned order is regulatory and not prohibitory. It stated, "By the impugned order the Central Government has only put an embargo on the dealers on keeping sugar in excess of the quantity specified. It was passed only with a view to prevent hoarding and black-marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market." The Court concluded that the restrictions imposed by the impugned order are reasonable and in the public interest.
Issue 3: Violation of Article 14 of the Constitution
The petitioners argued that the impugned order is violative of Article 14 of the Constitution on two grounds: (a) it applies different standards for dealers in Calcutta and other places, and (b) it is unreasonable and impracticable. The Court held that the fixation of limits for storing sugar in Calcutta and other places is based on reasonable classification. It stated, "The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function." Regarding the second ground, the Court noted that sugar is a scarce commodity and there is no difficulty in selling it at any time at the prevalent market price. The Court concluded that the impugned order is not violative of Article 14 of the Constitution.
Conclusion:
The writ petitions were dismissed, and the Court held that the impugned order is neither ultra vires Section 3 of the Essential Commodities Act nor violative of Articles 19(1)(g) and 14 of the Constitution. There was no order as to costs.
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1982 (3) TMI 266
Issues Involved:
1. Validity of the termination of service of the 1st respondent.
2. Interpretation of sections 3 and 6 of the Bihar Private Medical Colleges (Taking Over) Act, 1978.
3. Authority of the State Government and the Screening Committee regarding the age of superannuation.
Summary:
1. Validity of the termination of service of the 1st respondent:
The Supreme Court reviewed the appeal against the Patna High Court's judgment which had quashed the termination of the 1st respondent's service and directed that he continue until the age of 62 years. The High Court had held that the obligation to continue the 1st respondent in service until 62 years devolved on the State Government upon taking over the Magadh Medical College.
2. Interpretation of sections 3 and 6 of the Bihar Private Medical Colleges (Taking Over) Act, 1978:
The Supreme Court found that the High Court misinterpreted the provisions of sections 3 and 6 of the Act. Section 3(3) provided for the devolution of liabilities and obligations on the State Government, but section 6 specifically dealt with the terms of employment of the teaching staff. Section 6(1) stated that all staff would cease to be employees of the College body from the date of the notified order and would continue on an ad hoc basis until a decision was made under subsections (3) and (4). Thus, the 1st respondent's original contract did not devolve on the State Government; instead, he became an ad hoc employee.
3. Authority of the State Government and the Screening Committee regarding the age of superannuation:
The Screening Committee recommended retiring teachers beyond the age of 58 years, subject to reappointment if no qualified substitutes were available. The Supreme Court held that the Committee had the authority to make such recommendations under section 6(2), which included determining "rank, pay, allowances, and other conditions of service." Furthermore, section 6(3) empowered the State Government to redetermine these conditions, including the age of superannuation. The State Government's decision to terminate the services of teachers who had attained the age of 58 years was within its power, and the 1st respondent, being an ad hoc employee, could not claim the right to continue until 62 years.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and dismissed the writ petition of the 1st respondent. The termination of the 1st respondent's service was deemed valid. No order as to costs was made.
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1982 (3) TMI 265
Issues involved: Interpretation of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 regarding the completion date of a building and applicability of the Act to buildings constructed before its enforcement.
Judgment Details:
1. The appellant, a tenant of a shop, faced eviction by the landlord claiming the Act did not apply as the shop's construction predated the Act. The trial court found the construction completed in 1967, making the Act inapplicable. The High Court referred the issue of completion date to the trial court, which deemed it as 1st April 1968 based on the first assessment date.
2. The appellant argued that the Act should apply as per sub-section (2) of section 2, contending the exemption does not cover buildings constructed before the Act. The Court rejected this, stating the Act's language is clear and unambiguous, not requiring construction after the Act's enforcement.
3. Additionally, the appellant claimed the building's completion date should be the occupation date, entitling them to Act benefits. However, the Court held that as per Explanation I of section 2(2), the first assessment date is deemed the completion date if available, making the Act inapplicable to the building.
4. The Court dismissed the appeals and special leave petition, directing eviction orders to be executed after 30th June 1982, subject to conditions including vacating the premises, paying arrears, future compensation, and refraining from subletting. Non-compliance would render the eviction decree immediately executable.
5. The judgment emphasized adherence to statutory provisions and the explicit language of the Act in determining the building's completion date and applicability of the Act to pre-existing constructions, ultimately upholding the eviction orders.
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