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1990 (3) TMI 386
Issues:
Challenge against quashing of maintenance order based on second marriage of husband. Interpretation of desertion in matrimonial law. Admissibility of additional evidence in Section 482 proceedings.
Analysis:
The judgment pertains to a petition under Section 482 of the Criminal Procedure Code challenging the quashing of a maintenance order by the IVth Additional Sessions Judge. The petitioner, the wife, sought maintenance after the trial court found that the respondent-husband had contracted a second marriage, providing a justifiable ground for the petitioner to live separately and claim maintenance. The respondent's second marriage was established through witness testimonies and the priest who performed the marriage. The respondent's counsel contested this finding, arguing lack of specific pleading and timing of the second marriage. However, the revisional court, in a peculiar logic, concluded that it was the wife who had deserted the husband, hence not entitled to maintenance.
The petitioner's counsel argued that the finding of desertion was erroneous based on the evidence. The wife had gone to her parents due to her mother's illness, a situation that cannot be deemed as desertion under matrimonial law. Desertion, as defined, requires intentional permanent forsaking without consent and reasonable cause. The wife's stay with her ailing mother, coupled with the husband's second marriage, provided sufficient reason for her to live separately, justifying the maintenance claim.
The judgment emphasized that proceedings under Section 482 should not turn into full trials. The respondent's attempt to introduce fresh evidence, a photostat copy of an unrelated order, was deemed impermissible and undesirable at that stage. The court reiterated that the focus should be on whether there was a valid reason for the wife to live apart from her husband, rather than delving into new evidence. Criticism of the evidence regarding the second marriage was dismissed, highlighting that the revisional court's decision was flawed due to a misunderstanding of the legal concept of desertion.
Ultimately, the impugned order disallowing maintenance was quashed, and the petition was allowed with costs. The judgment underscored the incorrect interpretation of desertion by the lower court and the inadmissibility of additional evidence in Section 482 proceedings, leading to the reversal of the decision and reinstatement of the maintenance order for the petitioner.
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1990 (3) TMI 385
Issues:
1. Allegations of torture and wrongful confinement by police officials.
2. Delay in filing the complaint and its impact on the case.
3. Legality of the standing counsel's appearance for the complainant.
4. Procedural delays and their attribution.
5. Adverse publicity and its impact on the fairness of the trial.
6. Inherent improbability and absurdity of the prosecution case.
7. Jurisdiction and power of the High Court under Article 226 of the Constitution to quash criminal proceedings.
Analysis:
1. Allegations of Torture and Wrongful Confinement:
The complainant alleged that on 18th July 1974, police officials raided her house, ransacked her room, and took her along with two other women to the police station. She claimed that they were tortured by the police, including being burnt with lighted cigarette ends. The complaint was filed on 20th August 1977, and the Magistrate took cognizance, issuing summons to the accused under various sections of the Indian Penal Code.
2. Delay in Filing the Complaint:
The complaint was filed more than three years after the alleged incidents. The court noted that while delay in filing a complaint can lead to embellishments and afterthoughts, in this case, the delay was not considered inordinate given the complainant's detention under MISA and subsequent parole and release. The court found that the delay did not inherently make the allegations absurd or improbable.
3. Legality of the Standing Counsel's Appearance:
Objections were raised against the appearance of Mr. A.P. Chatterjee, the Standing Counsel, on behalf of the complainant. The court noted that previous rulings had established no illegality in Mr. Chatterjee's appearance, as the alleged offenses were unconnected with the discharge of official duties by the accused police officers.
4. Procedural Delays and Their Attribution:
The court meticulously analyzed the timeline of delays, attributing most of the delay to the actions of the accused, particularly Mr. Guha Neogi. It was noted that frivolous objections and repeated legal challenges by the accused significantly contributed to the delay in the trial.
5. Adverse Publicity and Fairness of the Trial:
The accused argued that adverse publicity and demonstrations created a prejudicial atmosphere against them. The court acknowledged the demonstrations but did not find sufficient evidence that they influenced the judicial process or the fairness of the trial.
6. Inherent Improbability and Absurdity of the Prosecution Case:
The court rejected the argument that the prosecution case was patently absurd or inherently improbable. It emphasized that such determinations should be based on complete and thorough evidence, which had not yet been fully presented.
7. Jurisdiction and Power of the High Court under Article 226:
The court held that while the High Court has the power to quash criminal proceedings under Article 226, such power should be exercised sparingly and only in exceptional cases. The court found that the present case did not warrant such interference, especially given the incomplete state of evidence.
Conclusion:
The court set aside the judgment quashing the criminal proceedings, emphasizing the need for a thorough trial to ensure justice. The trial was directed to proceed expeditiously, with a timeline for completion set by the court. The appeal was allowed, and the case was remanded for continuation of the trial.
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1990 (3) TMI 384
Issues Involved:
1. Legality of the land acquisition for implementing the Master Plan.
2. Adequacy of the public purpose stated in the notifications.
3. Conduct of the Section 5-A enquiry.
4. Acquisition of properties owned by religious denominations under Article 26 of the Constitution.
5. Alleged non-existence of the Master Plan.
6. Specific objections related to individual notifications and properties.
Detailed Analysis:
1. Legality of the Land Acquisition for Implementing the Master Plan:
The court held that the purpose stated in the notifications, such as the implementation of the Master Plan, construction of Kalyana Mantapams, Choultries, and widening of roads, constitutes a public purpose. The acquisition aimed at the integrated development of Tirumala, ensuring the sanctity, safety, and convenience of the pilgrim traffic. The court emphasized that the acquisition of private properties for planned development is permissible and necessary for the public interest.
2. Adequacy of the Public Purpose Stated in the Notifications:
The court found that the purposes mentioned in the notifications were clear and specific enough to enable the affected persons to submit their objections. The purposes such as "implementation of the Master Plan," "construction of Kalyana Mantapam," and "widening of roads" were deemed sufficient to constitute a public purpose. The court rejected the argument that a detailed plan specifying the exact structures should be prepared before issuing acquisition notifications.
3. Conduct of the Section 5-A Enquiry:
The court examined the conduct of the Section 5-A enquiry and found that, generally, the enquiries were held in accordance with the law. However, it acknowledged certain procedural defects, such as the non-supply of the Master Plan to some objectors. Despite these irregularities, the court concluded that there was no failure of justice warranting interference. The overall purpose of acquisition was clear to the objectors, and the court emphasized the discretionary nature of the remedy under Article 226.
4. Acquisition of Properties Owned by Religious Denominations under Article 26:
The court addressed the contention that the acquisition of properties owned by religious denominations would violate Article 26 of the Constitution. It held that unless the acquisition completely deprives the denomination of its right to own and acquire property necessary for its survival, the acquisition is valid. The court noted that the affected religious institutions would be provided with alternate sites, allowing them to continue their activities.
5. Alleged Non-Existence of the Master Plan:
The court rejected the argument that the Master Plan did not exist. It clarified that the Master Plan referred to the development plan envisaged in 1975, which was being implemented in certain sectors. The court held that the purpose of implementing the Master Plan, wherever mentioned, was not a non-existent purpose.
6. Specific Objections Related to Individual Notifications and Properties:
The court addressed various specific objections raised by the appellants:
- In W.A. No. 1363/89, the court acknowledged a procedural defect in the Section 5-A enquiry but concluded that it did not warrant interference.
- In W.A. No. 1384/89, the court found that the Land Acquisition Officer had dealt with the objections adequately, despite not specifically addressing the construction of the Fourth Choultry.
- In W.A. No. 1493/89, the court found that the enquiry under Section 5-A was conducted properly, with the objector's statement recorded.
Conclusion:
The court dismissed the writ appeals, upholding the validity of the acquisition notifications and the reasoning of the learned single Judge. The court emphasized the larger public interest in the integrated development of Tirumala and the necessity of acquiring private properties to achieve this goal. The court also noted that the T.T.D. would take appropriate steps to address the concerns of religious institutions and ensure the proper relocation of temples, if necessary.
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1990 (3) TMI 383
Issues Involved:
1. Grant of interlocutory injunction.
2. Alleged wrongful termination of agency agreement.
3. Alleged breach of fiduciary duty and conspiracy to defame and injure the plaintiffs.
4. Procurement of breach of agreements with foreign principals.
5. Use or disclosure of confidential information and trade secrets.
Detailed Analysis:
1. Grant of Interlocutory Injunction:
The law regarding the grant of interlocutory injunction is well-settled. The judgment references Lord Diplock's speech in American Cyanamid's case and the Supreme Court's decision in United Commercial Bank v. Bank of India, establishing that only a prima facie case is needed at this stage without considering the chance of success at the final disposal of the suit. A reasonable or even plausible case is sufficient at this interlocutory stage. The court also noted that the same principle applies to the grant of quia timet injunction to prevent apprehended damage.
2. Alleged Wrongful Termination of Agency Agreement:
The plaintiffs contended that the termination of their agency agreement by the foreign principal was wrongful, illegal, and void as it was not in accordance with the agreement between the parties. The plaintiffs did not accept the termination and argued that the defendants wrongfully conspired to induce this breach.
3. Alleged Breach of Fiduciary Duty and Conspiracy:
The plaintiffs alleged that the defendants, who were former partners and employees, established rival businesses to make secret profits and illegal gains. They contended that the defendants breached their fiduciary duty and conspired to defame and injure the plaintiffs' business. The court noted that while the establishment of a rival business by itself is not actionable, the breach of fiduciary duty combined with deliberate and direct interference with the execution of a contract could warrant legal intervention.
4. Procurement of Breach of Agreements with Foreign Principals:
The plaintiffs argued that the defendants procured and induced breaches of agreements with various foreign principals. The court examined telex messages that indicated an intent to interfere with existing contractual relationships. The court held that deliberate and direct interference with the execution of a contract is actionable, and the intent to procure a breach is sufficient for an interlocutory injunction.
5. Use or Disclosure of Confidential Information and Trade Secrets:
The plaintiffs sought an injunction to restrain the defendants from using or disclosing confidential information and trade secrets acquired from the plaintiffs. The court agreed that there was sufficient evidence to show a fair question to be tried at the final adjudication, warranting an order of injunction.
Conclusion:
The court granted an order of injunction restraining the defendants from procuring or wrongfully inducing any breach of agreements made between the plaintiffs and their foreign principals. The defendants were also restrained from using or disclosing confidential information or trade secrets acquired from the plaintiffs. The plaintiffs were awarded the costs of the application.
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1990 (3) TMI 382
Issues Involved:
1. Validity of the detention order without specifying the period of detention.
2. Relevance of the grounds of detention to the maintenance of public order.
3. Alleged non-application of mind by the detaining authority.
Detailed Analysis:
1. Validity of the Detention Order Without Specifying the Period of Detention:
The petitioner challenged the detention order on the ground that it did not specify the period of detention, rendering it illegal. Section 3 of the Tamil Nadu Prevention of Dangerous Activities Act does not require the detaining authority to specify the period of detention. The Court noted that the Act provides a maximum period of detention of twelve months, and the State Government has the power to revoke or modify the detention order at any time. The Court referenced prior cases, including Ujagar Singh v. The State of Punjab, Suna Ullah Butt v. State of Jammu & Kashmir, and A.K. Roy v. Union of India, which consistently held that non-specification of the detention period does not invalidate the order. The Court concluded that the impugned order was not rendered illegal due to the absence of a specified detention period.
2. Relevance of the Grounds of Detention to the Maintenance of Public Order:
The sole ground for the detention was an incident on 29.7.1989, where the detenu allegedly attempted a murderous assault on a Minister during a Seminar, causing panic and obstruction to traffic. The Court examined whether this incident affected public order or merely law and order. The Court emphasized the distinction between 'law and order' and 'public order,' noting that the degree of disturbance and its impact on the community are crucial. The Court found that the incident, while serious, did not have the reach and potentiality to disturb the normal life of the community or public peace and tranquility. The Court cited Manu Bhusan Roy Prodhan v. State of West Bengal, where a solitary assault was deemed insufficient to disturb public order. Consequently, the Court held that the incident did not justify the detention for the maintenance of public order.
3. Alleged Non-Application of Mind by the Detaining Authority:
The detaining authority, the District Magistrate, was present at the Seminar but claimed he did not witness the incident as he was focused on the proceedings. The Court found it difficult to believe that the District Magistrate, seated on the dais with the Minister, did not observe the occurrence. The Court noted that the detaining authority should have formed the requisite opinion based on his own observations rather than solely relying on the police report. The Court concluded that there was non-application of mind by the detaining authority, rendering the detention order invalid.
Conclusion:
The Supreme Court quashed the detention order, finding it invalid due to the failure to specify the period of detention, the irrelevance of the grounds to public order, and the non-application of mind by the detaining authority. The detenu was ordered to be released forthwith.
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1990 (3) TMI 381
Issues:
1. Whether the suit for cancellation of a sale deed executed by an illiterate person is maintainable under Section 49 of the U.P. Consolidation of Holdings Act, 1953.
2. Whether the transaction in question was void or voidable due to fraud.
Analysis:
Issue 1:
The appeal in question arose from a judgment of the Allahabad High Court where the decrees of the lower courts were set aside, holding the suit barred under Section 49 of the Act. The plaintiff, an illiterate person, was deceived into executing a sale deed instead of a gift deed by the defendants. The High Court ruled the suit as void under Section 49 due to ongoing consolidation proceedings. The plaintiff contended that the suit was maintainable due to fraud. However, the respondent argued that the transaction was void, citing relevant case law.
Issue 2:
The Supreme Court analyzed the nature of the transaction to determine if it was void or voidable due to fraud. Citing Gorakh Nath Dube v. Hari Narain Singh and Ningawwa v. Byrappa, the Court distinguished between void and voidable transactions. It emphasized that a transaction induced by fraudulent misrepresentation as to its character is void, not merely voidable. In the present case, the plaintiff was unaware of executing a sale deed, believing it to be a gift deed. The Court concluded that the transaction was void due to fraudulent misrepresentation of the document's character, making the suit not maintainable under the Act.
In conclusion, the Supreme Court upheld the High Court's decision, stating that the plaintiff's remedy lies with the consolidation authorities. The Court dismissed the appeal, emphasizing that the transaction was void, and the suit was not maintainable under Section 49 of the Act.
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1990 (3) TMI 380
Issues Involved:
1. Quashing of prosecution under sections 276C(1), 277 read with section 278-B of the Income Tax Act, 1961.
2. Impact of the appellate order setting aside the original assessment on the criminal proceedings.
3. Discretion of the criminal court to adjourn or postpone proceedings pending reassessment.
Detailed Analysis:
1. Quashing of Prosecution:
The petitioners sought quashing of their prosecution under sections 276C(1) and 277 read with section 278-B of the Income Tax Act, 1961, initiated on a criminal complaint filed by the Income Tax Officer. The complaint alleged that the petitioners, being responsible for the conduct of the firm's business, filed a false return showing a total loss, while scrutiny revealed fictitious entries amounting to Rs. 3,46,480 in the books of accounts. The prosecution was based on the assertion that the accused willfully attempted to evade tax, penalty, or interest, and submitted false statements in the verification of the return of income.
2. Impact of Appellate Order:
The petitioners argued that the criminal complaint should be quashed because the Commissioner of Income Tax (Appeals) had set aside the original assessment order and remanded the case for reassessment. They contended that since the criminal complaint was based on the findings of the now-set-aside assessment order, there was no basis left for prosecution. The Department countered that the reassessment did not bar the continuation of criminal proceedings, citing the Supreme Court judgment in P. Jayappan v. S. K. Perumal, which held that reassessment proceedings do not preclude criminal prosecution.
3. Discretion to Adjourn or Postpone:
The High Court noted that while the pendency of reassessment proceedings does not automatically quash criminal proceedings, each case must be evaluated on its facts. The Court referenced the Supreme Court's guidance in P. Jayappan, which allows criminal courts to adjourn or postpone hearings if the outcome of reassessment proceedings is imminent and may impact the criminal case. The Court emphasized that this discretion should be exercised judicially and not to frustrate the criminal proceedings' objectives.
Conclusion:
The High Court dismissed the petition for quashing the criminal complaint, finding that the reassessment order did not nullify the basis for prosecution, especially given the statement made by one of the partners during assessment proceedings. However, the Court left open the option for the petitioners to request the criminal court to adjourn or postpone the hearing of the criminal complaint if the reassessment proceedings were not yet finalized. The trial court was instructed to consider any such application judiciously, ensuring that the objective of the criminal proceedings was not frustrated. The petitioners were directed to appear before the Additional Chief Metropolitan Magistrate on the specified date.
Orders:
The petition was dismissed, and the trial court records were ordered to be sent back for further action. The petitioners were instructed to appear before the Additional Chief Metropolitan Magistrate as scheduled.
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1990 (3) TMI 379
Issues:
Claim of deduction under section 80-I for construction activity as industrial company, disallowance of car maintenance expenses, guarantee commission paid to bank.
Claim of Deduction under Section 80-I:
The appeal involved the denial of a deduction under section 80-I of the Income Tax Act for a firm engaged in the construction of buildings, claiming to be an industrial company. The assessee contended that construction activities could be considered industrial activities based on the definition of "article or thing" in the Act. The argument focused on whether buildings could be classified as "goods" or "articles." Various court decisions were cited to support the contention that construction of buildings constituted manufacturing and production of an article or thing, thus justifying the claim for deduction under section 80-I. The interpretation of the term "article or thing" and its application to construction activities formed the crux of the issue.
Detailed Analysis:
The judgment analyzed the provisions of section 80-I, which allow a deduction for profits derived from an industrial undertaking. The section specifies conditions for qualifying as an industrial undertaking, including the requirement to manufacture or produce any article or thing not listed in the Eleventh Schedule. The interpretation of terms like "manufacture," "produce," "article," and "thing" was crucial in determining the eligibility for the deduction. The court examined definitions from the Twentieth Century Chambers Dictionary to understand the scope of these terms and concluded that construction activities, involving the assembly of various materials to create a new product like a building, could be considered as manufacturing or producing an article or thing. The exclusion of certain categories listed in the Eleventh Schedule indicated that the intention was to allow industrial growth while restricting certain activities from claiming the rebate.
The argument presented by the Departmental Representative (DR) emphasized the limitation of the term "article or thing" to items similar to those specified in the Eleventh Schedule. However, the court rejected this narrow interpretation and relied on various judicial precedents to support the broader understanding of the term. Court referred to the Finance Act, 1983, which included the execution of projects, including construction of buildings, in the definition of an industrial company. This broader definition supported the contention that construction activities could fall within the scope of manufacturing or producing an article or thing under section 80-I.
The judgment extensively discussed relevant case laws, such as CIT v. Minocha Bros. (P.) Ltd., National Projects Construction Corpn. Ltd. v. CWT, and CIT v. Pressure Piling Co. (I) (P.) Ltd., to establish that construction activities could be considered industrial activities for the purpose of claiming deductions under section 80-I. The court also referenced Tribunal decisions supporting the inclusion of buildings as articles or things under the Act. Overall, the judgment highlighted the legislative intent to promote industrial growth while providing clarity on the eligibility criteria for claiming deductions under section 80-I.
Disallowance of Car Maintenance Expenses and Guarantee Commission:
The appeal also addressed the disallowance of car maintenance expenses and guarantee commission paid to the bank. However, the detailed analysis of these issues was not provided in the summarized text.
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1990 (3) TMI 378
Issues Involved: Appeal against Order-in-Appeal rejecting challenge to penalty and duty imposition on Brass Controllers and Tops for L.P. Gas Stoves.
Details of the Judgment:
Issue 1: Jurisdictional Error in Adjudication
The appellant contended that the Deputy Collector exceeded the scope of the Show Cause Notice by adjudicating on both Unit No. 1 and Unit No. 2, despite the notice only mentioning Unit No. 2. The Collector upheld the decision, stating that Unit No. 1 was also mentioned in the notice. The appellant argued that a specific charge was required, and the department failed to prove clandestine removal of goods. The Tribunal found that the duty demand was not sustainable due to lack of evidence of clandestine production, citing relevant case law.
Issue 2: Alleged Contraventions and Defence Pleas
The respondent argued that the Show Cause Notice was valid, covering the contraventions and exemption issues. The appellant's defence plea regarding shortages and goods movement was considered new and not accepted. The Tribunal noted discrepancies in descriptions but found the evidence insufficient to establish manufacture in Unit No. 1. The Deputy Collector's rejection of the benefit of doubt was deemed against adjudication principles.
Issue 3: Duty Imposition and Penalty Justification
The Collector upheld the duty demand on Brass Controllers and Tops, citing lack of permission for bringing in excisable goods. The penalty of Rs. 2,000 was deemed justified for removal of LPG Stoves without duty payment, later paid. The Tribunal found no direct evidence of manufacture in Unit No. 1 and supported the imposition of penalty but ruled duty not leviable due to lack of proof of manufacture by the appellants.
The Tribunal concluded that while the penalty was justified for the removal of LPG Stoves without duty payment, the duty demand on Brass Controllers and Tops was not sustainable due to insufficient evidence of manufacture by the appellants. The appeal was disposed of accordingly, upholding the penalty but rejecting the duty imposition.
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1990 (3) TMI 377
Issues involved: Challenge to the legality of an order passed under section 482 Cr.P.C. regarding the transfer of a case for enquiry under section 202 of the Code, and the subsequent quashing of proceedings based on the alleged irregularity in the transfer.
Summary:
The Supreme Court considered the challenge to the order of the High Court dated 19.8.1989 passed under section 482 Cr.P.C. The case involved a private complaint for offences under sections 452 and 323 I.P.C. where the Judicial Magistrate First Class transferred the case for enquiry under section 202 of the Code. The respondents challenged the order of the Magistrate issuing process, claiming it was illegal as cognizance of the offence was not taken before the transfer. The High Court dismissed the petition, but the respondents filed a second application under section 482 Cr.P.C., which the Single Judge accepted and quashed the proceedings. The appellant contended that the second application was not maintainable as it amounted to a review of the earlier order, contrary to the spirit of the Cr.P.C. The Supreme Court held that the inherent power under section 482 is intended to prevent abuse of process and secure justice, but cannot be used for a review expressly barred under the Code. The Court emphasized that the High Court erred in reconsidering the matter without changed circumstances and quashing the proceedings solely based on alleged irregularity in the transfer.
The Court referred to section 362 of the Code, which prohibits altering or reviewing a judgment except for clerical errors, and highlighted that inherent powers must align with statutory provisions. Citing precedent, the Court emphasized that inherent jurisdiction cannot override the bar of review under section 362. The Court found the High Court's order to be a review of the earlier decision, which was not permissible. Ultimately, the appeal was allowed, and the High Court's order was set aside, with no compelling reasons found to quash the proceedings at that stage.
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1990 (3) TMI 376
Issues Involved:
1. Jurisdiction of Cooperative Court under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960.
2. Applicability of Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947, to licensees in cooperative housing societies.
3. Relationship between the society and the licensee.
4. Legislative intent behind Section 15A of the Rent Act.
Detailed Analysis:
1. Jurisdiction of Cooperative Court under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960:
The core issue was whether the Cooperative Court had jurisdiction under Section 91(1) of the Societies Act to evict a licensee from a flat in a tenant-co-partnership society, despite the protection extended by Section 15A of the Rent Act. The Cooperative Court concluded that the relationship between the society and the licensee was not that of landlord and tenant, thus maintaining jurisdiction under Section 91(1). This was affirmed by the Maharashtra State Cooperative Appellate Court and the High Court, which cited precedents like O.N. Bhatnagar v. Rukibai Narsindas, emphasizing that protection under the Rent Act could not be claimed against the society.
2. Applicability of Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947, to licensees in cooperative housing societies:
Section 15A of the Rent Act provides that licensees in occupation of premises on February 1, 1973, are deemed tenants and thus protected under the Rent Act. The appellant argued that he was a statutory tenant under Section 15A since he was in occupation on the specified date. The Cooperative Court acknowledged this but maintained that the society could still evict under Section 91(1) of the Societies Act, as the society was not a landlord under the Rent Act.
3. Relationship between the society and the licensee:
The appellant contended that the document of leave and licence created a lease, making the proceeding under Section 91(1) of the Societies Act incompetent. The Cooperative Court found the relationship to be that of licensor and licensee. The courts below held that there was no jural relationship of landlord and tenant between the society and the appellant, thus allowing the society to maintain eviction proceedings under Section 91(1).
4. Legislative intent behind Section 15A of the Rent Act:
The legislative intent behind Section 15A was to protect licensees from eviction and provide security of tenure due to the acute shortage of accommodation. The Supreme Court emphasized that Section 15A was introduced to curb exploitation and provide security to licensees, overriding other laws and contracts. The Court noted that the Rent Act's provisions should apply in matters covered by it, rather than the Societies Act, to harmonize the two statutes.
Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the lower courts, and directed that the claim application filed under Section 91(1) of the Societies Act be dismissed. The Court held that the appellant, as a protected tenant under Section 15A of the Rent Act, could not be evicted by the society under Section 91(1) of the Societies Act. The Court emphasized that legislative intent and the protective provisions of the Rent Act should prevail, ensuring that licensees in occupation on February 1, 1973, are deemed tenants and protected from eviction.
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1990 (3) TMI 375
Issues involved: Disparaging remarks made by a High Court Judge against a senior Advocate in a review petition, Allegations of fraud on the Court, Professional conduct of the Advocate General, Jurisdiction of the High Court in entertaining the review petition.
Disparaging Remarks Issue: The case involved derogatory remarks made by a High Court Judge against a senior Advocate in a review petition. The Judge expressed strong disapproval of the remarks, emphasizing the need for Judges to act with sobriety and restraint. The Supreme Court noted that the Judge's remarks were unjustified and unwarranted, cautioning against using strong language while criticizing parties or witnesses.
Allegations of Fraud Issue: Allegations of fraud on the Court were raised in a review petition filed by an Advocate unrelated to the original litigation. The petition alleged that the State Government had obtained a judgment through fraud. The High Court dismissed the review petition citing lack of locus standi, maintainability, and delay, without considering the merits of the fraud allegations.
Professional Conduct Issue: The Advocate General was criticized by a Judge for allegedly not acting honestly and bona fide in briefing the Chief Minister, leading to a misleading press statement and an embarrassing situation for the Courts. The Judge opined that the Advocate General's actions were not befitting the status of the High Office and lacked courage to face the situation. The Supreme Court found these conclusions to be unjustified and unwarranted, emphasizing the importance of judicial discipline and respect in decision-making.
Jurisdiction Issue: The High Court Judge, while holding that the Court had no jurisdiction to entertain the review petition, made comments on the professional conduct of the Advocate without providing him an opportunity to respond. The Supreme Court regretted the unjustified remarks and expunged them from the order, highlighting that such comments were without jurisdiction and lacked justification. The Court allowed the appeal and refrained from awarding costs due to the respondent being an Advocate as well.
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1990 (3) TMI 374
Issues:
1. Whether the sum transferred to contingency reserve account is liable for deduction in arriving at the taxable income.
2. Whether the accrued liability for pension valued actuarially is an admissible deduction in computing the business income.
Analysis:
1. The first issue pertains to the transfer of a sum to a contingency reserve account and its tax implications. The Tribunal referred questions regarding this transfer under the Income-tax Act, 1961. The Court, relying on a previous decision, held that the sum transferred is not liable for deduction in arriving at the taxable income. The Court emphasized the statutory obligations and provisions governing such transfers, ultimately ruling in favor of the revenue.
2. The second issue revolves around the pension liability of the assessee. The company made a provision for pension liability based on actuarial calculations. However, the Income Tax Officer (ITO) disallowed the claim for this assessment year. The Commissioner (Appeals) and the Tribunal upheld this decision, noting that no fund was created for pension payments and that the liability arises only upon retirement or similar events. The Court highlighted the company's inconsistent approach of claiming deductions based on both actual payments and actuarial provisions simultaneously. It emphasized the need for consistency in the method of claiming deductions, ultimately ruling in favor of the revenue.
3. The Court cited a previous case to distinguish between accrued liability based on actuarial computations and liability arising from actual payments. It noted that while one method was followed in the cited case, the current assessee attempted to utilize two different methods simultaneously, which was deemed impermissible. The Court reiterated the principle that the company could only claim deductions when actual payments were made to employees, affirming the Tribunal's decision.
In conclusion, the Court addressed the issues concerning the contingency reserve account transfer and pension liability, emphasizing the need for adherence to consistent deduction methods and ruling in favor of the revenue in both instances.
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1990 (3) TMI 373
Issues Involved:
1. Jurisdiction of the proceedings under the amended Negotiable Instruments Act, 1881.
2. Retrospective application of the Amendment Act of 1988.
3. Interpretation of Section 138 and Section 141 of the Negotiable Instruments Act, 1881.
Detailed Analysis:
1. Jurisdiction of the Proceedings:
The petitioners challenged the jurisdiction of the proceedings initiated under Section 138, read with Section 141, of the Negotiable Instruments Act, 1881. They argued that the proceedings were without jurisdiction as the Amendment Act of 1988, which introduced these sections, came into force on April 1, 1989, whereas the alleged offence (issuance and dishonour of cheques) occurred before this date. The cheques were issued on January 28, 1989, and February 10, 1989, and were dishonoured on March 13, 1989, and again on April 13, 1989, after being re-presented. The complainant issued a notice on April 27, 1989, demanding payment within fifteen days, which was not met by the petitioners.
2. Retrospective Application of the Amendment Act of 1988:
The court examined whether the Amendment Act of 1988 had retrospective operation. The general principle is that unless a contrary intention appears, an enactment is presumed not to have retrospective operation. Article 20(1) of the Constitution prohibits convicting a person for an act that was not an offence at the time it was committed. The court referred to the European Convention of Human Rights and various judicial precedents, which support the principle that an act or omission is not criminal unless forbidden by law at the time it was done. The court concluded that the Amendment Act of 1988, which created a new offence, does not have retrospective operation. Therefore, the accused cannot be prosecuted under Sections 138 and 141 for acts committed before April 1, 1989.
3. Interpretation of Section 138 and Section 141 of the Negotiable Instruments Act, 1881:
Section 138 stipulates that dishonour of a cheque for insufficiency of funds constitutes an offence, provided certain conditions are met, including the cheque being presented within six months, notice being given to the drawer within fifteen days of dishonour, and failure to make payment within fifteen days of receiving the notice. Section 141 relates to offences by companies. The court noted that all ingredients of the offence must occur after the Amendment Act came into force. Since the cheques were issued and initially dishonoured before April 1, 1989, the provisions of the Amendment Act could not be applied retrospectively to prosecute the petitioners. The court emphasized that the substantive law creating the offence must be in force at the time the acts complained of were committed.
Conclusion:
The court allowed the application, quashing the impugned proceedings. It held that the provisions of Sections 138 and 141 of the Negotiable Instruments Act, 1881, as amended by the Amendment Act of 1988, could not be applied retrospectively to acts committed before April 1, 1989. The judgment also applied to another application being Criminal Revision No. 2277 of 1989.
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1990 (3) TMI 372
Issues Involved:
1. Validity of the rule prohibiting migration from the Medical College.
2. Alleged violation of Article 14 of the Constitution of India.
3. Compliance with Medical Council of India guidelines.
4. Discretionary issuance of No Objection Certificates (N.O.C.).
5. Petitioner's specific grounds for migration.
6. Compliance with procedural requirements for transfer to Municipal Medical Colleges.
Detailed Analysis:
1. Validity of the Rule Prohibiting Migration:
The petitioner challenged the rule of the Mahatma Gandhi Institute of Medical Sciences, which prohibits migration to other medical colleges. The rule states, "No application for migration to other Medical College will be entertained from the students admitted to this Institute." The respondents justified this rule by explaining that it ensures the institute's capacity for training and education is maximized and prevents seats from falling vacant mid-course, thereby not depriving other eligible candidates of admission.
2. Alleged Violation of Article 14:
The petitioner argued that the rule violates Article 14 of the Constitution of India, which guarantees equality before the law. The court referenced the Supreme Court decision in S. Azeez Basha v. Union of India [1968]1SCR833, which held that different universities could have different rules based on their unique problems and objectives. The court concluded that the rule prohibiting migration has a reasonable nexus with the objective sought to be achieved and does not violate Article 14.
3. Compliance with Medical Council of India Guidelines:
The petitioner contended that the rule against migration contradicts the guidelines of the Medical Council of India (MCI), which allow for student migration between recognized medical colleges. However, the court noted that these guidelines are merely advisory and do not have statutory force. The court cited Diploma in Medical Practice Association, Nagpur v. The Medical Council of India (1969)71BOMLR587, which clarified that MCI resolutions are advisory and cannot override statutory regulations. Therefore, the guidelines cannot compel the institute to permit migration.
4. Discretionary Issuance of No Objection Certificates (N.O.C.):
The petitioner argued that the institute had previously granted N.O.C.s to other students, suggesting discriminatory treatment. The respondents admitted that while the rule generally prohibits migration, exceptions are made in genuine cases. They stated that the petitioner's case did not present sufficient grounds for an N.O.C. The court found no mala fides in the respondents' decision and upheld their discretion in granting N.O.C.s.
5. Petitioner's Specific Grounds for Migration:
The petitioner cited health issues (allergic bronchial asthma) and her mother's illness as grounds for migration. The respondents countered that the petitioner had not provided sufficient medical evidence or complaints during her stay at the institute. They also offered to have the petitioner examined by a Medical Board, which the petitioner did not pursue. The court found the respondents' grounds for denying the N.O.C. to be genuine and not discriminatory.
6. Compliance with Procedural Requirements for Transfer:
The petitioner failed to meet the procedural requirements set by the Bombay Municipal Corporation for transferring to a Municipal Medical College. The deadline for submitting necessary documents, including the N.O.C., was 31st January 1990, which the petitioner missed. Consequently, her application was not considered, and all available seats were filled by other candidates who complied with the requirements.
Conclusion:
The court dismissed the petition, finding no violation of Article 14, no statutory compulsion to follow MCI guidelines, and no discrimination in the respondents' discretionary issuance of N.O.C.s. The petitioner's failure to comply with procedural requirements further undermined her case. The petition was dismissed with no order as to costs.
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1990 (3) TMI 371
Issues involved: Determination of whether a sale of land agreed upon before attachment prevails over the attachment.
Summary:
The High Court of Kerala held that the sale would be subject to attachment as the property was attached before the sale deed was executed. However, the appeal challenged this view. Relevant statutory provisions were considered, including Order 38 Rule 10 of the CPC, Section 40 of the Transfer of Property Act, and Section 91 of the Trusts Act. The Madras High Court's stance was cited, stating that a purchaser under an antecedent agreement obtains good title despite attachment. Similar views were expressed by the Calcutta, Bombay, and Travancore-Cochin High Courts. In contrast, the Punjab & Haryana High Court deemed such sales void against attaching creditors, citing Section 64 of the CPC. The Delhi High Court, aligning with the former view, emphasized that the contractual obligation from a pre-attachment agreement should prevail over the rights of the attaching creditor. Consequently, the appeal was allowed, reversing the High Court's order and restoring that of the trial court, with no order as to costs.
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1990 (3) TMI 370
Issues Involved:
1. Validity of the Government Order dated 9th July 1975.
2. Validity of the State Government's Order dated 23rd April 1976.
3. Applicability of the Government Orders dated 6th September 1969 and 9th July 1975.
4. Rights of candidates under the terms of the advertisement.
5. Impact of retrospective application of amended rules.
Summary:
1. Validity of the Government Order dated 9th July 1975:
The appellants challenged the validity of the Government Order dated 9th July 1975, arguing it was inconsistent with Rule 10 of the 1966 Rules and violated Articles 16(1) and 16(4) of the Constitution of India. The High Court rejected these contentions, holding that the directions in the Government Order were not violative of Rule 10(2) and did not breach Article 16 of the Constitution.
2. Validity of the State Government's Order dated 23rd April 1976:
The appellants contested the State Government's Order dated 23rd April 1976, which directed the Commission to prepare a revised list of successful candidates per the Government Order dated 9th July 1975. The appellants argued that the revised list was illegal and contrary to the rules since the advertisement had been issued in May 1975, before the Government Order dated 9th July 1975. The Supreme Court found the State Government's interpretation of para 11 of its Order dated 9th July 1975 incorrect and ruled that the Commission rightly followed the mode of selection prescribed under the Government Order dated 6th September 1969.
3. Applicability of the Government Orders dated 6th September 1969 and 9th July 1975:
The Supreme Court examined which Government Order the Commission was required to follow in preparing the select list. The Court concluded that para 11 of the Government Order dated 9th July 1975 saved the selections where reservations had already been made and advertisements issued before its enactment. Therefore, the Commission correctly followed the procedure under the Government Order dated 6th September 1969.
4. Rights of candidates under the terms of the advertisement:
The Court emphasized that candidates acquire a vested right to be considered for selection according to the terms and conditions of the advertisement. This right crystallizes on the date of the advertisement unless the advertisement indicates otherwise. The Court held that the appellants had a vested right to be considered for selection under the rules and orders existing at the time of the advertisement.
5. Impact of retrospective application of amended rules:
The Court reiterated that a statutory rule or Government Order is generally prospective unless explicitly or implicitly made retrospective. The Court cited precedents to support that selections should be regulated by the rules and orders in force at the time of the advertisement unless the amended rules are retrospective. The Court found that para 11 of the Government Order dated 9th July 1975 indicated that the revised directions would not apply to pending selections.
Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's order, and directed the State Government to appoint the appellants to the posts of Tehsildars based on the additional list published by the Commission on 18th March 1976. The Court also directed that the appellants be appointed with retrospective effect, creating supernumerary posts if necessary, and placed below the last candidate appointed in 1976 for seniority purposes, without entitlement to back wages. The respondents' appointments were not interfered with due to the long duration of their service.
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1990 (3) TMI 369
Issues Involved:
1. Whether a writ petition lies against a Co-operative Society, and if it does, in what circumstances?
2. Whether the bye-laws framed by a Co-operative Society have the force of law?
3. Whether the appellant in W.A. No. 69/1986 is a 'State' within the meaning of Art. 12?
4. Whether a writ petition lies to enforce the terms of a non-statutory contract?
Summary:
1. Whether a writ petition lies against a Co-operative Society, and if it does, in what circumstances?
The Court examined the applicability of writ petitions against Co-operative Societies. It was established that a writ petition can lie against a Co-operative Society if it is characterized as a 'State' within the meaning of Art. 12 of the Constitution. This is because such a society must follow its bye-laws in the interest of fairness, ensuring compliance with Art. 14. Even if a society is not a 'State', a writ can lie to enforce a statutory public duty.
2. Whether the bye-laws framed by a Co-operative Society have the force of law?
The Court held that the bye-laws of a Co-operative Society do not have the force of law. They are considered terms of a contract between the Society and its employees or members. This was affirmed by the Supreme Court in Co-operative Central Bank Ltd. v. Industrial Tribunal, Hyderabad, and B.K. Garad v. Nasik Merchants' Co-operative Bank Ltd. The Court emphasized that the power to make laws belongs to the Legislature and other authorities empowered by the Constitution, and bye-laws do not constitute delegated legislation.
3. Whether the appellant in W.A. No. 69/1986 is a 'State' within the meaning of Art. 12?
The Court applied the tests from Ramana Dayaram Shetty and Ajay Hasia v. Khalid Mujib to determine if the appellant, Sree Konaseema Co-operative Central Bank, is a 'State'. It found that the Government's shareholding was negligible and the Bank did not enjoy a monopoly status or deep and pervasive State control. Therefore, the appellant-Society cannot be characterized as a 'State' within the meaning of Art. 12.
4. Whether a writ petition lies to enforce the terms of a non-statutory contract?
The Court reiterated that mandamus, certiorari, and prohibition are public law remedies and are not available to enforce private law rights. A contractual obligation that is not statutory cannot be enforced by way of a writ petition under Art. 226 of the Constitution. This principle was affirmed by the Supreme Court in various cases, including Radhakrishna Agarwal v. State of Bihar and L.I.C. of India v. Escorts Ltd. The Court also discussed the impact of Section 47 of the A.P. Shops and Establishments Act, which provides certain protections to employees and can be enforced by a writ of mandamus in appropriate cases.
Application of Principles:
- W.A. No. 69/1986: The respondent's termination was found to violate Section 40 of the A.P. Shops and Establishments Act. The Court directed the respondent to file an appeal, and pending the appeal, the respondent shall continue in service.
- W.P. No. 13286/1988: The petition was dismissed as it lacked allegations that the respondent-Bank is a 'State' within the meaning of Art. 12.
- W.P. No. 1780/1989: The petition was dismissed as there was no basis for interference with the suspension order. The petitioner was advised to approach the Co-operative authorities.
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1990 (3) TMI 368
Issues Involved:
1. Justification of the Tribunal's upholding of the order passed by the Commissioner of Income-tax u/s 263 of the Income-tax Act, 1961.
2. Applicability of section 215 of the Income-tax Act, 1961 to the instant case.
Summary:
Issue 1: Justification of the Tribunal's Upholding of the Order u/s 263
The Tribunal upheld the Commissioner of Income-tax's order u/s 263, which found the assessment order by the Income-tax Officer (ITO) to be erroneous and prejudicial to the interests of the revenue. The Commissioner issued a notice to the assessee to show cause for not revising the assessment order, which did not charge interest under section 215. The assessee's objections included the doctrine of merger, waiver of interest by the ITO, and pendency of proceedings u/s 154. The Tribunal dismissed these objections, stating that the doctrine of merger did not apply, and no inference of waiver could be drawn without a specific order. The Tribunal emphasized that the liability to pay interest u/s 215 is automatic and unqualified, and the pendency of proceedings u/s 154 does not bar the invocation of jurisdiction u/s 263.
The High Court, however, found merit in the assessee's argument that section 263 applies only where an order has been passed by the ITO. Since the ITO did not pass an order charging interest u/s 215, the Commissioner could not compel the ITO to pass such an order. The Court noted that the assessment order under section 143(3) does not include the levy of interest, which is determined after the assessment is completed. Thus, the Commissioner's action to revise the assessment order for not charging interest u/s 215 was beyond the scope of section 263.
Issue 2: Applicability of Section 215
The Tribunal held that section 215 was applicable as the assessee filed a valid estimate of income and paid advance tax, albeit less than the estimated amount. The Tribunal noted that short payment of advance tax on the basis of the assessee's estimate falls within the ambit of section 215. The High Court, however, declined to answer this question due to the resolution of the first issue in favor of the assessee.
Conclusion:
The High Court answered question No. 1 in the negative, in favor of the assessee, and declined to answer question No. 2. There was no order as to costs.
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1990 (3) TMI 367
Issues Involved:
1. Validity of the Chancellor's power under Section 31(8)(a) of the Uttar Pradesh State Universities Act, 1973.
2. Whether the Chancellor's decision is quasi-judicial or administrative.
3. Compliance with prescribed qualifications for the post of Reader in Psychology.
4. The role and authority of the Selection Committee and Executive Council in university appointments.
Summary:
1. Validity of the Chancellor's Power u/s 31(8)(a) of the Act:
The Chancellor of Lucknow University, exercising power u/s 31(8)(a) of the Uttar Pradesh State Universities Act, 1973, directed the appointment of the appellant as Reader in Psychology. The High Court quashed this order, leading to the present appeal.
2. Quasi-Judicial vs. Administrative Nature of the Chancellor's Decision:
The High Court held that the Chancellor's power is quasi-judicial, requiring explicit reasons for his decision. However, the Supreme Court disagreed, stating that the Chancellor's function is administrative, not quasi-judicial. The Chancellor's decision is based on the recommendation of the Selection Committee and the opinion of the Executive Council, and does not require adherence to principles of natural justice.
3. Compliance with Prescribed Qualifications:
The Selection Committee found the appellant suitable based on her published work of high standard, despite lacking a Ph.D. degree. The Executive Council disagreed, stating she did not meet the essential qualifications. The Chancellor, however, supported the Selection Committee's recommendation, noting that the appellant met the alternate qualification as per Statute 11.01.
4. Role and Authority of the Selection Committee and Executive Council:
The Selection Committee, comprising experts, recommended the appellant for the post. The Executive Council, lacking subject experts, disagreed and preferred another candidate. The matter was referred to the Chancellor, whose decision is final. The Supreme Court emphasized that the Chancellor's decision should be based on the expert assessment by the Selection Committee and the Executive Council's opinion.
Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's judgment and the consequential order reverting the appellant to her previous post. The appellant's appointment as Reader remains undisturbed with all consequential benefits. The Court highlighted that judicial interference in academic appointments should be minimal, respecting the expertise of the Selection Committee.
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