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1954 (4) TMI 73
Issues:
1. Suit for possession and mesne profits.
2. Plaintiffs' claim to be the next reversioners.
3. Defence regarding Schedule III properties.
4. Admissibility of evidence for proving reversionership.
5. Claim of Schedule III properties belonging to Naubat Lal's estate.
Analysis:
1. The case involves an appeal and a cross-appeal against a judgment of the Patna High Court in a suit for possession and mesne profits. The property in question originally belonged to Naubat Lal Jha, and the plaintiffs claim to be the next reversioners. The defence challenges the plaintiffs' reversionership claim and specifically disputes the ownership of properties listed in Schedule III of the plaint.
2. The lower Courts have found that the second party plaintiffs have proven their title as the next reversioners to Naubat Lal Jha. The trial Court decreed the entire claim based on this finding, but the High Court upheld the defendants' argument regarding the Schedule III properties. The High Court modified the decree and dismissed the plaintiffs' claim to those specific properties.
3. The key issue regarding the reversionership claim revolves around the admissibility of evidence. The plaintiffs relied on a genealogical tree, primarily supported by the testimony of the 5th plaintiff. The lower Courts also used Panjis (pedigree records) as corroboration. The admissibility of these Panjis was challenged based on when they were dictated and maintained.
4. The Panjis, maintained by professional genealogists, were considered admissible evidence by the Courts. The entries in the Panjis were proven to be from proper custody and were maintained in the ordinary course of business. The Panjis were divided into two categories: those dictated by the 5th plaintiff and those dictated by others. Both sets were found to be admissible and provided sufficient corroboration for the plaintiffs' reversionership claim.
5. Regarding the Schedule III properties, the plaintiffs needed to establish that these properties formed part of Naubat Lal's estate to claim ownership. The widow, Mst. Chhemawati, purchased these properties using savings from her husband's estate. However, the widow's intention was crucial in determining whether these properties were part of her husband's estate or her separate property. The widow's dedication of the properties to family deities indicated her intention to keep them separate, as supported by the evidence presented.
6. In conclusion, the Supreme Court upheld the lower Courts' findings regarding the reversionership claim and the Schedule III properties. The defendants' appeal challenging the reversionership claim was dismissed, as the evidence presented was deemed legally admissible and sufficient. The plaintiffs' appeal regarding the Schedule III properties was also dismissed, as the evidence supported the widow's intention to keep those properties separate from her husband's estate.
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1954 (4) TMI 72
Issues:
1. Delay in prosecution commencement.
2. Validity of prosecution under Defence of India Act.
3. Effect of repeal and expiry of statutes on prosecution.
Detailed Analysis:
1. The appeal by the State of Uttar Pradesh challenged the High Court's judgment quashing proceedings against the respondents under Section 120-B, I. P. C. read with Defence of India Rules. The prosecution alleged that the respondents violated the Non-Ferrous Metals Control Order, 1942, during 1943-1945, but no action was taken until January 1950. The Supreme Court criticized the delay, stating that serious offenses should not go unpunished due to investigative delays.
2. The respondents sought to quash the proceedings citing the expiry of the Defence of India Act and the repeal of the Government of India Act, 1935. The Sessions Judge upheld the trial magistrate's decision, emphasizing the continued applicability of the Defence of India Rules. However, the High Court criticized the Sessions Judge for excessive praise of the trial Court's judgment without proper legal analysis.
3. The High Court ruled that the Defence of India Act expired in 1946, and subsequent ordinances did not extend liability for offenses committed after their repeal. The Court also considered the effect of the repeal of the Government of India Act in 1950 on the prosecution. The Supreme Court concurred with the High Court's decision, emphasizing that without a saving clause, prosecutions under expired statutes cannot continue, even with the General Clauses Act.
4. The Supreme Court highlighted the importance of saving clauses in statutes to allow prosecutions post-expiry. The Ordinance XII of 1946 provided such a clause for offenses under the Defence of India Act, enabling prosecutions even after the Act's expiry. However, subsequent repeals and constitutional changes rendered the prosecution unsustainable, leading to the dismissal of the appeal by the State of Uttar Pradesh.
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1954 (4) TMI 71
Issues Involved:
1. Validity of the notification issued under section 269(1) of the Code of Criminal Procedure.
2. Denial of equal protection under article 14 of the Constitution.
3. Jurisdiction and procedural irregularities in the trial.
Detailed Analysis:
1. Validity of the Notification Issued Under Section 269(1) of the Code of Criminal Procedure:
The primary issue was whether the notification revoking jury trials for the "Burdwan Test Relief Fraud Cases" was within the powers conferred by section 269(1) of the Code of Criminal Procedure. The notification directed that these specific cases be tried by the Court of Sessions with the aid of assessors instead of by jury. The court held that section 269(1) allows the State Government to direct that the trial of all offences or any particular class of offences before any Court of Session shall be by jury, and it may revoke or alter such an order. However, the section does not empower the State Government to selectively revoke jury trials for specific cases or individuals while maintaining it for others accused of the same offences. The notification in question singled out the "Burdwan Test Relief Fraud Cases" and did not remove the offences from the list of those triable by jury, thus exceeding the powers conferred by section 269(1) and rendering the notification void and inoperative.
2. Denial of Equal Protection Under Article 14 of the Constitution:
The appellant contended that the notification violated his right to equal protection under article 14 of the Constitution. The High Court had upheld the notification, reasoning that the classification was reasonable due to the complexity and volume of evidence in these cases, which would be difficult for jurors to manage. However, the Supreme Court disagreed, stating that the classification must be based on substantial distinctions relevant to the object of the law. The mere volume of evidence and the potential difficulty for jurors to remember it did not justify the denial of jury trials. The court emphasized that such a basis was arbitrary, as similar complexities could arise in other cases involving the same offences, and assessors would not necessarily have a better memory than jurors. Consequently, the notification was deemed discriminatory and violative of article 14.
3. Jurisdiction and Procedural Irregularities in the Trial:
The appellant argued that the trial was vitiated due to procedural irregularities, specifically the denial of a jury trial. The court noted that section 536 of the Code of Criminal Procedure, which deals with procedural irregularities, did not apply to this case as the notification itself was beyond the powers conferred by section 269(1) and contravened article 14. The court also rejected the argument that the defect in the trial was cured by the continuation of the trial after the Constitution came into force. The discriminatory nature of the notification persisted, and the trial process could not be converted from one with assessors to one by jury mid-proceeding. The court referenced previous decisions, including Syed Kasim Razvi v. The State of Hyderabad and Habeeb Mahomed v. The State of Hyderabad, to support the view that discriminatory procedures could not be rectified after the fact, and the trial must be condemned as bad.
Conclusion:
The Supreme Court concluded that the notification was invalid as it exceeded the powers granted by section 269(1) of the Code of Criminal Procedure and violated the appellant's right to equal protection under article 14 of the Constitution. The trial conducted with the aid of assessors was therefore deemed invalid. The court allowed the appeal, set aside the appellant's conviction, and directed his release.
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1954 (4) TMI 70
Issues Involved:
1. Whether the undivided property not divided in definite portions stands in the way of obtaining an order under Section 25A(1) of the Indian Income Tax Act, 1922.
2. Whether the previous assessment as a Hindu undivided family (HUF) bars the applicant from obtaining an order under Section 25A(1).
3. Whether the findings of the Civil Judge regarding the nature of the property affect the application under Section 25A.
4. Whether the Income Tax Officer can reassess the status of the assessee based on new evidence.
Detailed Analysis:
Issue 1: Undivided Property and Section 25A(1)
The primary question was whether the undivided property held jointly by Baij Nath group and another group of the family, which had not been divided in definite portions, prevented the appellant from obtaining an order under Section 25A(1). The court clarified that Section 25A(1) requires the Income Tax Officer to be satisfied that the joint family property has been partitioned among the members in definite portions. If the property remains undivided, an order under Section 25A(1) cannot be passed, and the assessment must continue as a Hindu undivided family.
Issue 2: Previous Assessment as HUF
The court examined whether the previous assessments as a Hindu undivided family barred the applicant from obtaining an order under Section 25A(1). It was held that the mere fact of previous assessments does not bar the Income Tax Officer from reassessing the status of the assessee. The officer must determine whether the joint family property has been partitioned in definite portions. The court emphasized that the previous assessments do not create an estoppel or res judicata in income tax cases.
Issue 3: Findings of the Civil Judge
The findings of the Civil Judge in the partition suit were considered. The Civil Judge had determined that Baij Nath was not a member of a joint Hindu family with his nephews and that the properties in question were not ancestral or joint family properties. The court noted that these findings indicated that the property was held in common rather than as joint family property. This distinction was crucial because Section 25A(1) applies to joint family property, not property held in common.
Issue 4: Reassessment by Income Tax Officer
The court addressed whether the Income Tax Officer could reassess the status of the assessee based on new evidence. It was held that the Income Tax Officer is not barred from reconsidering the status of the assessee if new evidence is presented. The officer must determine whether the previous assessments were incorrect and whether the property was indeed joint family property or held in common. The court emphasized that the officer's duty is to assess the correct status based on the evidence available.
Conclusion:
The court concluded that Section 25A of the Indian Income Tax Act did not bar the Income Tax Officer from reassessing the status of Baij Nath. The officer must determine whether the property was joint family property and whether it had been partitioned in definite portions. The previous assessments as a Hindu undivided family do not create an estoppel or res judicata. The findings of the Civil Judge indicated that the property was held in common, not as joint family property, which affects the application of Section 25A. The court directed the parties to bear their own costs and answered the reference accordingly.
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1954 (4) TMI 69
Issues Involved:
1. Validity of the Rajasthan (Protection of Tenants) Ordinance, 1949.
2. Legality of the extension of the Ordinance by the Rajpramukh.
3. Compliance with Article 212A of the Constitution.
4. Merits of the case regarding the dispossession and possession of land.
Issue-wise Detailed Analysis:
1. Validity of the Rajasthan (Protection of Tenants) Ordinance, 1949:
The Ordinance No. 9 of 1949 was issued by the Rajpramukh on 21-6-1949. The State of Rajasthan was formed on 7-4-1949, and by Article 10(3) of the Covenant, the Rajpramukh was authorized to make and promulgate Ordinances for the peace and good government of the State of Rajasthan. The Ordinance No. 9 of 1949 was enacted in exercise of the said powers, and was, therefore, a perfectly valid piece of legislation on the date it was enacted.
2. Legality of the Extension of the Ordinance by the Rajpramukh:
The extension of the Ordinance beyond the initial two-year period was challenged on the grounds that it was ultra vires. The argument was two-fold:
- Firstly, it was contended that the extension was made by the Rajpramukh in his executive capacity, not as a legislative authority, and such delegation of legislative power was invalid.
- Secondly, it was argued that if the extension was made in exercise of legislative authority, it had to comply with Article 212A of the Constitution, which it did not.
The Court held that Sub-section (3) of Section 1 of the Ordinance did not delegate any power to the Rajpramukh but indicated that the Ordinance might be extended by the Rajpramukh, who was the legislative authority at the time. The notification extending the Ordinance was issued in accordance with this provision and was, therefore, valid.
3. Compliance with Article 212A of the Constitution:
The petitioners contended that the extension did not follow the procedure prescribed under Article 212A of the Constitution, which required the preparation of a Bill and the Rajpramukh's assent. The Court noted that the Rajpramukh had the power to legislate under Article 385 of the Constitution, and any irregularity in the mode of exercise of that power would not invalidate the law made and promulgated by the Rajpramukh. The affidavit filed by the Government indicated that the draft of the notification was submitted to and approved by the Rajpramukh, fulfilling the technical procedure required for draft legislation.
4. Merits of the Case Regarding the Dispossession and Possession of Land:
The petitioners argued that they were declared to be in lawful possession under Section 145, Cr. P. C., and should remain in possession until evicted according to law. The Court pointed out that the Rajasthan (Protection of Tenants) Ordinance superseded other laws, including the Code of Criminal Procedure. The Board of Revenue found that Bhomla was in possession until 1-7-1952 and had been dispossessed by Sadaria. The provisions of the Tenants Protection Ordinance provided a remedy for dispossession even if it occurred prior to two months of the preliminary order under Section 145, Cr. P. C. Therefore, the order of the Board of Revenue was upheld.
Conclusion:
The petition was dismissed, and each party was ordered to bear its own costs. The Court concluded that the extension of the Rajasthan (Protection of Tenants) Ordinance, 1949, was valid and complied with the necessary legal requirements. The merits of the case regarding possession were also decided in favor of the respondent, Bhomla.
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1954 (4) TMI 68
Issues Involved:
1. Conspiracy to cheat the Government.
2. Bribery.
3. Compliance with Section 257 of the Criminal Procedure Code.
4. Necessity of sanction under Section 197 of the Criminal Procedure Code.
Detailed Analysis:
1. Conspiracy to Cheat the Government:
The appellants were charged with conspiracy to cheat the Government by inflating the amount due for construction work. The prosecution alleged that the appellant S. K. Dutt, along with others, conspired to claim payment for roads that were purportedly constructed but were actually built by the military. The High Court of Calcutta convicted the appellants of conspiracy, reversing the Special Tribunal's acquittal on this charge. However, the Federal Court set aside the convictions due to procedural irregularities, specifically the refusal to issue process for defense witnesses, which was in contravention of Section 257 of the Criminal Procedure Code.
2. Bribery:
The appellants were also charged with bribery, with allegations that S. K. Dutt paid bribes to R. W. Mathams and P. C. Ghose to pass inflated bills. The Special Tribunal initially convicted the appellants on this charge, and the High Court of Calcutta upheld these convictions. The Federal Court, however, found that the appellants were not given a fair opportunity to present their defense witnesses, which could have potentially rebutted the bribery charges. The Supreme Court, therefore, concluded that the trial was unfair and the convictions could not stand.
3. Compliance with Section 257 of the Criminal Procedure Code:
A significant issue was the non-compliance with Section 257 of the Criminal Procedure Code, which mandates the issuance of process for defense witnesses unless specific reasons are recorded. The Federal Court observed that the Tribunal's refusal to issue process for witnesses listed by the defense was illegal and amounted to a serious procedural irregularity. The Supreme Court concurred, noting that the appellants were deprived of a fair trial as they were not given a reasonable opportunity to examine their witnesses, many of whom could not be traced due to the passage of time and the partition of India.
4. Necessity of Sanction under Section 197 of the Criminal Procedure Code:
In the appeal of R. W. Mathams, the question arose whether the prosecution was bad for want of sanction under Section 197 of the Criminal Procedure Code. The Privy Council had initially limited the appeal to this question but later allowed the appellant to also raise the issue of non-compliance with Section 257. The Supreme Court held that, based on precedents, sanction under Section 197 was not necessary for instituting proceedings on charges of conspiracy and bribery. However, the conviction was set aside due to the procedural irregularity under Section 257.
Conclusion:
The Supreme Court allowed the appeals, acquitting the appellants on the grounds that they were denied a fair trial due to the Tribunal's refusal to issue process for defense witnesses, which was a contravention of Section 257 of the Criminal Procedure Code. The necessity of sanction under Section 197 was answered in the negative, aligning with established judicial precedents.
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1954 (4) TMI 67
Issues Involved:
1. Validity of the Mines Creche Rules, 1946.
2. Validity of the Coal Mines Pithead Bath Rules, 1946.
3. Competency of the reference under Section 432, Criminal P. C.
4. Interpretation of Section 30(bb) and 30(bbb) of the Indian Mines Act, 1923.
5. Application of Article 228 of the Constitution.
6. Double delegation principle.
7. Constitutionality under Article 19(1)(g) of the Constitution.
8. Manager's liability under Section 16 of the Indian Mines Act, 1923.
9. Continuing offence under Section 42 of the Indian Mines Act, 1923.
Detailed Analysis:
1. Validity of the Mines Creche Rules, 1946:
The primary issue was whether the Mines Creche Rules, 1946, were ultra vires and without jurisdiction. The rules required colliery owners to construct creches and pithead baths. The court examined whether these rules exceeded the powers conferred by Section 30(bb) of the Indian Mines Act, 1923. The dissenting opinion held that the rules were invalid as they imposed requirements beyond the scope of the Act, such as the construction of elaborate facilities and provision of various items like medicines and toys, which were not contemplated by the Act. The majority opinion, however, found that the rules were within the legislative intent and necessary for the welfare of women and children in mines.
2. Validity of the Coal Mines Pithead Bath Rules, 1946:
Similar to the Mines Creche Rules, the Coal Mines Pithead Bath Rules, 1946, were scrutinized for being ultra vires. The dissenting opinion argued that the rules were invalid as they required facilities not specified in Section 30(bbb) of the Act, such as latrines and attendants' rooms. The majority opinion upheld the rules, stating that the requirements were within the legislative intent and necessary for the health and hygiene of mine workers.
3. Competency of the Reference under Section 432, Criminal P. C.:
The reference was made by the Special Magistrate under Section 432, Criminal P. C., questioning the validity of the rules. The dissenting opinion held the reference incompetent as Section 432 applies to Acts, Ordinances, or Regulations, not rules made under an Act. The majority opinion disagreed, stating that the rules, once published, had the effect as if enacted in the Act, thus falling within the scope of Section 432.
4. Interpretation of Section 30(bb) and 30(bbb) of the Indian Mines Act, 1923:
The court examined whether the rules made under these sections were consistent with the Act. The dissenting opinion found that the rules exceeded the powers conferred by these sections, while the majority opinion held that the rules were consistent with the legislative intent and necessary for the welfare of mine workers.
5. Application of Article 228 of the Constitution:
The court was asked to apply Article 228, which allows the High Court to withdraw cases involving substantial questions of law as to the interpretation of the Constitution. The court found that no substantial question of law regarding the interpretation of the Constitution was involved in these cases, thus Article 228 was not applicable.
6. Double Delegation Principle:
The dissenting opinion argued that the rules involved double delegation, as the Central Government delegated its rule-making power to the competent authority. The majority opinion held that there was no double delegation, as the competent authority's role was administrative, not legislative.
7. Constitutionality under Article 19(1)(g) of the Constitution:
The rules were challenged as violating the fundamental right to carry on any occupation, trade, or business. The court held that the restrictions imposed by the rules were reasonable and in the interest of the general public, thus not violating Article 19(1)(g).
8. Manager's Liability under Section 16 of the Indian Mines Act, 1923:
The court examined whether managers could be held liable for contraventions of the rules. The court held that under Section 16, managers, along with owners and agents, were responsible for ensuring compliance with the Act and the rules made thereunder.
9. Continuing Offence under Section 42 of the Indian Mines Act, 1923:
The court considered whether the failure to construct creches and pithead baths constituted a continuing offence. The court held that the contravention was a continuing offence, and therefore, the prosecution was not barred by the limitation period under Section 42.
Conclusion:
The majority opinion upheld the validity of the Mines Creche Rules, 1946, and the Coal Mines Pithead Bath Rules, 1946, finding them consistent with the legislative intent and necessary for the welfare of mine workers. The reference under Section 432, Criminal P. C., was deemed competent, and the rules were found not to involve double delegation or violate Article 19(1)(g) of the Constitution. Managers were held liable under Section 16 of the Indian Mines Act, 1923, and the contraventions were considered continuing offences. The dissenting opinion, however, found the rules invalid and the reference incompetent.
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1954 (4) TMI 66
Issues:
1. Validity of prosecution under section 14 of the Criminal Procedure Code.
2. Validity of sanction under section 197(1) of the Criminal Procedure Code.
3. Specification of the Court for trial under section 197(2) and the power of appointing a Special Magistrate under section 14.
4. Appointment of a Special Magistrate and transfer of the case.
Analysis:
The judgment by the Supreme Court addressed a petition challenging the validity of a prosecution under section 14 of the Criminal Procedure Code. The petitioners, including an Agricultural Demonstrator, were facing charges of cheating, criminal breach of trust, and criminal conspiracy, leading to financial losses for the Government of Madras. The petition sought to quash the proceedings on various grounds, including the constitutionality of section 14. The Court rejected the argument that section 14 violated the guarantee under article 14 of the Constitution, as the Special Magistrate was to conduct the trial under the normal procedure, without discriminatory practices.
Regarding the validity of the sanction under section 197(1) of the Criminal Procedure Code, the petitioners contended that the sanction was invalid as it did not disclose all facts constituting the offenses, as per the Privy Council case of Gokulchand Dwarkadas Morarka v. The King. However, the Court noted that any deficiencies in the sanction could be rectified during the trial through specific evidence, rendering the argument premature at the current stage.
The issue of specifying the Court for trial under section 197(2) and the power of appointing a Special Magistrate under section 14 was also raised. The petitioners argued that only the Government granting the sanction should specify the trial court, and the exercise of power under section 14 by another government would nullify the former's authority. The Court dismissed this argument, clarifying that the power to specify the Court under section 197(2) was discretionary and did not affect the appointment of a Special Magistrate under section 14.
Additionally, a point was raised concerning the appointment of a Special Magistrate and the transfer of the case. It was contended that without a fresh notification appointing the Special Magistrate, the case could not proceed. The State informed the Court of its willingness to issue the necessary notification, rendering the objection moot. Ultimately, all points raised by the petitioners were dismissed, and the petition was rejected. The Court highlighted the importance of following proper legal procedures and discouraged direct appeals to the Supreme Court without exhausting remedies at lower courts, unless warranted by valid reasons.
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1954 (4) TMI 65
Issues: Interpretation of agreement between applicant and Central Bank of India as treasurer and guarantee commission agent under Excess Profits Tax Act.
The judgment by the Allahabad High Court involved a reference under the Excess Profits Tax Act and the Indian Income-tax Act regarding the interpretation of an agreement dated 8th December 1935 between the applicant and the Central Bank of India. The agreement appointed the applicant as treasurer and guarantee commission agent at various branches. The duties of the applicant as treasurer included managing cash department staff, ensuring safe custody of assets, and being liable for any loss caused to the bank. As a guarantee commission agent, the applicant recommended borrowers to the bank and was responsible for their repayment, providing security, and incurring expenses for borrower solvency checks. The agreement specified separate remunerations for the roles of treasurer and guarantee commission agent.
The Court considered the distinction between service and business income. It highlighted that a servant works under the control of a master, while a businessperson operates independently with an interest in profits and losses. The Court analyzed previous cases to determine the nature of the relationship between the applicant and the bank. It emphasized that the applicant's work as treasurer involved serving the bank under its control, while his role as a guarantee commission agent indicated a business interest with risks and discretion. The Court referred to cases like L. N. Gadodia and Co., L. Jeewan Lal v. CIT, Inderchand Hari Ram v. CIT, and P. Stanwill and Co. v. CIT to establish the criteria for distinguishing between service and business agreements.
The Court rejected the argument that the income should not be split due to a single agreement. It cited precedents where income was divided based on distinct roles performed by an individual. Ultimately, the Court concluded that the remuneration received by the applicant as treasurer was salary for service to the bank, while the income earned as a guarantee commission agent constituted business income under the Excess Profits Tax Act. The judgment provided a detailed analysis of the agreement terms and the nature of the applicant's responsibilities, emphasizing the different characteristics of service and business income in the context of the roles performed by the applicant for the Central Bank of India.
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1954 (4) TMI 64
Issues Involved:
1. Post-Constitutional rights to property in Indian States that acceded to the Dominion of India.
2. Validity of grants made by rulers of Charkhari and Sarila before integration into the Indian Union.
3. The impact of the Constitution on the rights and properties in the acceding States.
4. Whether the revocation of grants by the Uttar Pradesh Government was lawful.
5. The applicability of Article 31(1) and Article 19(f) of the Constitution.
Issue-wise Detailed Analysis:
1. Post-Constitutional Rights to Property in Indian States that Acceded to the Dominion of India:
The petition under Article 32 raises an important question about the post-Constitutional rights to property situated in Indian States that were not part of British India before the Constitution but acceded to the Dominion of India shortly before the Constitution and became an integral part of the Indian Republic after it. The States in question here are Charkhari and Sarila. In British days they were independent States under the paramountcy of the British Crown. They acknowledged the British Crown as the suzerain power and owed a modified allegiance to it, but none to the Government of India. The sovereignty of the acceding States was expressly recognized and safeguarded in the Instruments of Accession.
2. Validity of Grants Made by Rulers of Charkhari and Sarila Before Integration:
The alienations in question were made in January 1948. On 5th January 1948, the Ruler of Sarila granted the village Rigwara to the petitioners and on 28th January 1948, the Ruler of Charkhari granted the villages Patha, Kua, and Aichana, also to the petitioners. The Vindhya Pradesh Government decided on 7th December 1948 to respect the impugned grants. The Revenue Minister's order stated that such grants made by the Rulers before signing the covenant should be respected. However, the Uttar Pradesh Government, in consultation with the Government of India, revoked the grants on 29th August 1952, alleging mala fide intentions behind these grants.
3. The Impact of the Constitution on the Rights and Properties in the Acceding States:
The Constitution came into force on 26th January 1950. The new Republic was born, and all derived their rights of citizenship from the same source and from the same moment of time. Article 1(1) sets out that India shall be a Union of States, and Article 5 defines Indian citizens, including the Rulers of Charkhari and Sarila and the petitioners. The Constitution blotted out all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands, prohibiting acts of arbitrary power.
4. Whether the Revocation of Grants by the Uttar Pradesh Government was Lawful:
The operative order of revocation was made by the Governor of Uttar Pradesh. The affidavit of the respondent shows that the Government decided to confirm all grants except those which were mala fide. The revocation was made in consultation with the Government of India. Jurists hold divergent views on the matter of acts of State. However, the Constitution prohibits acts of arbitrary power, and the present action of the State cannot be defended as an act of State.
5. The Applicability of Article 31(1) and Article 19(f) of the Constitution:
Article 31(1) of the Constitution is attracted, as also Article 19(f). The petitioners are entitled to a writ under Article 32(2). A writ will accordingly issue restraining the State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken. The petitioners will be paid their costs by the State of Uttar Pradesh. The intervener will bear its own.
Conclusion:
The Supreme Court allowed the writ, restraining the State of Uttar Pradesh from giving effect to the orders revoking the grants and directing it to restore possession to the petitioners if possession has been taken. The petitioners are entitled to their costs, and the intervener will bear its own costs.
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1954 (4) TMI 63
Issues Involved:
1. Whether the Petitioner Company is a partnership firm or a registered firm.
2. Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business.
3. Whether the remuneration received from the Mills Company is on account of service or is the remuneration for business.
4. Whether the principle of personal qualification referred to in section 2, clause (4), of the Excess Profits Regulation is applicable to the Petitioner Company.
Issue-wise Detailed Analysis:
1. Whether the Petitioner Company is a partnership firm or a registered firm:
This issue was not seriously pressed before the Supreme Court. The judgment notes that irrespective of whether the appellants are a partnership firm or a registered company, the principle of exclusion of income from the category of business income by reason of its depending wholly or mainly on personal qualifications would not apply. This is because the income could not be said to be from a profession, and neither a partnership firm nor a registered company could be said to possess personal qualifications in the acquisition of that income.
2. Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business:
The appellants were registered as a private limited company in Bombay, with the objects of carrying on all kinds of agency business. Under the Agency agreement, the appellants were appointed as agents for a period of 30 years. The agreement provided them with significant powers and discretion in the management of the Mills Company's business, subject only to general control and supervision by the Directors. The Supreme Court concluded that the appellants were not under the direct control and supervision of the Directors in the manner of their work, which is characteristic of a servant-master relationship. Instead, the appellants had the discretion to manage the business, enter into contracts, appoint and dismiss employees, and deal with the company as principals. Thus, the appellants were determined to be agents of the Mills Company, not employees.
3. Whether the remuneration received from the Mills Company is on account of service or is the remuneration for business:
The remuneration of the appellants was a commission on the sale proceeds of the company's products, which is more akin to the remuneration given by a principal to an agent rather than wages or salary. The Supreme Court emphasized that the nature and scope of the activities performed by the appellants, which included continuous operations and various services rendered as agents, constituted a business. The appellants' activities were not confined to one individual or concern, and the continuity of operations indicated that they were carrying on a business. Hence, the remuneration received was deemed to be income, profits, or gains from business.
4. Whether the principle of personal qualification referred to in section 2, clause (4), of the Excess Profits Regulation is applicable to the Petitioner Company:
This issue was also not seriously pressed before the Supreme Court. The judgment clarifies that the principle of personal qualification would not apply to the appellants, as the income in question could not be considered income from a profession. The appellants, being a private limited company, could not be said to possess personal qualifications relevant to the acquisition of the income.
Conclusion:
The Supreme Court concluded that the appellants were agents of the Mills Company and not employees. The activities performed by the appellants under the Agency agreement constituted a business, and the remuneration received was income, profits, or gains from that business. Consequently, the appellants were rightly assessed for excess profits tax, and the appeals were dismissed with costs.
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1954 (4) TMI 62
Issues Involved:
1. Whether the word "Rasoi" has a direct reference to the character or quality of the goods under Section 6(1)(d) of the Trade Marks Act, 1940.
2. If "Rasoi" does not have such a direct reference, must it still be proved to be distinctive to be eligible for registration?
3. Whether "Rasoi," even if distinctive, is ineligible for registration as it is a common word of the language.
Issue-wise Analysis:
1. Direct Reference to Character or Quality:
The primary issue is whether the word "Rasoi" has a direct reference to the character or quality of the goods, specifically hydrogenated ground-nut oil. Section 6(1)(d) of the Trade Marks Act, 1940, stipulates that a trade mark shall not be registered unless it contains or consists of one or more words having no direct reference to the character or quality of the goods. The term "Rasoi" translates to cook-room, kitchen, cooking, cookery, or cooked-food. Given that hydrogenated ground-nut oil is predominantly used for cooking, the term "Rasoi" directly refers to the character of the goods. The court emphasized that the term must be understood by the common public and not just by its dictionary meanings. The conclusion was that "Rasoi" implies a direct reference to the character of the goods and thus is not eligible for registration under Section 6(1)(d).
2. Requirement of Distinctiveness:
The second issue examines whether the mark "Rasoi" must be distinctive even if it does not have a direct reference to the character or quality of the goods. Section 6(1)(e) of the Trade Marks Act, 1940, requires that a trade mark must be distinctive to be eligible for registration. The court referred to precedents and statutory interpretations to conclude that distinctiveness is a requisite for all clauses under Section 6(1). The term "distinctive" means adapted to distinguish the goods of the proprietor from those of other persons. Therefore, even if "Rasoi" did not have a direct reference to the character or quality of the goods, it must still be proved to be distinctive to be eligible for registration.
3. Common Word and Monopoly:
The third issue addresses whether "Rasoi," even if distinctive, is ineligible for registration because it is a common word. Common words are considered public property, and no trader should monopolize them, depriving others of their legitimate use. This principle is generally upheld unless the common word has lost its primary meaning through long-term association with a particular trader's goods. In this case, "Rasoi" has not become distinctive of the applicant's goods. Therefore, the word "Rasoi" is ineligible for registration on the grounds that it is an ordinary word of the language, and no monopoly should be granted to any particular trader.
Conclusion:
The court concluded that the word "Rasoi" has a direct reference to the character and quality of the goods and is not eligible for registration under Section 6(1)(d). Even if it did not have such a reference, it must still be distinctive to be eligible for registration. Furthermore, as a common word, "Rasoi" is ineligible for registration because it has not become distinctive of the applicant's goods. The answers to the three questions were thus in the affirmative, requiring distinctiveness and disallowing the registration of common words without such distinctiveness.
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1954 (4) TMI 61
Issues Involved:
1. Existence of a custom of pre-emption in Banaras.
2. Applicability of the custom to non-natives or non-domiciled individuals.
3. Compliance with the demands as per Muhammadan Law.
4. Right of a landlord to claim pre-emption against his tenants.
Issue-wise Detailed Analysis:
1. Existence of a Custom of Pre-emption in Banaras:
The plaintiff claimed a customary right of pre-emption in Banaras, which was contested by the defendant. The trial court and the High Court both acknowledged the existence of such a custom in Banaras. The Supreme Court affirmed this finding, citing multiple judgments that recognized the custom of pre-emption in Banaras, including cases like *Chakauri Devi v. Sundari Devi*, *Ram Chandra v. Goswami Ram Puri*, and *Gouri Sankar v. Sitaram*. The Privy Council's stance in *Jadulal v. Janki Koer* was also referenced, which stated that once a custom is judicially recognized, it need not be proved repeatedly.
2. Applicability of the Custom to Non-natives or Non-domiciled Individuals:
The primary contention was whether the custom of pre-emption applied to individuals who were not natives or domiciled in Banaras. The lower courts held that the custom did not bind non-natives or non-domiciled individuals. However, the Supreme Court disagreed, stating that the right of pre-emption is an incident of property and attaches to the land itself, irrespective of the owner's domicile or nativity. The Court criticized the reliance on Roland Wilson's and Tyabji's interpretations, which were based on outdated and incorrect assumptions. The Court concluded that the custom of pre-emption in Banaras applies to all house properties within the city, regardless of the owner's domicile.
3. Compliance with the Demands as per Muhammadan Law:
The trial court found that the plaintiff did not make the requisite demands as mandated by Muhammadan Law, which was a necessary condition for claiming pre-emption. The High Court did not decide on this issue. The Supreme Court remanded the case to the High Court to determine whether the plaintiff complied with the demands in accordance with Muhammadan Law.
4. Right of a Landlord to Claim Pre-emption Against His Tenants:
The trial court did not address whether a landlord could exercise the right of pre-emption against his tenants. The High Court also left this issue undecided. The Supreme Court remanded this question to the High Court for determination.
Conclusion:
The Supreme Court allowed the appeal, set aside the judgments of the lower courts, and remanded the case to the High Court for consideration of the unresolved issues regarding the plaintiff's compliance with the demands as per Muhammadan Law and the landlord's right to claim pre-emption against his tenants. The appellant was awarded costs from respondent No. 1, with further costs to be determined based on the final outcome.
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1954 (4) TMI 60
Issues Involved:
1. Maintainability of the suit.
2. Date of enrolment and entitlement to pay.
3. Legality of discharge from service.
4. Claims for compensation and damages.
Detailed Analysis:
1. Maintainability of the Suit:
The defendant argued that the suit was not maintainable, citing the rule of English Law that a servant of the Crown cannot maintain a suit against the Crown. This was countered by referring to the Supreme Court decision in 'State of Bihar v. Abdul Majid,' which settled that a civil servant in India can maintain a suit for recovery of arrears of pay. The court ruled that the objection raised by the Union of India must be overruled, confirming the suit's maintainability.
2. Date of Enrolment and Entitlement to Pay:
The principal issue was the date of the plaintiff's enrolment. The court found that the plaintiff was enrolled on 19-3-1942, not 13-3-1942. Despite this, the plaintiff was paid at a civil rate of Rs. 150 per month until November 1943. The court noted that under Section 10 of the Indian Army Act, a person who has drawn pay and been borne on the rolls for six months is deemed to have been duly enrolled. The court concluded that the plaintiff should be entitled to the civil pay of Rs. 150 per month for the period of his service until his discharge.
3. Legality of Discharge from Service:
The plaintiff argued that he was discharged before the completion of his term. The court found that the enrolment paper indicated he was to remain in service during the war and a certain period thereafter "if required." The court held that the discharge was within the military authorities' rights and was not illegal. Therefore, the plaintiff was deemed to have been rightly discharged on 4-11-1945.
4. Claims for Compensation and Damages:
The plaintiff's various claims for compensation and damages were largely dismissed due to a lack of evidence or being too remote and far-fetched. Specific claims for ration allowance, night duty allowance, and travelling allowance were not substantiated. The court did recognize the plaintiff's entitlement to the difference in pay for the period from 1-12-1943 to 3-11-1945, amounting to Rs. 12278, with interest at six percent per annum from the date of discharge until payment.
Conclusion:
The appeal was allowed in part. The plaintiff was declared entitled to a basic pay of Rs. 150 per month for the period of his service, with the difference in pay for the specified period to be paid with interest. The court directed that the court-fees, which would have been paid by the plaintiff if not permitted to sue as a pauper, should be recovered from the Union of India by the State of West Bengal. The parties were directed to bear their respective costs, excluding the costs of court-fees.
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1954 (4) TMI 59
Issues Involved
1. Res judicata
2. Order II, Rule 2 of the Civil Procedure Code
3. Applicability of Section 90 of the Indian Trusts Act
Detailed Analysis
Res Judicata
The primary issue revolved around whether the plaintiff's claim was barred by the principle of res judicata. The court held that the compromise agreement, which was not found to be vitiated by fraud, misrepresentation, misunderstanding, or mistake, had the binding force of res judicata. The court emphasized that "a consent decree is as binding upon the parties thereto as a decree passed by invitum." The plaintiff's subsequent suit was found to be barred because the compromise had conclusively settled the accounts up to March 31, 1946, and precluded any further claims.
Order II, Rule 2 of the Civil Procedure Code
The court also examined whether the plaintiff's claim was barred under Order II, Rule 2(3) of the Civil Procedure Code. The plaintiff had confined his claim to accounts up to March 31, 1946, in the initial suit, thereby implicitly relinquishing his claim for the subsequent period. The court stated, "if a person omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted." The court concluded that the cause of action in both suits was the same-the desire to separate from his brothers and divide the joint family property. Therefore, the subsequent suit was barred under Order II, Rule 2(3).
Applicability of Section 90 of the Indian Trusts Act
The court briefly addressed the applicability of Section 90 of the Indian Trusts Act, which deals with the liability of co-owners to account for profits made from joint property. The trial court had applied this principle, treating the defendants as analogous to partners carrying on a partnership after dissolution. However, the Supreme Court found that this issue did not arise because the suit was already barred by res judicata and Order II, Rule 2(3). Therefore, the court did not delve deeper into the applicability of Section 90.
Conclusion
The Supreme Court allowed the appeal and dismissed the suit with costs, holding that the plaintiff's claim was barred by both res judicata and Order II, Rule 2(3) of the Civil Procedure Code. The court emphasized that the compromise agreement had conclusively settled the accounts up to March 31, 1946, and precluded any further claims. The applicability of Section 90 of the Indian Trusts Act was deemed irrelevant given the other findings.
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1954 (4) TMI 58
Issues Involved:
1. Interpretation of the term "individual" in Section 16(3)(a)(ii) of the Indian Income-tax Act, 1922.
2. Inclusion of the income of minor children in the total income of the mother for tax purposes.
3. Legislative intent behind Section 16(3) of the Indian Income-tax Act, 1922.
4. Principles of statutory interpretation in the context of taxing statutes.
Issue-wise Detailed Analysis:
1. Interpretation of the term "individual" in Section 16(3)(a)(ii) of the Indian Income-tax Act, 1922:
The core issue was whether the term "individual" in Section 16(3)(a)(ii) includes both males and females, or is limited to males. The court noted that the term "individual" is not defined in the Act or the General Clauses Act. The term "individual" should be interpreted in the context of the surrounding circumstances and the legislative intent. The court examined various commentaries and judicial precedents, including the decisions in Chorlton v. Lings, The Pharmaceutical Society v. The London and Provincial Supply Association, and Nairn v. University of St. Andrews, which emphasized that ambiguous terms must be interpreted in light of the surrounding circumstances and constitutional principles.
2. Inclusion of the income of minor children in the total income of the mother for tax purposes:
The court examined whether the income of the minor sons of the assessee should be included in her total income under Section 16(3)(a)(ii). The court noted that the legislative intent behind Section 16(3) was to prevent tax evasion through nominal partnerships and transfers of assets. The court observed that the language of Section 16(3)(a)(ii) was ambiguous, particularly the use of the term "such individual." The court concluded that the legislative intent was to prevent tax evasion by male assessees and that the inclusion of the income of minor children in the mother's total income was not intended.
3. Legislative intent behind Section 16(3) of the Indian Income-tax Act, 1922:
The court referred to the historical context and the legislative intent behind the enactment of Section 16(3). The provision was introduced to counteract tax evasion by male assessees through nominal partnerships and asset transfers to wives and minor children. The court noted that the Enquiry Committee's report and the statement of objects and reasons for the Amending Act of 1937 focused on tax evasion by male assessees. The court concluded that the legislative intent was not to impose additional tax burdens on female assessees by including the income of minor children arising from the benefits of partnership in the mother's total income.
4. Principles of statutory interpretation in the context of taxing statutes:
The court emphasized the principle that taxing statutes should be interpreted strictly, and any ambiguity should be resolved in favor of the taxpayer. The court referred to the maxim expressio unius est exclusio alterius, which means "the express mention of one thing implies the exclusion of another." The court noted that this maxim should be applied with caution and that the intention of the Legislature must be considered. The court also cited the principle that in case of ambiguity, taxing statutes should be construed in favor of the subject and against the imposition of tax.
Conclusion:
The court concluded that it was not the intention of the Legislature to include the income of minor children arising from the benefits of partnership in the total income of the mother. The court answered the question referred to it in the negative and held that the income of the minor sons of the assessee should not be included in her total income under Section 16(3)(a)(ii) of the Indian Income-tax Act, 1922. The assessee was awarded the costs of the reference, and the respondent was ordered to pay the costs of the paper book.
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1954 (4) TMI 57
Issues Involved:
1. Whether the transaction dated 15th April 1930 is a mortgage by conditional sale or an outright sale with a condition of repurchase.
Issue-wise Detailed Analysis:
1. Nature of the Transaction: Mortgage by Conditional Sale vs. Outright Sale
- Background: The plaintiff appeals in a suit for redemption of a mortgage dated 15th April 1930. The plaintiff argues that the transaction is a mortgage by conditional sale, while the first defendant contends it is an outright sale with a condition of repurchase.
- Previous Transactions: The property originally belonged to Bijai Tanti and was mortgaged multiple times before the disputed transaction. The second defendant obtained a decree on a prior mortgage and sold the property to the plaintiff.
- Plaintiff's Argument: The plaintiff claims the transaction of 15th April 1930 is a mortgage, and since the subsequent mortgagee was not joined in the earlier suit, the plaintiff is entitled to redeem.
- Defendant's Argument: The first defendant argues that the transaction was an outright sale with a covenant for repurchase, which became infructuous as no attempt was made to act on the covenant within the specified time.
- Trial and Appellate Court Findings: The trial court and lower appellate court held the document to be a mortgage, but the High Court on second appeal reversed these findings, holding it as a sale.
2. Interpretation of the Document
- Legal Principles: The intention of the parties is the determining factor. The document must be construed primarily from its language. If the words are clear, they must be given effect. Ambiguity allows for consideration of surrounding circumstances.
- Document Analysis: The document, Exhibit A, contains ambiguous language. It purports to be a sale but calls itself a "conditional sale." Clause 6 states that if the executants repay the consideration within two years, the property will revert to their possession, implying the title remains with them. Clause 7 suggests the sale becomes absolute if the money is not paid within the specified time.
- Section 58(c) of the Transfer of Property Act: The document fits the criteria of an "ostensible sale" with conditions that align with a mortgage by conditional sale. The presence of a single document and the fulfillment of section 58(c) conditions indicate it should be construed as a mortgage unless expressly stated otherwise.
3. Surrounding Circumstances and Intent
- Respondent's Reliance on Deed Clauses: The respondents highlight clauses indicating an absolute transfer of title and the use of the word "sale." However, the essence of a mortgage by conditional sale requires the form of a sale with attached conditions.
- Adequacy of Consideration and Absence of Interest: The consideration was deemed fair, and no interest was charged. The transferee was placed in possession and not required to account for the usufruct.
- Crucial Points: The executants borrowed Rs. 65-6-0 for commutation proceedings under section 40 of the Bihar Tenancy Act, indicating an ongoing interest in the property. The relationship of debtor and creditor existed at the time of the transaction, supporting the mortgage interpretation.
Conclusion:
- Judgment: The Supreme Court concluded that the document is a mortgage by conditional sale under section 58(c) of the Transfer of Property Act. The appeal was allowed, the High Court's decree was set aside, and the lower appellate court's decree was restored except as to costs.
- Costs: Each party was directed to bear its own costs due to the speculative nature of both sides.
Appeal allowed.
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1954 (4) TMI 56
Issues:
1. Determination of whether the wife was a benamidar for her husband in the context of income tax assessment.
2. Interpretation of deductions under Section 10(2)(x) and 10(2)(xv) of the Income-tax Act regarding commission payments to an employee based on net profits.
Analysis:
Issue 1:
The case involved assessing whether the wife of the assessee was a benamidar for him, specifically regarding two houses in her name. The Income-tax Officer had included the income from both houses in the assessee's income, but the Tribunal excluded one house based on the wife's ownership claim. The Tribunal questioned the credibility of the wife's claim of receiving gifts and funds from her father and father-in-law. The burden of proof was on the Department to show the wife was a benamidar, following legal precedents emphasizing the presumption that property in the wife's name belongs to her unless proven otherwise. The Tribunal's rejection of the wife's explanation alone was deemed insufficient to conclude the husband contributed to the purchase price, lacking supporting evidence or circumstances. The judgment highlighted the need for substantial evidence to support conclusions in such cases.
Issue 2:
The second issue revolved around the deduction of commission payments to an employee based on net profits. The Income-tax Officer had adjusted the net profits shown in the account books, leading to a dispute over whether the commission payable to the employee should be calculated based on the adjusted profits or the originally recorded profits. The Court ruled that deductions can only be claimed for amounts actually spent, emphasizing that until the payment is made, it cannot be considered an allowable deduction under the relevant sections of the Income-tax Act. The judgment clarified that deductions are contingent on actual payments made by the assessee, not on potential liabilities.
In conclusion, the judgment addressed complex issues related to income tax assessment, burden of proof in establishing benami transactions, and the criteria for claiming deductions under specific sections of the Income-tax Act. The detailed analysis provided insights into the legal principles governing such matters and emphasized the importance of substantial evidence and adherence to statutory provisions in tax assessments.
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1954 (4) TMI 55
Issues Involved:
1. Applicability of Section 34 of the Indian Income-tax Act, 1922, as amended by Act No. XLVIII of 1948.
2. Whether the decision of the Privy Council constitutes "definite information" under Section 34.
3. Legality of the assessment under Section 34 concerning the interest on arrears of rent.
Issue-wise Detailed Analysis:
1. Applicability of Section 34 of the Indian Income-tax Act, 1922, as amended by Act No. XLVIII of 1948
The Income-tax Officer initially assessed the Maharaja Bahadur Ramran Vijay Prasad Singh's income-tax excluding the interest on arrears of rent from agricultural land based on a Patna High Court decision. However, after the Judicial Committee reversed this decision in 1948, holding that such interest was taxable, the Income-tax Officer initiated proceedings under Section 34. The proceedings were started on 25th September 1948, and again on 18th March 1949, after an amendment to Section 34 with retrospective effect from 30th March 1948. The Appellate Tribunal held that even if the old Section 34 applied, the more stringent requirements of "definite information" and "discovery" were satisfied.
2. Whether the decision of the Privy Council constitutes "definite information" under Section 34
The Appellate Tribunal concluded that the decision of the Judicial Committee reversing the Patna High Court's view constituted "definite information" leading to the discovery that income had escaped assessment within the meaning of the old Section 34. This was a crucial point of contention, but the Tribunal found that the reversal of the Patna High Court's decision by the Judicial Committee met the criteria for "definite information."
3. Legality of the assessment under Section 34 concerning the interest on arrears of rent
When the case was brought before the High Court, the assessee's counsel conceded that the Judicial Committee's decision constituted "definite information." However, the counsel argued that the assessment made on 30th April 1949, was beyond the four-year limitation period prescribed under Section 34 (3) of the Act. This argument was not raised before the Appellate Tribunal or in the applications under Section 66(1) and 66(2). The High Court examined whether it could answer this new question of law, given that it was not raised earlier. The court held that under Section 66(1) and Section 66(2), the High Court's jurisdiction is limited to questions of law that were raised before the Tribunal and mentioned in the applications. Since the limitation issue was not raised earlier, the High Court declined to answer this question.
The High Court emphasized that its special advisory jurisdiction under Section 66(2) is conditional on the strict fulfillment of preliminary conditions, including that the question of law must have been raised before the Tribunal and mentioned in the applications. The court cited several precedents, including decisions from the Supreme Court and various High Courts, to support its interpretation that it could not entertain new issues not previously raised.
Conclusion:
The High Court declined to answer the question regarding the legality of the assessment under Section 34 in the form proposed by the assessee, as the issue of limitation was not raised before the Tribunal or in the applications under Section 66(1) and 66(2). The court upheld the Tribunal's decision that the Judicial Committee's reversal constituted "definite information" under Section 34, thereby justifying the reassessment.
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1954 (4) TMI 54
Issues Involved:
1. Delay in presenting the election petition.
2. Defective verification of the election petition.
3. Allegations of corrupt practices by the appellant.
Detailed Analysis:
1. Delay in Presenting the Election Petition:
The appellant contended that the election petition was presented out of time as it was delivered to the post office on 3rd April 1952 but reached the Election Commission on 5th April 1952, a day beyond the prescribed period. The Election Commission, however, condoned the delay by an order dated 2nd July 1952, exercising its discretion under the proviso to section 85 of the Representation of the People Act, 1951. The appellant argued that the Election Commission's order was invalid as it was passed suo motu without an application from the petitioner. The Court held that the proviso to section 85 does not require a formal application for condonation of delay and that the Election Commission's discretion in this matter is final and not open to challenge. The Court also noted that the delay of one day was minimal and would have been condoned even under section 5 of the Limitation Act. Therefore, the contention regarding the delay was rejected.
2. Defective Verification of the Election Petition:
The verification of the petition did not comply with the requirements of section 83(1) of the Act and Order VI, rule 15(2) of the Civil Procedure Code, as it did not specify which paragraphs were verified on personal knowledge and which on information received. The Election Commission suggested that the petitioner apply to the Election Tribunal for amending the verification, which was done on 24th July 1952. The appellant argued that the petition should have been dismissed for defective verification under section 85. The Court held that the Election Tribunal has the discretion under section 90(4) of the Act to dismiss a petition for non-compliance with sections 81, 83, or 117, but it chose not to do so in this case. The Tribunal's order to allow the amendment of the verification was within its jurisdiction and not subject to interference.
3. Allegations of Corrupt Practices by the Appellant:
The Election Tribunal found that three corrupt practices were established against the appellant:
- Inducing the third respondent to withdraw from the election on a promise to get him employment, violating section 123(1) of the Act.
- Using a bus to convey electors to polling booths, in breach of section 123(6) of the Act.
- Obtaining assistance from Extra Departmental Agents and Presidents of Choukidari Union, considered Government servants, for canvassing, contravening section 123(8) of the Act.
The Supreme Court noted that the findings regarding the first two corrupt practices were based on evidence and could not be characterized as perverse. The Court does not interfere with factual findings of Election Tribunals unless they are perverse or based on no evidence. The Court found the findings of the Election Tribunal to be supported by evidence and thus upheld them.
Conclusion:
The Supreme Court dismissed the appeal, confirming the Election Tribunal's decision to set aside the appellant's election. The objections regarding the delay in presenting the petition and defective verification were overruled, and the findings of corrupt practices were upheld as being supported by evidence. The appeal was dismissed with costs.
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