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1982 (4) TMI 297
Issues Involved:
1. Validity of the interim injunction granted by Modi, J.
2. Applicability of the Bombay Tenancy and Agricultural Lands Act, 1948 to the disputed lands.
3. Validity of the reference made to the Mamlatdar under Section 85-A of the Bombay Tenancy Act.
4. Effect of the notifications under Section 88 of the Bombay Tenancy Act on the plaintiffs' tenancy claims.
5. Relevance of Section 43-C and the proviso to the Bombay Tenancy Act in the context of the case.
Detailed Analysis:
1. Validity of the Interim Injunction Granted by Modi, J.
The plaintiffs sought a permanent injunction to prevent the appellants from trespassing, dispossessing, or constructing on the disputed lands. Modi, J. granted an interim injunction restraining the appellants from interfering with the plaintiffs' possession or constructing on the land, while allowing limited construction of a compound wall and facilities along the periphery. The appellants contested this order, leading to the current appeal.
2. Applicability of the Bombay Tenancy and Agricultural Lands Act, 1948 to the Disputed Lands
The plaintiffs claimed tenancy rights under the Bombay Tenancy and Agricultural Lands Act, 1948, asserting adverse possession and tenancy since 1903. However, the defendants argued that the lands were excluded from the Tenancy Act's provisions due to notifications under Section 88 (1) (b) reserving the lands for non-agricultural and industrial development.
3. Validity of the Reference Made to the Mamlatdar under Section 85-A of the Bombay Tenancy Act
Modi, J. referred the issue of tenancy to the Mamlatdar under Section 85-A of the Bombay Tenancy Act. The Tahsildar and the Additional Collector subsequently ruled that the Tenancy Act did not apply, as the lands were within the municipal limits and reserved for non-agricultural purposes. The plaintiffs' revision application is pending before the Maharashtra Revenue Tribunal.
4. Effect of the Notifications under Section 88 of the Bombay Tenancy Act on the Plaintiffs' Tenancy Claims
The notifications dated 29th March 1957, under Section 88 (1) (b) of the Tenancy Act, excluded the lands from the Act's provisions, making any tenancy claims by the plaintiffs untenable. The court noted that the imperative language of Section 88 ("Nothing in the foregoing provisions of the Act shall apply") effectively nullified any tenancy rights under Sections 1 to 87-A of the Act.
5. Relevance of Section 43-C and the Proviso to the Bombay Tenancy Act in the Context of the Case
The plaintiffs argued that their tenancy rights were preserved under the proviso to Section 43-C. However, the court found this argument irrelevant, as Section 43-C pertained to lands within municipal limits and the proviso aimed to restore rights affected by amendments in 1952 and 1955, which did not apply to lands reserved under Section 88 (1) (b). The court emphasized that the lands in question were already within the Malad municipal limits before the critical date, thus not benefiting from the proviso to Section 43-C.
Conclusion:
The court concluded that the reference to the Mamlatdar was unnecessary and invalid, as the lands were excluded from the Tenancy Act's provisions by the 1957 notification. Consequently, the interim injunction granted by Modi, J. was to be reconsidered without regard to the plaintiffs' tenancy claims under the Tenancy Act. The appeal was allowed, setting aside Justice Kania's order and directing the Notice of Motion to be heard on merits in June 1982.
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1982 (4) TMI 296
Issues:
1. Taxability of refund received by the assessee from the State Electricity Board.
2. Interpretation of the nature of the refund - revenue or capital receipt.
3. Application of Section 41(1) of the Income-tax Act, 1961.
4. Comparison of subsidies and grants received by the assessee.
Detailed Analysis:
1. The judgment involves an appeal by the assessee regarding the taxability of a refund received from the State Electricity Board during the assessment year 1978-79. The refund was related to current charges paid by the assessee for a specific period. The assessee contended that the refund was a subsidy from the Government, capital in nature, and not a revenue receipt.
2. The assessee argued that the refund was part of a package of incentives provided by the State Industries Promotion Corporation of Tamil Nadu Ltd. The refund was considered a contribution towards capital outlay of the industrial unit, as per Circular No. 142, which classified certain subsidies as capital receipts. The assessee claimed that the refund was intended to help the growth of industries and not to supplement profits, aligning with the purpose of capital subsidies.
3. The Income Tax Officer (ITO) and the Commissioner (Appeals) applied Section 41(1) of the Income-tax Act, 1961 to deem the refund as taxable income. However, the assessee cited a Special Bench decision and argued that the refund should be treated as a capital receipt based on the nature and purpose of the subsidy received, which was primarily for the growth of industries and capital contribution.
4. The judgment delves into the details of the incentives provided by the State Industries Promotion Corporation of Tamil Nadu Ltd., highlighting that the concessional power tariff, under which the refund was received, was a part of a scheme to promote industrial growth. The judgment emphasizes that the refund was a method to implement the subsidy and contribute towards the capital outlay of the industrial unit, distinguishing it from revenue receipts.
5. Ultimately, the appellate tribunal ruled in favor of the assessee, holding that the refund received, along with the saved amount due to concession, amounted to a capital receipt totaling a specific sum. The tribunal concluded that the entire amount was capital in nature and not taxable as income, aligning with the argument that the subsidy was intended to facilitate industrial growth and contribute to capital investment.
6. The appeal was allowed in favor of the assessee, emphasizing that the refund received and the concession saved were considered capital receipts, totaling a specific amount that was deemed non-taxable income based on the nature and purpose of the subsidy provided.
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1982 (4) TMI 295
Issues:
Infringement of trade marks, copyrights, passing off, jurisdiction of the Court in relation to the action of infringement of trademark and passing off.
Analysis:
The plaintiff, a well-established company, filed a suit against the defendant for infringement of trade marks, copyrights, passing off, and seeking an injunction to restrain the defendant from manufacturing, selling, or dealing in washing soaps under deceptively similar trade marks and wrappers as the plaintiff's products. The plaintiff alleged that its trade mark "501" for half bar washing soap, along with the unique wrapper design, has acquired a significant reputation among consumers and in the market. The defendant, on the other hand, started marketing a similar product with the trade mark "507" and wrappers that closely resembled the plaintiff's unique design. The defendant challenged the jurisdiction of the Court, arguing that the business was conducted outside the Court's territorial jurisdiction. However, the Court noted that the plaintiff's products were sold within the Court's jurisdiction, justifying the Court's jurisdiction over the matter.
The Court examined the similarities between the plaintiff's and defendant's products, emphasizing the deceptive similarity in the wrapper designs and trade marks used by both parties. Despite the defendant's argument that the numerals "507" were not identical or deceptively similar to the plaintiff's "501," the Court found that the overall effect of the defendant's wrapper, including the numerals, created confusion among consumers and constituted an infringement of the plaintiff's trade marks and copyrights. The Court highlighted the extensive popularity of the plaintiff's product and the likelihood of confusion among consumers due to the deceptive similarity between the wrappers.
Regarding the overlapping scopes of copyright and trade mark registrations, the Court acknowledged that where a design is registered under the Copyright Act, there could be an overlap with trade mark protection. The Court concluded that it had jurisdiction to grant an injunction for both trade mark infringement and copyright violation, especially considering the specific averment that the plaintiff sold goods within the Court's jurisdiction. Consequently, the Court granted an injunction restraining the defendant from infringing the plaintiff's trade marks, copyrights, and passing off its products as those of the plaintiff during the pendency of the suit.
In conclusion, the Court ruled in favor of the plaintiff, granting the injunction sought and leaving the costs of the application to be determined in the main proceedings.
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1982 (4) TMI 294
Issues:
Challenge to order of transfer, jurisdiction of High Court under Section 115 C.P.C., maintainability of revision petition, exercise of inherent powers under Section 151 C.P.C., compliance with provisions of Sub-section (2) of Section 80 C.P.C.
Analysis:
1. The judgment pertains to an application challenging an order of transfer issued to the plaintiff, who subsequently filed a suit seeking to declare the transfer order as void and illegal. The Munsiff granted an ex parte temporary injunction restraining the implementation of the transfer order. The revision petition was filed against this injunction order.
2. The issue of maintainability of the revision petition was raised, with the plaintiff arguing that the High Court cannot entertain the revision petition as an appeal lies to a subordinate court. However, the court clarified that the amended Section 115 C.P.C. bars revision against orders appealable to either the High Court or a subordinate court.
3. The court examined whether the Munsiff correctly exercised his inherent powers under Section 151 C.P.C. The plaintiff contended that the order was passed under Order 39, Rule 2 C.P.C., making it appealable and not amenable to revision. However, the court found that the Munsiff explicitly stated he exercised inherent powers, making the order challengeable through revision.
4. The court delved into precedents where inherent powers were invoked contrary to specific provisions of the CPC. It was established that inherent powers should not override existing procedural rules unless in exceptional circumstances where the Code is silent. The court cited cases emphasizing that inherent powers should not be used when specific provisions exist for the same matter.
5. The crucial issue was whether the Munsiff correctly invoked Section 151 C.P.C. to grant the temporary injunction. The court analyzed the provisions of Sub-section (2) of Section 80 C.P.C., which mandate giving the government an opportunity to show cause before granting urgent relief. The court found that the Munsiff's decision to bypass this requirement and use inherent powers was unjustified, especially considering the lack of urgency in the plaintiff's actions.
6. Ultimately, the court held that the Munsiff's order exceeded jurisdiction by not adhering to the mandatory provisions of Sub-section (2) of Section 80 C.P.C. and by invoking inherent powers against clear legal provisions. Consequently, the petition was allowed, the injunction order was set aside, and the rule was made absolute with no costs awarded.
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1982 (4) TMI 293
Issues:
1. Specific performance of lease agreement
2. Allegations of trespass and wrongful possession
3. Interlocutory reliefs sought by the defendant
Specific Performance of Lease Agreement:
The plaintiff filed a suit against the defendant, seeking specific performance of an agreement for a lease of a portion of premises in Calcutta. The agreement involved a building lease for 50 years with an option for renewal, rent terms, and a premium payment. The plaintiff claimed that the agreement was reached orally and through subsequent actions. The defendant, however, denied the existence of a concluded contract and opposed specific performance.
Allegations of Trespass and Wrongful Possession:
Disputes arose regarding possession of the plot, with the defendant alleging trespass and wrongful possession by the plaintiff. The defendant claimed obstruction and trespass by the plaintiff, leading to police complaints and legal proceedings. The plaintiff, on the other hand, asserted continuous possession since 1978 without objection, denying the defendant's allegations and asserting rightful possession.
Interlocutory Reliefs Sought by the Defendant:
The defendant sought interlocutory reliefs, including a receiver over the plot, injunctions against construction and parking activities by the plaintiff, and authorization for the receiver to collect fees for parking. The court considered the defendant's entitlement to such reliefs, emphasizing the need for equity and preservation of the property's status quo pending the suit's outcome. The court granted an injunction against further construction by the plaintiff until the suit's disposal, allowing the defendant to seek further interim orders if necessary.
This judgment highlights the complexities of lease agreement disputes, allegations of trespass, and the legal principles governing interlocutory reliefs in such cases. The court's decision to grant specific interlocutory reliefs while maintaining the property's status quo reflects the balance of equities and preservation of rights pending final adjudication.
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1982 (4) TMI 292
Issues Involved:
1. Whether the mark 'OSSO' adopted by the respondents-judgment-debtors is deceptively similar to the registered trademark 'ESSCO' of the petitioners-decree-holders.
2. Whether the adoption and use of the mark 'OSSO' amounts to disobedience of the decree for permanent injunction passed by the Court on July 30, 1980.
3. Whether the words 'SCO' and 'OSSO' were unauthorizedly added to the compromise petition.
4. Whether the judgment-debtors' use of the mark 'OSSO' was dishonest.
Detailed Analysis:
1. Deceptive Similarity of 'OSSO' to 'ESSCO':
The main question for determination was whether the mark 'OSSO' adopted by the respondents-judgment-debtors is deceptively similar to the registered trademark 'ESSCO' of the petitioners-decree-holders. The Court noted that under Section 2(1)(d) of the Trade and Merchandise Marks Act, 1958, a mark is deemed deceptively similar if it so nearly resembles another mark as to be likely to deceive or cause confusion. Factors considered included the nature of the marks, the degree of resemblance (phonetic, visual, and similarity in idea), the nature and purpose of the goods, the class of purchasers, and the mode of purchase. The Court concluded that the marks 'OSSO' and 'ESSCO' were deceptively similar, noting that the offending mark 'OSSO' had taken a substantial part of the registered mark 'ESSCO' and that the two marks were too close phonetically, visually, and in similarity in idea.
2. Disobedience of the Decree:
The decree passed on July 30, 1980, restrained the judgment-debtors from infringing the registered trademark 'ESSCO' by adopting or using the mark 'ESSO' or any other deceptively or confusingly similar mark. The Court had to determine whether the use of 'OSSO' constituted disobedience of this decree. It was found that the judgment-debtors' use of 'OSSO' was indeed in willful disobedience of the decree, as 'OSSO' was deceptively similar to 'ESSCO'.
3. Unauthorized Addition of 'SCO' and 'OSSO':
The judgment-debtors contended that the words 'SCO' and 'OSSO' were unauthorizedly added to the compromise petition. The Court observed that these words were handwritten in the compromise petition and only bore the initials of the decree-holders' counsel. For the purposes of deciding the application, it was agreed that the words 'SCO' and 'OSSO' would not be treated as part of the compromise application. The Court excluded these words from clause (iv) of the compromise deed for the judgment.
4. Dishonest Use of 'OSSO':
The Court found that the adoption of the mark 'OSSO' by the judgment-debtors was dishonest. There was no evidence to suggest that 'OSSO' was descriptive of the goods or represented the names of the partners or proprietors of the defendant firm. The judgment-debtors had previously been restrained from using 'ESSO' and conveniently adopted 'OSSO', which was found to be in no way different from 'ESSO'. The Court concluded that the judgment-debtors' intentions were dishonest, and their use of 'OSSO' was a clear attempt to circumvent the decree.
Conclusion:
The Court held that the mark 'OSSO' was deceptively similar to 'ESSCO' and that the judgment-debtors had disobeyed the decree for permanent injunction. The judgment-debtors were warned and directed to stop using the mark 'OSSO' within one month, failing which they would be liable to be detained in civil prison. The decree-holders were entitled to costs and could move the Court for further directions if necessary.
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1982 (4) TMI 291
Issues Involved:
1. Constitutional validity of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use, or Sale Therein Act, 1979 (Entry Tax Act, 1979).
2. Binding nature of the High Court's previous judgment declaring the Entry Tax Act, 1979 unconstitutional.
3. Effect of the Supreme Court's judgment upholding the Entry Tax Act, 1979.
4. Impact of subsequent legislative actions including the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use, or Sale Therein (Repeal) Act, 1981.
Issue-Wise Detailed Analysis:
1. Constitutional Validity of the Entry Tax Act, 1979:
The petitioners challenged the constitutional validity of the Entry Tax Act, 1979, which came into force on 1-6-1979. Initially, a Division Bench of the Karnataka High Court declared the Act unconstitutional in a common order dated 24-8-1979, and issued a mandamus restraining the State from enforcing the Act. However, the Supreme Court in State of Karnataka v. M/s Hansa Corporation (1980) reversed this decision, upholding the constitutional validity of the Entry Tax Act, 1979.
2. Binding Nature of the High Court's Previous Judgment:
The petitioners contended that the High Court's order dated 24-8-1979, which declared the Entry Tax Act, 1979 unconstitutional, had become final for them as no appeals were preferred to the Supreme Court from that order concerning their writ petitions. They argued that the State and its officers were bound by that order and could not enforce the Entry Tax Act, 1979 against them.
3. Effect of the Supreme Court's Judgment:
The State argued that the Supreme Court's judgment upholding the Entry Tax Act, 1979 was a judgment in rem, binding on every court, authority, and person. Additionally, Section 3 of the Repealing Act, 1981 rendered ineffective every judgment or order of the High Court that had declared the Entry Tax Act, 1979 unconstitutional, and made the mandamus unenforceable.
4. Impact of Subsequent Legislative Actions:
After the Supreme Court's judgment, the Karnataka legislature enacted the Repealing Act, 1981, which included Section 3 stating that the Entry Tax Act, 1979 shall be deemed always to have been valid and in force, notwithstanding any judgment, decree, or order of any court. The petitioners argued that Section 3 did not remove the defects found by the High Court in the Entry Tax Act, 1979. However, the court held that since the Supreme Court had reversed the High Court's decision, there were no longer any defects in the Entry Tax Act, 1979. Thus, Section 3 of the Repealing Act, 1981 effectively re-enacted the Entry Tax Act, 1979, making the High Court's previous mandamus ineffective.
Conclusion:
The High Court dismissed the appeals, concluding that the Supreme Court's judgment and subsequent legislative actions rendered the previous High Court judgment and mandamus ineffective. The Entry Tax Act, 1979 was deemed valid and enforceable. The court directed the parties to bear their own costs and declined to grant the certificate prayed for by the appellants.
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1982 (4) TMI 290
Issues Involved:
1. Jurisdiction of the Registrar under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960.
2. Locus standi of the society for transposition as a co-disputant.
3. Whether the claim for ejectment is a "dispute touching the business of the society" under Section 91(1) of the Act.
Issue-wise Detailed Analysis:
1. Jurisdiction of the Registrar under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960:
The primary question was whether the dispute between the appellant and respondent No. 1 regarding the flat should be adjudicated by the Registrar under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960, or by the Court of Small Causes under Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The court held that the relationship between the parties was that of licensor and licensee, not landlord and tenant. The appellant failed to prove his status as a tenant and thus could not invoke the protection of the Rent Act. The court emphasized that the non-obstante clause in Section 91(1) of the Act had an overriding effect over Section 28 of the Rent Act before the introduction of Sections 15A and 5(4A) in the Rent Act. Therefore, the Registrar had jurisdiction to adjudicate the dispute.
2. Locus standi of the society for transposition as a co-disputant:
The appellant questioned the legality of the Maharashtra State Cooperative Tribunal's order allowing the society to be transposed as a co-disputant. The court noted that the appellant had previously challenged this order through a writ petition, which was dismissed by the High Court. Since the appellant did not contest the High Court's judgment, the Tribunal's order attained finality. The court found that the society, being a co-partnership type housing society, had a vital interest in ensuring that no unauthorized person occupied the flat. Thus, the society had the locus standi to be transposed as a co-disputant to bring the dispute within the purview of Section 91(1) of the Act.
3. Whether the claim for ejectment is a "dispute touching the business of the society" under Section 91(1) of the Act:
The court examined whether the claim for ejectment fell within the meaning of "dispute touching the business of the society" under Section 91(1) of the Act. It referred to the case of Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Jugraj Jain & Ors., which defined "business" in a narrower sense as the actual trading or commercial activity authorized by the society's bye-laws. The court distinguished the present case from the Sabharwal Brothers case, noting that the society had not sold the flat outright but had let it under Regulations in Form-A. The court concluded that the dispute over the flat's possession was indeed a "dispute touching the business of the society" because it concerned the society's interest in ensuring compliance with its bye-laws and regulations regarding the occupation of flats by its members and nominal members.
Conclusion:
The appeal was dismissed, affirming the jurisdiction of the Registrar under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960, to adjudicate the dispute. The society had the locus standi to be transposed as a co-disputant, and the claim for ejectment was deemed a dispute touching the business of the society. The court emphasized that the appellant, being a licensee and not a tenant, did not have the protection of the Rent Act and was thus subject to the jurisdiction of the cooperative society's regulatory framework.
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1982 (4) TMI 289
Issues Involved
1. Whether the coins inserted in the slot of video game machines constitute "payment for admission to entertainment" under the Gujarat Entertainments Tax Act, 1977.
2. Interpretation of the terms "entertainment," "admission to an entertainment," and "payment for admission" as defined in the Act.
Issue-wise Detailed Analysis
1. Whether the coins inserted in the slot of video game machines constitute "payment for admission to entertainment" under the Gujarat Entertainments Tax Act, 1977.
The petitioners installed video game machines in parlours with unrestricted and free admission. Players could use the machines by inserting two fifty-paise coins, which activated the machine for gameplay. The petitioners argued that the coins were hire charges for using the machine, not for admission to the parlour.
The Mamlatdar (Entertainment Tax) concluded that the use of the video game machines fell within "payment for admission" under Section 2(g)(iv) of the Act, making the proprietors liable for entertainment tax. The petitioners challenged this under Article 226 of the Constitution of India.
The court examined whether the coins inserted in the video machines amounted to "payment for admission to entertainment." The definitions in Sections 2(a), 2(e), and 2(g) of the Act were analyzed. The court found that "payment for admission" typically refers to payment for entering a place where entertainment is held, not for using a machine within that place.
2. Interpretation of the terms "entertainment," "admission to an entertainment," and "payment for admission" as defined in the Act.
The Act defines "entertainment" as any exhibition, performance, amusement, game, or sport to which persons are admitted for payment. "Admission to an entertainment" includes admission to any place where such entertainment is held. "Payment for admission" includes various types of payments related to gaining entry or additional access within an entertainment venue.
The court referenced several precedents, including the Division Bench's interpretation in Liberty Talkies v. State and the Madhya Pradesh High Court's ruling in Calico Mills Ltd. v. State of Madhya Pradesh. These cases emphasized that "entertainment" involves an organized activity providing amusement or gratification to spectators, and "payment for admission" pertains to entry fees for such activities.
In the current case, the court noted that the video game machines did not provide organized entertainment by the proprietors. The players' thrill from gameplay was subjective and not the type of entertainment envisaged by the Act. The court agreed with the Madhya Pradesh High Court's view in Harris Nelson v. State of M.P., which held that activities requiring personal performance by visitors do not constitute entertainment provided by proprietors.
Conclusion
The court concluded that the proprietors of the parlours were not liable to pay entertainment tax on the coins inserted into the video game machines. The machines did not provide organized entertainment as defined under the Act, and the payments were for playing the game, not for admission to an entertainment.
The court quashed the orders demanding entertainment tax from the petitioners and directed the respondents to desist from recovering such tax. The rule in each petition was made absolute, and the respondents were ordered to pay the petitioners' costs.
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1982 (4) TMI 288
Issues Involved:
1. Whether the premises in question are "public premises" within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
2. Whether the leases in question are valid under Section 175(3) of the Government of India Act, 1935 or Article 299(1) of the Constitution.
3. Whether the appellants can challenge the validity of the leases.
4. Whether the premises "belong" to the Central Government even if the leases are invalid.
Detailed Analysis:
1. Whether the premises in question are "public premises" within the meaning of Section 2(e) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971:
The primary issue was whether the premises are "public premises" under Section 2(e) of the Act. The premises were not owned or requisitioned by the Central Government but were taken on lease. The government argued that they "belong to" the Central Government due to their possession and payment of rent. The court examined the definition of "public premises" and concluded that the premises in question, being taken on lease by the Central Government, fall within the definition of "public premises" under the Act.
2. Whether the leases in question are valid under Section 175(3) of the Government of India Act, 1935 or Article 299(1) of the Constitution:
The court analyzed whether the leases complied with the statutory requirements under Section 175(3) of the Government of India Act, 1935, or Article 299(1) of the Constitution. It was established that the leases were monthly and did not require a registered deed under Section 107 of the Transfer of Property Act. The court examined the relevant documents and correspondence, concluding that valid leases existed between the landlords and the Government of India, even if formal lease agreements were not executed.
3. Whether the appellants can challenge the validity of the leases:
The court held that the appellants, being allottees from the Government, were estopped from challenging the validity of the leases. It was established that the Estate Officer and the Appellate Authority under the Act had jurisdiction to pass eviction orders once the factum of lease was established. The court further held that the validity of the leases could not be questioned by the appellants in a collateral proceeding.
4. Whether the premises "belong" to the Central Government even if the leases are invalid:
The court considered whether the premises could be said to "belong to" the Central Government due to its absolute right of user. It was concluded that the expression "belonging to" includes not only ownership but also rights lesser than ownership, such as an absolute right of user. The court held that the premises, being in the possession of the Government and allotted by it, could be considered to "belong to" the Central Government, thus falling within the definition of "public premises."
Conclusion:
The appeals were dismissed with costs. The court held that the premises in question are "public premises" within the meaning of the Act, the leases are valid, and the appellants cannot challenge their validity. Additionally, the premises "belong to" the Central Government, even if the leases were found to be invalid. The appellants were given time to vacate the premises by 31st July 1982. Leave to appeal to the Supreme Court was refused.
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1982 (4) TMI 287
Issues Involved:
1. Proper construction of the terms of tenancy.
2. Applicability of the East Punjab Rent Restriction Act, 1949.
3. Grounds for eviction: wrongful sub-letting and non-payment of rent.
4. Legality of sub-letting under the terms of the tenancy and the Act.
5. Determination of the timing of sub-tenancies.
6. Validity of evidence, specifically tape-recorded conversations.
7. Continuation of tenancy rights after the expiry of the contractual period.
Detailed Analysis:
1. Proper Construction of the Terms of Tenancy:
The appellant occupied the premises as a tenant from April 1, 1974, under a rent note dated April 2, 1974. The rent note included terms such as a monthly tenancy, a fixed rent of Rs. 450 per month, and the tenant's right to sub-let the flat and Barsati portions. The tenancy was initially for one month, ending on April 30, 1974.
2. Applicability of the East Punjab Rent Restriction Act, 1949:
The landlady filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, seeking eviction on grounds of non-payment of rent and sub-letting. The Rent Controller ordered eviction only on the ground of sub-letting. The tenant's appeals to the Appellate Authority and the High Court were dismissed, prompting the present appeal to the Supreme Court.
3. Grounds for Eviction: Wrongful Sub-letting and Non-payment of Rent:
The Rent Controller dismissed the ground of non-payment of rent but ordered eviction based on sub-letting. The Appellate Authority and the High Court upheld this decision. The Supreme Court needed to determine if the sub-letting was wrongful under the Act.
4. Legality of Sub-letting under the Terms of the Tenancy and the Act:
The tenant argued that Clause 8 of the rent note explicitly allowed sub-letting of the flat and Barsati portions. The tenant contended that the sub-letting was done with the landlady's written consent, as required by Section 13(2)(ii)(a) of the Act, and thus could not be a ground for eviction.
5. Determination of the Timing of Sub-tenancies:
The Supreme Court remitted the issue of when the sub-tenants were inducted to the Rent Controller. The Rent Controller found that sub-letting occurred in May 1974, but this finding was disputed. The Supreme Court concluded that there was no proper evidence to support the Rent Controller's finding and that the sub-letting occurred in April 1974, during the contractual tenancy.
6. Validity of Evidence, Specifically Tape-recorded Conversations:
The Rent Controller's finding was based on a tape-recorded conversation, which the Supreme Court deemed inadmissible as primary evidence. The Court held that tape-recorded conversations could only be used as corroborative evidence and, in the absence of direct evidence of the conversation, could not be relied upon.
7. Continuation of Tenancy Rights after the Expiry of the Contractual Period:
The tenant argued that even after the expiry of the contractual tenancy, the tenancy continued under the Act on the same terms and conditions, including the right to sub-let. The Supreme Court agreed, noting that the Act protects tenants from eviction except in accordance with its provisions. The Court held that lawful sub-letting with the landlord's written consent does not become unlawful merely because the contractual tenancy has ended.
Conclusion:
The Supreme Court concluded that the tenant lawfully sub-let the premises with the landlady's written consent during the contractual tenancy in April 1974. The mere continuance of sub-tenants in possession after April did not constitute wrongful sub-letting. The landlady had no valid ground for eviction under Section 13(2)(ii)(a) of the Act. The appeal was allowed, and the eviction order set aside. The tenant was granted costs.
Appeal allowed.
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1982 (4) TMI 286
Issues Involved:
1. Review of order-in-appeal.
2. Registration of contracts for concessional duty under Heading 84.66 of C.T.A., 1975.
3. Interpretation of "substantial expansion" versus "modernization and revamping."
4. Compliance with the Project Import (Registration of Contract) Regulations, 1965.
5. Relevance of industrial licence amendment under Section 13 of the Industries (Development and Regulation) Act, 1951.
Issue-wise Detailed Analysis:
1. Review of Order-in-Appeal:
The Government of India issued a notice to review the order-in-appeal No. S/49-1369/79R, dated 20-3-1980, passed by the Appellate Collector of Customs, Bombay. The review was conducted under Section 131(3) of the Customs Act, 1962. The respondents replied to the notice on 5th February 1981. The proceedings were transferred to the Tribunal for disposal under Section 131B(2) of the Act.
2. Registration of Contracts for Concessional Duty:
The respondents applied for registration of contracts for importing goods required for the modernization of the Rourkela Steel Plant under Heading 84.66 of C.T.A., 1975, which provides a concessional rate of duty. The goods were covered by three import licenses dated 29-8-1978 and endorsed as "Project Import." The Assistant Collector rejected the application, stating that the goods were not required for the initial setting up or substantial expansion of a unit, and thus did not fall under Heading 84.66.
3. Interpretation of "Substantial Expansion" versus "Modernization and Revamping":
The Appellate Collector observed that modernization and revamping could result in substantial expansion. He noted that the modernization program would increase the actual working capacity by 56% and the installed capacity by 10%. He argued that "substantial expansion" should be interpreted in terms of actual working capacity rather than licensed capacity. The Assistant Collector's narrow interpretation of "modernization" and "revamping" was criticized for not considering the broader aspects of modern technology and productivity improvements.
4. Compliance with the Project Import (Registration of Contract) Regulations, 1965:
The show cause notice alleged non-compliance with the requirement of an industrial license amendment showing permission for substantial expansion as per Section 13 of the Industries (Development and Regulation) Act, 1951. The respondents argued that the modernization and revamping were approved by the Project Investment Board and endorsed as Project Imports by the Chief Controller of Imports and Exports. The Assistant Collector's rejection was based on a narrow interpretation, while the Appellate Collector's order was considered well-reasoned and judicious.
5. Relevance of Industrial Licence Amendment under Section 13 of the Industries (Development and Regulation) Act, 1951:
The review notice focused on the lack of an industrial license amendment for substantial expansion. The respondents contended that substantial expansion should be interpreted as commonly understood, involving any modification that results in a significant increase in production. They provided evidence of substantial increases in production capacity and improved control systems. The Appellate Collector's order was upheld, as the conditions for registration were substantially fulfilled, and the Assistant Collector's denial of registration was found to be unjustified.
Conclusion:
The Tribunal upheld the order-in-appeal and discharged the review notice, dismissing the appeal. The Tribunal found that the conditions for registration under the Project Import (Registration of Contract) Regulations, 1965, were substantially fulfilled, and the Assistant Collector's rejection was not justified. The modernization and revamping of the Rourkela Steel Plant were deemed to constitute substantial expansion, warranting the concessional rate of duty under Heading 84.66 of C.T.A., 1975.
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1982 (4) TMI 285
Issues:
1. Conviction under the Gold (Control) Act, 1968
2. Reduction of sentence
3. Validity of prosecution without clearance from the Government of India
4. Ownership of the Bahikhatas and related business
5. Reliance on admissions made by the accused
6. Proof of entries in the Bahikhatas
7. Presumption under Section 67 of the Gold (Control) Act
8. Definition of 'gold' under the Gold (Control) Act
9. Lack of evidence for conviction
10. Discharge of the applicant in Criminal Revision No. 1756 of 1980
Analysis:
1. The judgment involved two connected Criminal Revisions where the first revision challenged the conviction under the Gold (Control) Act, 1968, and the second revision challenged the reduction of the sentence imposed on the applicant. The Additional Sessions Judge maintained the conviction but reduced the sentence from two years to nine months of rigorous imprisonment.
2. The case revolved around a joint raid conducted at a residence where Bahikhatas containing entries of gold transactions were recovered. The applicant accepted that the Bahikhatas related to his business, distancing his father from involvement. However, the prosecution failed to establish ownership of the Bahikhatas and the related business conclusively.
3. The judgment highlighted the necessity of obtaining clearance from the Government of India before launching a prosecution under the Gold (Control) Act. The circular letter imposed restrictions on prosecutions, requiring clearance in certain cases. The lack of clearance in the present case raised doubts about the validity of the prosecution.
4. The prosecution heavily relied on admissions made by the applicant regarding the Bahikhatas. However, the defense argued that these admissions were made under duress to protect the applicant's father, who suffered from a heart ailment.
5. The proof of entries in the Bahikhatas was crucial for the prosecution. The court noted that secondary evidence could not be given without establishing the correctness of the original entries. Witnesses failed to adequately prove the entries, casting doubt on the prosecution's case.
6. The judgment also discussed the presumption under Section 67 of the Gold (Control) Act regarding entries in the Bahikhatas. However, since the Bahikhatas were seized from a different individual than the accused, no presumption could be made, necessitating proper proof of the entries.
7. The definition of 'gold' under the Gold (Control) Act was analyzed concerning the applicant's dealings in gold ornaments. The prosecution failed to demonstrate that the ornaments dealt with by the applicant met the purity requirements to be classified as gold under the Act.
8. Ultimately, due to various shortcomings in the prosecution's case, including lack of conclusive evidence, failure to establish ownership of the Bahikhatas, and procedural irregularities regarding clearance for prosecution, the court allowed Criminal Revision No. 1756 of 1980. The applicant's conviction and sentence were set aside, and the applicant was discharged without the need to surrender. Criminal Revision No. 213 of 1981 was dismissed.
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1982 (4) TMI 284
Issues:
Violation of Rule 56C of the Central Excise Rules, 1944; Imposition of penalties on the appellants without proper application of the rule; Discrepancy in the application of rule 56C by the Central Excise authorities.
Analysis:
The judgment involves three appeals filed by Central India Machinery Manufacturing Company Limited (CIMMCO) and Man Structural Limited (MAN) against Orders 10/81 and 11/81 passed by the Additional Collector of Central Excise, Jaipur. The appeals were consolidated due to similar issues. CIMMCO, licensed to manufacture goods under Tariff Item 68, had a contract with National Thermal Power Corporation Limited (NTPCL) for hydraulic gates. A sub-contract with MAN for fabrication led to Central Excise Officers finding MAN fabricating gates for CIMMCO without following rule 56C. The Additional Collector imposed penalties on CIMMCO and MAN, releasing seized goods on payment of duty. The appellants argued that the rule's application was discretionary, supported by correspondence with Central Excise authorities. The Board reviewed submissions and found the authorities uncertain about rule 56C's application, concluding that the rule's benefits were optional for the assessee, and penalties were unwarranted. The Board set aside the penalties imposed on both appellants.
This judgment primarily addresses the violation of Rule 56C of the Central Excise Rules, 1944, by CIMMCO and MAN, leading to penalties imposed by the Additional Collector. The issue revolves around whether the appellants were obligated to work under rule 56C, as alleged by the Central Excise authorities. The judgment clarifies that the application of rule 56C is at the discretion of the assessee, as per the rule's provisions, and cannot be enforced unilaterally by the authorities. The Board's analysis highlights that the authorities themselves were unsure about the rule's applicability in this case, indicating that the penalties imposed lacked proper justification. Therefore, the judgment emphasizes the importance of understanding the discretionary nature of rule 56C and the need for clarity in its application by the Central Excise authorities.
Furthermore, the judgment delves into the procedural aspects of the case, including the interactions between the appellants and the Central Excise authorities regarding the application of rule 56C. The correspondence between CIMMCO and the authorities, as presented by the appellants, played a crucial role in demonstrating that the authorities were not insistent on rule 56C's application. The Board's thorough review of the case records and submissions highlighted the lack of clarity and certainty on the part of the authorities regarding the rule's enforcement. This scrutiny led to the conclusion that the penalties imposed on CIMMCO and MAN were unjustified, as the rule's discretionary nature was not properly considered by the authorities. Consequently, the judgment emphasizes the importance of clear communication and understanding between the assessee and the authorities regarding the application of relevant rules and procedures in excise matters.
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1982 (4) TMI 283
Issues:
1. Classification of PVC microporous battery separators under Central Excise Tariff.
2. Eligibility for exemption under Notification No. 68 of 1971.
Detailed Analysis:
Issue 1: The primary issue in this case revolves around the classification of PVC microporous battery separators under the Central Excise Tariff. The petitioners contended that the goods should be classified under Item 15A(2) of the Central Excise Tariff, which covers "Articles made of plastics, all sorts, including tubes not otherwise specified." The petitioners argued that the PVC battery separators, being manufactured from PVC resin, fall under the broad scope of Item 15A(2) as articles made of plastics. They emphasized that the term "including" in the interpretation clause should be construed broadly to cover any article made of plastics. Additionally, they presented expert opinions to support their claim that the products in question are rectangular profile sections, distinct from sheets or other excepted articles.
Issue 2: The second issue pertains to the eligibility of the PVC microporous battery separators for exemption under Notification No. 68 of 1971. The petitioners argued that since the products are covered under Item 15A(2) of the Central Excise Tariff, they should be entitled to the benefit of the exemption notification. They further highlighted that battery separators made of PVC are not essential components of batteries, citing expert opinions to demonstrate the various potential uses of the product beyond battery components. The petitioners also referenced previous decisions, including one by the Appellate Collector in a similar case, to support their claim for exemption under Notification No. 68 of 1971.
Conclusion: After considering the arguments presented by the petitioners and examining the nature of the PVC microporous battery separators, the Government concluded that the products should be classified under Item 15A(2) of the Central Excise Tariff. The Government found merit in the petitioners' contention that the goods, being profile shapes made of plastic, do not fall within the excepted category of goods and are eligible for the benefit of exemption under Notification No. 68/71. Consequently, the revision application was allowed, and the PVC microporous battery separators were deemed eligible for classification under Item 15A(2) and entitled to the exemption under Notification No. 68/71.
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1982 (4) TMI 282
Issues: Classification of product under Central Excise Tariff, interpretation of Notification No. 122/71, applicability of exemption to phenolic resins.
In this judgment by the Government of India, the issue revolved around the classification of a product, Phenol Formaldehyde Moulding powder, under the Central Excise Tariff. The petitioners claimed that the product should be considered a phenolic resin and thus eligible for partial exemption under Notification No. 122/71. The Assistant Collector of Central Excise initially held that the product was not covered by the exemption as it was deemed a plastic material and not sold as resin. This decision was upheld by the Appellate Collector, leading to the Revision Application.
The petitioners argued that the product met the definition of 'phenolic resins' as per explanation (iii) to Notification 122/71, which included synthetic resins manufactured by reacting phenols with an aldehyde and excluded blends with other resins. They contended that even if the product was not a chemically modified phenolic resin, the notification should still apply. They also cited a judgment by the Bombay High Court in a similar case, where phenolic moulding powder was granted exemption under the same notification, emphasizing that the judgment should be binding on the Government.
Upon careful consideration, the Government agreed with the petitioners' submissions. They found that Phenol Formaldehyde Moulding powder, derived from the chemical reaction of phenolic resin with fillers and additives, remained a phenolic resin. The Government interpreted Notification No. 122/71 to apply to all phenolic resins, including chemically modified ones, except blends with other resins. They emphasized that the use of the word 'including' in the notification expanded the scope of the exemption to cover modified phenolic resins. Consequently, the Government set aside the previous orders and ruled that the product in question was entitled to the benefit of the exemption as a phenolic resin, allowing the Revision Application.
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1982 (4) TMI 281
The Government of India considered a refund claim by I.C. engine manufacturers, ruling it not time-barred as it was filed within one year of the alleged excess duty payment. The claim should be reviewed on its merits. (Case: 1982 (4) TMI 281 - GOVERNMENT OF INDIA)
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1982 (4) TMI 280
The appeal was filed by M/s. Hindustan Aeronautics Limited against the demand of duty for forged dies. The Appellate Collector found that the forged dies did not fall under the specified tariff item and allowed the appeal, setting aside the lower authority's orders.
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1982 (4) TMI 279
Issues involved: Appeal against duty liability and penalty imposed by the Collector of Central Excise.
Summary:
The appeals were filed by three common partners in two firms manufacturing A.D.V. wheels and axles without obtaining a Central Excise license or paying the duty. A Show Cause Notice was issued to them for non-compliance. The Collector confirmed duty liability for a specific period and imposed a penalty on the appellants individually.
During the hearing, the Consultant argued that the firms were separate legal entities, entitled to exemptions under specific notifications. They contended that the demand for duty was time-barred and that the penalty imposed was unjustified. The Consultant also highlighted the issue of classification of goods and the benefit of sales made during trading activities.
The Board observed that the two concerns were separate legal entities despite having common partners. The clearances of the firms could not be combined for exemption purposes. Even if the partners were considered as manufacturers, each had a separate existence and should be treated individually. The Board found the demand for duty from the appellants legally unsustainable and set aside the penalties imposed on them.
The Board criticized the casual imposition of penalties under Rule 173Q and emphasized the seriousness of such actions. The Order did not prevent further action against the actual manufacturers of the goods.
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1982 (4) TMI 278
The High Court of Madras ruled that cast iron scrap is considered iron scrap under the Tamil Nadu General Sales Tax Act. The court rejected the argument that cast iron scrap is excluded from the definition of iron scrap. The amendment to the legislation mentioning cast iron scrap was seen as clarifying its inclusion, not implying prior exclusion. The court emphasized interpreting statutes based on plain language and common understanding. The revision was allowed in favor of the assessee, with costs awarded.
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