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1987 (7) TMI 595
Issues:
1. Quashing of complaint under Sections 406, 415, 420, and 506 of the Indian Penal Code.
2. Setting aside of First Information Report under Sections 406 and 420 of the Indian Penal Code.
Analysis:
In the judgment delivered by Hon'ble Judge Pritpal Singh, two connected petitions under Section 482 of the Code of Criminal Procedure were addressed. The first petition sought to quash a complaint filed by the Respondent under various sections of the Indian Penal Code against the Petitioner in the Court of Sub-Divisional Judicial Magistrate, Panipat. The second petition aimed to set aside a First Information Report recorded at the Police Station against the Petitioner on the same facts. The allegations revolved around the supply of carpet woolen yarn by the Respondent to the Petitioner, followed by the dishonoring of cheques issued by the Petitioner for the payment of the goods.
The judgment referred to a previous ruling in Iqbal Singh Randhawa v. Doctor Satpal Goyal, establishing that an offence under Section 406 of the Indian Penal Code is distinct from an offence under Section 420. It highlighted that an accused cannot be tried for both offences simultaneously, as they represent different criminal acts. Another precedent cited was the judgment in Chhote Lal Aggarwal v. The State of Punjab, emphasizing the importance of distinguishing between a cheque issued to discharge an existing liability and a cheque issued against delivery of goods. The former may constitute a breach of promise, while the latter could indicate an intention to cheat.
The Court analyzed the facts of the case and concluded that the cheques issued by the Petitioner were to discharge a pre-existing liability, not against the delivery of goods. Therefore, the dishonoring of the cheques amounted to a breach of promise, constituting a civil liability rather than a criminal offence under Section 406 or Section 420 of the Indian Penal Code. Consequently, the Court quashed the impugned complaint, the First Information Report, and all related proceedings in the Court of Sub-Divisional Judicial Magistrate, Panipat, based on this interpretation of the law.
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1987 (7) TMI 594
Issues Involved:
1. Whether the offences under Sections 159 and 220 made punishable under Section 162 of the Companies Act are continuing offences.
2. Whether the liability to furnish returns under Section 159 and audited balance sheet under Section 220 of the Companies Act continues even if the company has become defunct.
3. Whether violation of Sections 159 and 220 of the Companies Act requires mens rea.
Issue-Wise Detailed Analysis:
1. Continuing Offences:
The court first addressed whether the offences under Sections 159 and 220 of the Companies Act, punishable under Section 162, are continuing offences. The court referred to judicial pronouncements, including the Supreme Court's observations in *State of Bihar v. Deokaran* and *Bhagirath Kanoria v. State of M.P.*, which provided guidelines on what constitutes a continuing offence. The court noted that a continuing offence is one where the non-compliance or disobedience persists, thereby incurring liability until compliance is achieved. The Companies Act is designed to protect shareholders and ensure proper company administration. The Act categorizes offences and specifies penalties, with some offences incurring daily fines for ongoing non-compliance. The court concluded that the offences under Sections 159 and 220 are continuing offences because the failure to file required documents persists until compliance. This interpretation aligns with the legislative intent to enforce strict compliance through recurring penalties.
2. Liability Despite Defunct Status:
The court examined whether the liability to submit returns and audited balance sheets continues if the company is defunct. The court referred to decisions in *Madan Gopal v. State* and *Sukhbir Saran v. Registrar of Companies*, which held that a company's non-functioning status does not exempt it from filing returns or balance sheets, even if they are nil returns. The court emphasized that under Section 220(1) of the Act, the balance sheet must be filed even if no annual general meeting is held. The court rejected the petitioners' argument that the company's defunct status absolved them of their filing obligations, stating that the Act's provisions clearly mandate compliance regardless of the company's operational status.
3. Requirement of Mens Rea:
The court considered whether mens rea (criminal intent) is required for offences under Sections 159 and 220. The court referred to a Patna High Court decision in *Calculating & Business Machines v. State of Bihar*, which suggested that mens rea might not be necessary in certain circumstances. However, the court noted that the Companies Act explicitly excludes mens rea as a constituent element for these offences. Sections 159 and 220 impose penalties for mere failure to comply, without requiring proof of intent. The court highlighted that the Act includes specific terms like "willingly," "knowingly," and "fraudulently" in other sections where mens rea is necessary. In contrast, Sections 159 and 220 do not incorporate such terms, indicating that mens rea is not required. The court concluded that once the failure to furnish returns or audited balance sheets is proven, the offence is established, and mens rea is not a necessary element.
Conclusion:
The court dismissed the revisions, affirming the convictions and sentences imposed by the trial court. The offences under Sections 159 and 220 of the Companies Act are continuing offences, the liability to file returns and balance sheets persists even if the company is defunct, and mens rea is not required for these offences. The petitioners' contentions were rejected, and the trial court's decision was upheld.
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1987 (7) TMI 593
Issues:
Interpretation of Section 18 of the Limitation Act regarding the validity of an acknowledgement in a money suit based on liability acknowledgements not in the handwriting of the defendant.
Analysis:
The judgment delivered by Justice Padmanabhan of the Kerala High Court addressed the interpretation of Section 18 of the Limitation Act in a civil revision petition involving a money suit. The key issue was whether an acknowledgement, to be valid, must be in the handwriting of the defendant against whom the property or right is claimed. The court emphasized that an acknowledgement under Section 18 must pertain to an existing debt or obligation, be in writing, signed by the person against whom the right is claimed, or by someone through whom they derive liability, and made before the expiry of the limitation period. The court clarified that an acknowledgement only renews the existing liability and does not create a new cause of action or title.
In this case, the plaintiff bank sued two defendants based on a liability incurred on a specific date. The suit relied on two acknowledgements dated after the liability date. The trial court dismissed the suit solely on the ground that the second acknowledgement was not in the handwriting of the defendant, despite being signed by him. The High Court disagreed with this interpretation, stating that Section 18 only requires the acknowledgement to be in writing and signed, without specifying that it must be in the maker's handwriting. The court highlighted that various modes of signing, including thumb impressions or marks, are recognized in law for illiterate or physically unable persons.
The court criticized the trial court's narrow interpretation, emphasizing that acknowledgements can take various forms, including printed, typewritten, or even made by a witness in a deposition. The High Court noted that the trial court's failure to consider other issues in the case was a significant oversight, as a decision on limitation is subject to review, and a final disposal requires consideration of all issues. Consequently, the High Court allowed the civil revision petition, set aside the judgment and decree, vacated the limitation finding, and remanded the case for a comprehensive review of all issues and a final disposal on the merits, emphasizing the importance of addressing all issues in a proceeding to avoid unnecessary delays and inconveniences.
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1987 (7) TMI 592
The Supreme Court ordered that the petitioner's pension be fixed according to a previous order. The cash equivalent of leave to the petitioner should be calculated based on specific criteria. The maximum gratuity payable to Judges was set at one lakh rupees, effective from 1.1.1986. Instructions were given for prompt payment of gratuity to eligible Judges. The writ petition was disposed of.
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1987 (7) TMI 591
Issues:
1. Appointment of a civil court commissioner for local investigation of disputed property.
Analysis:
The judgment deals with a civil revision where the defendant challenges an order directing the appointment of a survey knowing civil court commissioner for a local investigation of disputed property. The court examines the power vested in it under Order 26, Rule 9, C.P.C., to depute a commissioner for local investigation to elucidate matters in dispute. The discretion to appoint a commissioner is to be exercised judiciously, considering the facts and circumstances of the case to determine if it is a just occasion for such an appointment.
The court cites previous decisions to emphasize the purpose of local investigation under the rule, which is to obtain evidence best acquired from the spot. The judgment highlights that the court may appoint a commissioner when a party is unable to produce desired evidence due to reasonable circumstances. However, such evidence obtained through a commissioner is not binding on the court and should be considered along with other evidence in the case.
Regarding the scope of revisional power, the judgment distinguishes between cases where the application for a commissioner is refused and where a commissioner is appointed. It notes that if a commissioner is appointed and their report becomes evidence, the appellate court cannot disregard such evidence. Therefore, the revisional power may be exercised in deserving cases.
In this specific case, the court finds that the trial court did not apply judicial mind while appointing the commissioner. It notes that the trial court failed to consider if the plaintiff was unable to ascertain the boundary by engaging an expert, leading to an irregular exercise of jurisdiction. Consequently, the court sets aside the trial court's order as unsustainable, allowing the civil revision with no costs imposed.
The judgment also addresses a submission by the opposite party's counsel regarding the grounds of the civil revision not being urged in the pleading. The court clarifies that rules of pleadings are not strictly applicable to a revision application, rejecting the submission and proceeding with allowing the civil revision and setting aside the trial court's order.
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1987 (7) TMI 590
Issues:
Interpretation of the definition of 'cotton fabrics' under the Central Excise and Salts Act, 1944 for taxation purposes.
Detailed Analysis:
1. Definition of 'Cotton Fabrics':
The case involved a revision against the Board of Revenue's order regarding the classification of embroidered cotton sarees under the definition of 'cotton fabrics' as per the Central Excise and Salts Act, 1944. The relevant assessment years were 1966-67 and 1973-74. The critical question was whether embroidered cotton sarees fall within the definition of 'cotton fabrics' as provided in item 19 of the first schedule to the Central Excise and Salts Act, 1944.
2. Legislative Interpretation:
The definition of 'cotton fabrics' under the Act includes various fabrics manufactured from cotton, such as sarees, bed sheets, and table cloths, among others. The definition also specifies exclusions based on the percentage of non-cotton materials in the fabric. The judgment referred to the specific percentages of wool, silk, reyon, and jute that would disqualify a fabric from being classified as 'cotton fabrics'.
3. Assessee's Position:
The assessee, a dealer in embroidered cotton sarees, argued that the embroidered sarees fall within the definition of 'cotton fabrics' and should be taxed accordingly. The Board of Revenue accepted this argument, leading to the Department's revision petition against this decision.
4. Legal Precedents:
The Department's counsel relied on the case of Pravin Bros. v. The State of Gujarat to support the argument that embroidered cotton sarees should not be classified as 'cotton fabrics'. However, the judgment highlighted that the specific entry for embroidered sarees in the Gujarat case distinguished it from the present scenario. The absence of a specific entry for embroidered sarees under the Rajasthan Act supported the conclusion that the definition of 'cotton fabrics' was broad enough to include embroidered cotton sarees.
5. Supporting Precedents:
The judgment also referenced the case of Radha's Fancy Piece Goods Merchants v. State of Kerala, which further supported the classification of embroidered cotton sarees as 'cotton fabrics'. The exclusion clause in the definition of 'cotton fabrics' was found not to apply to embroidered cotton sarees, as they did not lose their identity as woven materials. The test provided in this case aligned with the interpretation of the definition in the Central Excise and Salts Act, 1944.
6. Conclusion:
Based on the analysis of legal precedents and the interpretation of the definition of 'cotton fabrics', the Court dismissed the revision petition, upholding the Board of Revenue's decision that embroidered cotton sarees fell within the definition of 'cotton fabrics' and should be taxed accordingly. The judgment emphasized that no other conflicting decisions were presented, reinforcing the validity of the Board's decision in this case.
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1987 (7) TMI 589
Issues Involved:
1. Whether the Calcutta Municipal Corporation can compel the petitioners to submit a no-objection certificate under the Urban Land Ceiling Act.
2. Whether the Municipal Authority can refuse or withhold the sanction of the building plan due to the non-submission of the no-objection certificate.
3. Compliance with provisions of the Calcutta Municipal Corporation Act, 1980, and related rules and regulations.
Issue-wise Detailed Analysis:
1. Submission of No-Objection Certificate:
The petitioners argued that the Calcutta Municipal Corporation (CMC) could not withhold the sanction of the building plan on the grounds of not furnishing a no-objection certificate from the Urban Land Ceiling Authority. The petitioners contended that there was no provision under the Calcutta Municipal Corporation Act, 1980, which empowered the Municipal Authorities to demand such a certificate as a condition for sanctioning a building plan.
The respondents, however, maintained that while dealing with the proposal for sanctioning a building plan, the Corporation Authorities must consider various aspects, including compliance with the Urban Land Ceiling Act. They argued that the petitioners themselves had stated that they would submit the no-objection certificate shortly, which they failed to do. Additionally, the premises had not been separated and mutated in favor of the petitioners, leading to conditional acceptance of the application.
2. Refusal or Withholding of Sanction:
The court examined Sections 393 and 394 of the Calcutta Municipal Corporation Act, 1980, along with Rules 47 to 50 of Schedule XVI, which outline the requirements for submitting a building plan for sanction. The court noted that Rule 47(2) mandates the submission of various documents and plans, while Rule 48 specifies the particulars to be included in the application.
Rule 51 of Schedule XVI provides that all necessary information and objections must be addressed before deciding on the permission to erect a building. Rule 52 outlines the grounds on which permission may be refused, including the non-furnishing of required information or documents.
Section 396 of the Act provides for the provisional sanction or refusal of building plans, stating that sanction may be refused if the building or work contravenes any provisions of the Act, rules, regulations, or any other law in force. However, the court found that the requirement for a no-objection certificate from the Urban Land Ceiling Authority was not explicitly prescribed under the Act or the Rules.
3. Compliance with Provisions of the Act:
The court considered the rival contentions and concluded that none of the clauses under Section 396(2) had been infringed by the petitioners. The court emphasized that the clearance certificate under the Urban Land Ceiling Act was neither an information nor a document required by the Municipal Commissioner under the Act or the Rules. Therefore, the non-furnishing of the certificate did not constitute a contravention of Section 396(2)(c).
The court also referred to several precedents, including decisions in the cases of Municipal Board v. Mohd Jaki, Mahadeo Prasad v. Government, United Provinces, Krishna Narayan Mukherjee v. State of West Bengal, Subhas Kumar Lohade v. Special Officer, Municipal Corporation, and Y. D. Properties & Investment Pvt. Ltd. v. Competent Authority. These cases supported the view that the Municipal Authorities must proceed strictly in accordance with the provisions of the relevant Act and cannot refuse sanction based on requirements not prescribed by the Act.
Conclusion:
The court concluded that the direction of the Municipal Corporation requiring the petitioners to furnish a no-objection certificate from the Competent Authority under the Urban Land Ceiling Act was without jurisdiction. The court allowed the application, directing the Calcutta Municipal Corporation to proceed with sanctioning the plan in accordance with the provisions of the Act and the Rules, without requiring the petitioners to produce the no-objection certificate. The court also clarified that this order would not prevent the Urban Land Ceiling Authority from proceeding against the petitioners under the Urban Land Ceiling Act if deemed necessary.
The judgment mandated that the sanction be granted within eight weeks from the date of communication of the order, and all parties were directed to act on the operative part of the judgment based on the undertaking of the Advocate on Record for the petitioners.
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1987 (7) TMI 588
Issues Involved:
1. Negligence and liability of the drivers involved in the accident.
2. Ownership and liability of the lorry.
3. Validity and transfer of the insurance policy.
4. Enhancement of compensation awarded by the Tribunal.
Detailed Analysis:
1. Negligence and Liability of the Drivers:
The Tribunal found that the drivers of both the bus and the lorry were negligent, leading to the accident. The bus was overcrowded and driven at high speed, which was corroborated by several witnesses. The accident occurred on the day of Kodungallur Bharani, a festival season, which likely contributed to the high speed of the bus. The Tribunal concluded that the bus driver was more negligent, fixing his liability at 60%, while the lorry driver was held 40% liable.
2. Ownership and Liability of the Lorry:
The appellant, who was impleaded later in the proceedings, contended that the accident was due to the bus driver's negligence and that the lorry's registered owner was liable. The lorry was transferred to the appellant through an agreement (Exhibit R-25) before the accident. The Tribunal noted that the registration of the vehicle in the transferee's name is not essential to pass the title, as per the Sale of Goods Act. The appellant had acquired all rights and liabilities of the vehicle through Exhibit R-25, making him liable.
3. Validity and Transfer of the Insurance Policy:
The insurance company argued that the policy lapsed upon the transfer of the vehicle, as it was not transferred in the appellant's name. The Tribunal referred to several High Court decisions, which generally held that an insurance policy lapses upon the transfer of the vehicle unless the insurer consents to the transfer. The appellant did not take steps to transfer the insurance policy in his name. The Tribunal concluded that the insurance company was not liable to indemnify the loss as the policy had lapsed due to the transfer.
4. Enhancement of Compensation Awarded by the Tribunal:
The claimants in both MAC No. 41 of 1981 and MAC No. 42 of 1981 sought enhancement of the compensation awarded. The Tribunal increased the compensation in MAC No. 41 of 1981 from Rs. 5,698 to Rs. 8,000, considering the injured minor's academic loss and medical expenses. However, the Tribunal found the compensation of Rs. 8,000 in MAC No. 42 of 1981 reasonable and did not enhance it further.
Judgment:
In MAC No. 41 of 1981, the compensation was fixed at Rs. 8,000, with 40% liability on the appellant and 60% on the bus owner. The insurer of the bus, M/s. Oriental Fire and General Insurance Company, was directed to pay Rs. 4,800, while the appellant was to pay Rs. 3,200, with interest at 6% per annum from September 17, 1977, till realization.
In MAC No. 42 of 1981, the insurer was to pay Rs. 4,800, and the appellant was to pay Rs. 3,200, with the same interest terms.
The appeals and cross objections were disposed of, with parties bearing their own costs.
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1987 (7) TMI 587
Issues Involved:
1. Jurisdiction of the High Court to entertain an application under Order 7 Rule 11 of CPC after the settlement of issues.
2. Whether the election petition disclosed any cause of action.
3. The role of the Returning Officer under Section 33(4) of the Representation of People Act, 1951.
4. The impact of misnomer or inaccurate description in the electoral roll and nomination paper.
5. Whether the result of the election was materially affected by the alleged improper acceptance of the nomination paper.
Issue-wise Detailed Analysis:
1. Jurisdiction of the High Court to entertain an application under Order 7 Rule 11 of CPC after the settlement of issues:
The appellant argued that the High Court had no jurisdiction to entertain an application under Order 7 Rule 11 of CPC after issues were framed. He contended that once issues are framed, the court should proceed to record evidence and decide the issues based on the evidence produced. However, the Supreme Court held that this argument was without merit. The Court referred to previous judgments, including Azhar Hussain v. Rajiv Gandhi, Bhagwati Prashad v. Rajiv Gandhi, and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, which established that an election petition could be rejected summarily under Order 7 Rule 11 of CPC if it did not disclose any cause of action. The Court clarified that the power under Order 7 Rule 11 could be exercised at any stage of the proceedings, including after the framing of issues.
2. Whether the election petition disclosed any cause of action:
The appellant contended that his election petition disclosed a cause of action, specifically alleging that his nomination paper was improperly accepted by the Returning Officer, which materially affected the election result. The Supreme Court, however, found that the appellant's petition did not disclose any cause of action. The Court emphasized that the purpose of Order 7 Rule 11 was to prevent meaningless litigation from occupying the court's time. The Court reiterated that if an election petition does not disclose a cause of action, it can be dismissed summarily at any stage of the proceedings.
3. The role of the Returning Officer under Section 33(4) of the Representation of People Act, 1951:
The appellant argued that the Returning Officer acted in violation of the proviso to Section 33(4) by failing to correct entries in his nomination paper and the list of contesting candidates. The Supreme Court explained that Section 33(4) required the Returning Officer to ensure that the names and electoral roll numbers in the nomination paper matched those in the electoral roll. The proviso allowed the Returning Officer to correct any misnomer, inaccurate description, or clerical error. However, the Court found that in this case, there was no discrepancy between the entries in the nomination paper and the electoral roll that required correction. The appellant had himself declared his name as "Samay Singh S/o S.P. Singh," and the Returning Officer had no authority to make corrections after the nomination paper was accepted.
4. The impact of misnomer or inaccurate description in the electoral roll and nomination paper:
The appellant claimed that his name was incorrectly entered in the electoral roll as "Samay Singh S/o S.P. Singh" instead of "Samar Singh S/o S.B. Singh." The Supreme Court found that the appellant had presented his nomination paper under the name "Samay Singh S/o S.P. Singh" and had declared this name as correct. The Court held that the Returning Officer had no authority to correct the name after the nomination paper was accepted and the list of contesting candidates was prepared. The Court concluded that the appellant's grievance regarding the incorrect name was without merit.
5. Whether the result of the election was materially affected by the alleged improper acceptance of the nomination paper:
The appellant argued that the improper acceptance of his nomination paper materially affected the election result. The Supreme Court rejected this argument, stating that the Returning Officer had committed no illegality or irregularity in accepting the nomination paper. The Court emphasized that the appellant's name and electoral roll number in the nomination paper matched those in the electoral roll, and there was no improper acceptance. The Court also noted that voters cast their votes based on the symbol allotted to the candidate, not the candidate's name. The appellant's assertion that he lost interest in the election due to the incorrect name was found to be without merit.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision to reject the election petition under Order 7 Rule 11 of CPC. The Court found that the petition did not disclose any cause of action and that the Returning Officer had acted within his jurisdiction. The appellant was ordered to pay costs of Rs. 2,000.
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1987 (7) TMI 586
Issues Involved:
1. Exercise of revisional powers by the High Court in setting aside concurrent findings.
2. High Court's failure to note the deemed non-residential status of the premises.
3. Bona fide requirement of the premises for residential use.
4. Change of user of the premises from residential to non-residential.
5. Applicability of Section 13(3)(a)(i)(a) of the Act.
6. Applicability of the second proviso to Section 13(3)(a).
Issue-wise Detailed Analysis:
1. Exercise of Revisional Powers by the High Court:
The High Court set aside the concurrent findings of the Rent Controller and the Appellate Authority, which had rejected the respondent's claim of bona fide need for the premises for residential use. The High Court disregarded these findings, deeming them based on "conjectures and surmises" and not on factual evidence. The Rent Controller and Appellate Authority had incorrectly assumed that the government quarters occupied by the respondent had three bedrooms, while evidence showed it had only one bedroom. The High Court was justified in rejecting these findings due to their reliance on "imaginary material and not facts."
2. High Court's Failure to Note the Deemed Non-Residential Status:
The High Court did not address whether the appellant had changed the user of the hall from residential to non-residential purposes by running a clinic. The appellant argued that the hall was used for running a clinic, which the respondent allegedly knew and acquiesced to. However, the High Court focused solely on the bona fide requirement for residential use, deeming it sufficient for eviction without examining the second ground of mis-user.
3. Bona Fide Requirement for Residential Use:
The High Court found that the respondent genuinely required the premises for residential use, rejecting the Rent Controller and Appellate Authority's findings. The respondent's evidence, supported by her son's testimony, indicated that the government quarters were insufficient for the family's needs. The High Court noted that the respondent had initiated eviction proceedings against both tenants concurrently, not just the appellant, demonstrating a genuine need for the entire house.
4. Change of User from Residential to Non-Residential:
The Rent Controller and Appellate Authority had erred in their findings regarding the change of user. The appellant initially claimed the premises were taken for both residence and clinic use but later asserted it was solely for non-residential purposes. The High Court noted this shift in defense and emphasized that the lease deed, though unregistered, indicated the premises were let for residential purposes. The High Court also highlighted the statutory requirement under Section 11 of the Act, prohibiting conversion of residential buildings to non-residential use without written consent from the Rent Controller.
5. Applicability of Section 13(3)(a)(i)(a) of the Act:
The appellant argued that the respondent could not seek eviction under Section 13(3)(a)(i)(a) as the premises were deemed non-residential. The High Court dismissed this argument, noting that the findings of the Rent Controller and Appellate Authority were flawed and not binding. The High Court held that the respondent's need for the premises for residential use was genuine, and the appellant's defense based on the non-residential status was untenable.
6. Applicability of the Second Proviso to Section 13(3)(a):
The appellant contended that the respondent could not seek eviction again on the ground of bona fide requirement after obtaining an earlier order against another tenant, Kuldeep Singh. The High Court rejected this argument, noting that eviction proceedings against both tenants were initiated concurrently, not sequentially. The High Court emphasized that the respondent's need for the entire house, including the hall, was justified, especially given the inconvenience and risk posed by the appellant's clinic operations.
Conclusion:
The High Court's judgment was upheld, dismissing the appellant's contentions. The appeal was dismissed, granting the appellant time to vacate the premises until January 31, 1987, subject to filing an undertaking. The High Court's findings were deemed justified, and the concurrent findings of the Rent Controller and Appellate Authority were found to be based on erroneous assumptions and non-existent material.
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1987 (7) TMI 585
Issues Involved:
1. Whether the Director of Settlements could exercise his suo motu power of revision after dismissing a time-barred revision petition filed by the Tahsildar.
2. Whether the invocation of suo motu power of revision after a lapse of 1320 days was reasonable.
Detailed Analysis:
Issue 1: Exercise of Suo Motu Power of Revision by the Director of Settlements
The respondents argued that the Director of Settlements could not exercise his power of revision again after dismissing the revision petition filed by the Tahsildar on grounds of delay on 27th Jan. 1971. The learned single Judge initially agreed, relying on Supreme Court decisions in Mela Ram & Sons v. Commr. of Income Tax and Shanker v. Krishnaji, concluding that the Director became functus officio after the initial dismissal. However, the appellate court highlighted a direct Bench decision in C. Venkata Reddy v. Director of Survey, which was not brought to the notice of the learned single Judge. This decision held that dismissing a time-barred revision petition did not preclude the Director from exercising suo motu powers later, as the initial dismissal did not constitute a decision on merits. The appellate court agreed with this precedent, stating that the Director had not exercised his revisional power on merits when dismissing the Tahsildar's petition and thus remained competent to invoke suo motu powers.
Issue 2: Reasonableness of the Delay in Exercising Suo Motu Power
The second issue pertained to whether the Director's invocation of suo motu power after 1320 days was reasonable. The learned single Judge did not address this issue, but the appellate court emphasized that even though no specific period of limitation is prescribed for exercising suo motu powers, it must be done within a reasonable time. The court referred to the decision in Kodanda Rao v. Government of Andhra Pradesh, which followed the Supreme Court's ruling in State of Gujarat v. P. Raghav, establishing that the reasonableness of the time taken must be assessed based on the facts and circumstances of each case. The court concluded that this issue should be decided by the appropriate authority, suggesting that the writ petitioners could file a revision before the Commissioner of Land Revenue, who would consider the reasonableness of the delay along with other pertinent factors.
Conclusion:
The appellate court allowed the appeal, overturning the learned single Judge's decision. It directed that if the writ petitioners file a revision petition before the Commissioner of Land Revenue within two months, it should be entertained and disposed of on merits, allowing the petitioners to raise all relevant legal questions, including the reasonableness of the Director's delay in exercising suo motu powers. The appeal was allowed with no costs.
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1987 (7) TMI 584
Issues:
Challenge to the order of appointment of an arbitrator based on jurisdiction and bias.
Analysis:
The judgment concerns an application challenging a High Court order that set aside a previous order appointing an arbitrator due to alleged lack of jurisdiction. The arbitration agreement contained a clause specifying the appointment of an arbitrator by the Director/Unit Head, C.M.D.A. The appellant sought the removal of the named arbitrator and requested the appointment of an independent member of the Bar. The first learned Judge appointed a new arbitrator, Sri Amitav Guha, due to alleged bias of the original arbitrator. The respondents participated in the arbitration proceedings without challenging the appointment, leading to multiple sittings and extensions granted by the Court.
In the subsequent challenge to the arbitrator's appointment, the Court referred to precedents emphasizing that a party cannot participate in arbitration proceedings, benefit from them, and then challenge the proceedings later based on known disabilities or objections. Acquiescence and participation in the arbitration process preclude a party from disputing the proceedings' validity. The principle of waiver and estoppel applies not only after the award but also when challenging the proceedings in which the party participated. The Court concluded that the respondents' participation amounted to acquiescence, barring them from challenging the appointment of the arbitrator.
The Court held that the judgment and impugned order could not be sustained, allowing the appeal and reinstating the arbitration proceedings before the arbitrator appointed in the initial order. The time for making the award was extended, and any further extension requests were to be made to the High Court of Calcutta. The appeal was disposed of with each party bearing their respective costs.
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1987 (7) TMI 583
Issues Involved:
1. Legal status of the appellant school to file suits.
2. Ownership and landlord status of the appellant school.
3. Competence of Dr. Om Prakash to file suits on behalf of the Registered Society.
4. Application of Order 1 Rule 10 CPC for amending the plaint.
Detailed Analysis:
1. Legal Status of the Appellant School to File Suits:
The appellant, Bal Niketan Nursery School, is a recognized institution under the U.P. Basic Education Act, 1972. The recognition grants the school certain rights, including exemption from the provisions of the U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 (the Rent Act). The court held that the school, by virtue of its recognition, has acquired legal status and is entitled to file suits through its Manager to seek the eviction of tenants. The respondent's argument that proceedings to impugn the school's recognition could affect its status was dismissed, as no material was provided to show that the recognition had been withdrawn.
2. Ownership and Landlord Status of the Appellant School:
The appellant school is the registered owner of the suit property, having obtained the sale deed in its name. As the owner, the school is entitled to preserve and protect the property and to institute actions in that behalf. The court held that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents were collected. Consequently, the appellant's right to initiate actions for recovery of arrears of rent or possession of the leased property is valid.
3. Competence of Dr. Om Prakash to File Suits on Behalf of the Registered Society:
Dr. Om Prakash, who is the Manager of the school and the Secretary of the Registered Society, filed the suits. Clause (14) of the Society's Constitution states that legal proceedings by or against the Society will be done by the Manager, Secretary, or an authorized person. The court held that since Dr. Om Prakash is competent to file suits on behalf of the Society, the suits filed by him as Manager of the school are maintainable. The objection raised by the tenants regarding the competence of the appellant to file the suits was deemed without merit.
4. Application of Order 1 Rule 10 CPC for Amending the Plaint:
The High Court's decision to remit the suits to the Small Cause Court for fresh consideration after dealing with the petition under Order 1 Rule 10 CPC was found to be erroneous. The court emphasized that Order 1 Rule 10 CPC is designed to correct bona fide mistakes in the filing of suits and to ensure the due dispensation of justice. The High Court should have allowed the petition and added the Registered Society represented by Dr. Om Prakash as a party, thereby disposing of the writ petitions on their merits. The court cited several precedents supporting the application of Order 1 Rule 10 CPC to correct such mistakes and promote justice.
Conclusion:
The appeal was allowed, and the matter was remitted to the High Court for disposal on merits after allowing the application under Order 1 Rule 10 CPC. The High Court was directed to add Smt. Chandramukhi Ram Saran Shiksha Samiti through its Secretary Dr. Om Prakash as a plaintiff in the suits, making it clear that Dr. Om Prakash represents both the appellant school and the Registered Society. The writ petitions were to be disposed of on their merits after the formal amendments in the pleadings. Each party was directed to bear its respective costs.
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1987 (7) TMI 582
Issues Involved:
1. Whether the investigation can be considered complete under Section 173(2) of the Code of Criminal Procedure (CrPC) without the Central Forensic Science Laboratory (CFSL) report.
2. The implications of not appending the CFSL report with the charge-sheet.
3. The mandatory nature of the provision regarding the entitlement to bail under Section 167(2) of the CrPC.
4. The definition and requirements of a "police report" under Section 173(2) of the CrPC.
5. The role of Section 173(5) of the CrPC in forwarding documents on which the prosecution relies.
6. The impact of Section 173(7) on the mandatory nature of Section 173(5).
Issue-wise Detailed Analysis:
1. Whether the investigation can be considered complete under Section 173(2) of the Code of Criminal Procedure (CrPC) without the Central Forensic Science Laboratory (CFSL) report:
The court examined whether the investigation is deemed complete when the charge-sheet is submitted without the CFSL report. It was noted that the investigation must be completed within 90 days for offenses punishable with death, life imprisonment, or imprisonment for a term of not less than 10 years. The court found that the police report or challan is considered complete if it includes the particulars required under Section 173(2)(i)(a) to (g) of the CrPC. The court concluded that the absence of the CFSL report does not render the investigation incomplete, as the police officer's job of collecting evidence is considered complete once the material exhibits are sent to the CFSL.
2. The implications of not appending the CFSL report with the charge-sheet:
The court determined that the police report remains complete even without the CFSL report. The CFSL report is admissible in evidence under Section 293 of the CrPC without formal proof. Thus, the police report submitted on the 90th day was deemed complete despite the absence of the CFSL report.
3. The mandatory nature of the provision regarding the entitlement to bail under Section 167(2) of the CrPC:
Section 167(2) of the CrPC mandates that the detention of an accused cannot exceed 90 days for certain offenses, and the accused must be released on bail if the charge-sheet is not filed within this period. The court emphasized that this provision is mandatory and does not admit any exceptions, provided the accused is prepared to furnish bail.
4. The definition and requirements of a "police report" under Section 173(2) of the CrPC:
The court referred to the definitions of "investigation" and "police report" under Sections 2(h) and 2(r) of the CrPC, respectively. The police report must include the particulars specified in Section 173(2)(i)(a) to (g). The court held that the police report is complete if it meets these requirements, and the absence of the CFSL report does not affect its completeness.
5. The role of Section 173(5) of the CrPC in forwarding documents on which the prosecution relies:
The court addressed the contention that the CFSL report should have been forwarded along with the police report under Section 173(5) of the CrPC. It was clarified that this provision imposes an additional duty on the investigating officer to send documents on which the prosecution relies, but it does not affect the completeness of the police report under Section 173(2).
6. The impact of Section 173(7) on the mandatory nature of Section 173(5):
The court noted that Section 173(7) allows the investigating officer to furnish copies of documents to the accused at his convenience, which reduces the mandatory nature of Section 173(5). Therefore, the omission of the CFSL report did not render the police report incomplete.
Conclusion:
The court concluded that the challan submitted by the Investigating Officer was complete in terms of Section 173(2) of the CrPC on the 90th day. Consequently, the petitioner was not entitled to bail under the proviso (a)(i) of Section 167(2) of the CrPC. The petition for the grant of bail was dismissed.
Order accordingly.
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1987 (7) TMI 581
Issues Involved:
1. Sub-letting without the written consent of the landlord.
2. User for non-residential purposes in violation of the Rent Act.
3. Payment of rent or consideration for sub-tenancy.
Summary:
Sub-letting without the written consent of the landlord:
The main question in this appeal was whether the appellant had sub-let part of the premises to Lalit Mohan Biswas, who had established a tailoring business there, without the written consent of the landlord, violating section 13(1)(a) of the West Bengal Premises Act, 1956 (the 'Rent Act'). The trial court, the Additional District Judge, and the High Court all found that sub-letting had occurred based on evidence presented, including the presence of a sewing machine and the activities of Lalit Mohan Biswas. However, the Supreme Court found that there was no evidence that Biswas had exclusive possession of any part of the premises or that the tenant had relinquished control over any part of the premises. Therefore, the essential ingredient for proving sub-tenancy was not established.
User for non-residential purposes in violation of the Rent Act:
The appellant was also accused of allowing the premises, which were let out for residential purposes, to be used for non-residential purposes, specifically tailoring, in violation of section 13(1)(h) of the Rent Act. The Supreme Court noted that the sewing machine was used as part of the appellant's apparatus and not separately or independently, thus it did not constitute a change of user as defined in the Rent Act.
Payment of rent or consideration for sub-tenancy:
The court examined whether the services rendered by Lalit Mohan Biswas could be considered as rent under the Rent Act. The court concluded that services in lieu of money do not amount to rent under the Rent Act, as the Act envisions monetary consideration. The court referred to section 4, section 5(b), section 8, section 9, and other relevant sections of the Rent Act, which indicate that rent must be monetary. Therefore, the alleged sub-tenancy was not established as there was no agreed monetary rent or method of quantification.
Conclusion:
The Supreme Court held that the findings of sub-letting and change of user by the lower courts were not supported by the essential ingredients required under the law. Consequently, the appeal was allowed, and the judgments of the High Court and the lower courts were set aside. The claim for ejectment was dismissed. However, the court directed an increase in rent from Rs. 250 to Rs. 350 per month from 1.8.87, with arrears to be paid by 31.8.87. There was no order as to costs.
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1987 (7) TMI 580
Issues Involved:
1. Jurisdiction of the Commissioner to revise assessment orders under section 263.
2. Legality of disallowing interest paid to the M.P. State Finance Corporation.
Detailed Analysis:
1. Jurisdiction of the Commissioner to Revise Assessment Orders under Section 263:
The first issue concerns whether the Commissioner had the jurisdiction to revise the assessment orders for the years 1968-69 and 1969-70 under section 263 of the Income-tax Act, 1961. The Commissioner reviewed the assessments and disallowed the interest paid to the M.P. State Finance Corporation, arguing that the Assessing Officer's (ITO) order had not merged with the Appellate Assistant Commissioner's (AAC) order since the AAC did not consider the disallowance of interest on borrowing. The court referenced the Full Bench decision in CIT v. K.L. Rajput [1987] 164 ITR 197, stating, "The doctrine of merger applies to income-tax proceedings but the extent of its application depends on the scope and subject-matter of the appeal and the decision rendered by the appellate authority." The court concluded that since the AAC did not address the interest disallowance, the ITO's order did not merge with the AAC's order, allowing the Commissioner to exercise revisional jurisdiction. Therefore, the first question was answered in the affirmative and in favor of the revenue.
2. Legality of Disallowing Interest Paid to the M.P. State Finance Corporation:
The second issue pertains to whether the Tribunal was right in law in disallowing the interest paid to the M.P. State Finance Corporation. The assessee, a registered partnership firm, borrowed capital to set up a straw board factory, which commenced production in the assessment year 1971-72. The ITO allowed the interest deduction under section 36(1)(iii) for the years 1968-69 and 1969-70, but the Commissioner and subsequently the Tribunal disallowed it, stating that the factory had not started production in those years. The court, however, opined that the interest paid was for the expansion of the existing business (rice and dal mill) and not for a new business. Citing Prem Spg. & Wvg. Mills Co. Ltd. v. CIT [1975] 98 ITR 20, the court emphasized that the "decisive test was unity of control and not the nature of the two lines of business." The court concluded that the interest paid was deductible under section 36(1)(iii) as it was for the purpose of the business. Thus, the second question was answered in the negative, in favor of the assessee.
Distinguishing Cases:
The court distinguished the cases cited by the Tribunal:
- Ramaraju Surgical Cotton Mills Ltd.: Concerned setting up a new spinning unit, not expanding an existing business.
- Challapalli Sugars Ltd.: Involved capitalizing interest for a new factory, not an expansion.
- Travancore-Cochin Chemicals Ltd.: Related to interest as part of the actual cost for a new project.
- L.G. Balakrishnan & Bros. (P.) Ltd.: Dealt with interest capitalization for a new business.
Conclusion:
The first question regarding the jurisdiction of the Commissioner was answered affirmatively in favor of the revenue. The second question concerning the disallowance of interest was answered negatively in favor of the assessee. No order as to costs was made.
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1987 (7) TMI 579
Issues Involved:
1. Whether the structure constructed by the tenant amounted to a permanent structure leading to the forfeiture of the tenancy.
2. Scope and extent of the jurisdiction of the High Court under Article 227 of the Constitution on questions of facts found by the appellate bench of Small Causes Court.
Issue-wise Detailed Analysis:
1. Permanent Structure Leading to Forfeiture of Tenancy:
The case revolves around whether the tenant's constructions in the leased premises were permanent structures, violating the terms of the lease and leading to forfeiture of tenancy. The landlords alleged that the tenant had erected unauthorized constructions, including lofts, rooms, and new flooring, without their consent, violating Section 108(p) of the Transfer of Property Act, 1882. The trial court and the appellate bench of the Small Causes Court found these structures to be permanent, substantial, and durable, intended for long-term use. They held that these constructions breached the terms of the tenancy, justifying eviction. The High Court, however, reversed these findings, considering the structures temporary and removable without significant damage, thus not warranting forfeiture of tenancy.
2. Jurisdiction of the High Court under Article 227:
The main question was whether the High Court had the jurisdiction to interfere with the concurrent findings of the lower courts under Article 227 of the Constitution. The Supreme Court reiterated that the High Court's power under Article 227 is limited to correcting errors of jurisdiction or law, not re-evaluating facts unless the findings are perverse or patently unreasonable. The Supreme Court found that the trial court and the appellate bench had applied the correct legal principles and considered all relevant evidence. Therefore, the High Court's interference was unwarranted as the lower courts' findings were plausible and not perverse.
Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's judgment, and restored the order of the appellate bench of the Court of Small Causes, which had ordered eviction and mesne profits. The respondents were directed to pay the costs of the appeals. The judgment emphasized the limited scope of the High Court's jurisdiction under Article 227 and upheld the findings of the lower courts regarding the permanent nature of the tenant's constructions.
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1987 (7) TMI 578
Issues Involved:
1. Jurisdictional Competence of the Prescribed Authority
2. Application of the 'De-facto Doctrine'
3. Rule of Merger and Rule of Finality
4. Alleged Breach of Undertaking by Respondents
Summary:
1. Jurisdictional Competence of the Prescribed Authority:
The primary issue was whether the order of release passed by the Prescribed Authority u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, was null and void due to the Prescribed Authority lacking the requisite qualifications. The appellant contended that Shri Senger, the Prescribed Authority, did not possess the necessary experience as a First Class Magistrate. However, the court found that Shri Senger had been conferred the powers of a First Class Magistrate by a General Notification dated 6.2.1968, which was duly published in the Official Gazette. The court held that the experience gained by Shri Senger as a Second Class Magistrate, while concurrently having the powers of a First Class Magistrate, satisfied the requirements of Section 3(e) of the Act.
2. Application of the 'De-facto Doctrine':
The court applied the 'de-facto doctrine,' which states that acts performed by a person under the color of lawful authority are valid even if the appointment is later found to be defective. The court concluded that even if Shri Senger's appointment was defective, the order of release passed by him could not be impugned as he held the office under the color of lawful authority and not as a usurper.
3. Rule of Merger and Rule of Finality:
The appellant argued that the rule of merger would not apply where there is a total lack of jurisdiction in the Tribunal or Court of first instance. However, the court did not find it necessary to delve into this issue, as it had already concluded that Shri Senger was competent to act as a Prescribed Authority. The court also noted that the rule of finality of judgments would apply, making the original order immune from attack once confirmed by the Appellate Authority.
4. Alleged Breach of Undertaking by Respondents:
The appellant claimed that the respondents had breached their undertaking to the court by illegally dispossessing them from the leased portions. The court found that the recovery of possession occurred due to a misunderstanding about the period of force of the undertaking. The respondents believed that the undertaking had ended and took possession nearly two months after the specified period. The court did not find sufficient grounds to sustain the charge of breach of undertaking and illegal recovery of possession.
Conclusion:
The appeal was dismissed, and the court directed the parties to bear their respective costs. The court upheld the validity of the order of release passed by the Prescribed Authority, applying the 'de-facto doctrine' and finding no merit in the appellant's contentions regarding jurisdictional incompetence and breach of undertaking.
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1987 (7) TMI 577
Issues Involved:
1. Scope and effect of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957 (now the Karnataka Motor Vehicles Taxation Act, 1957).
2. Liability to pay tax when a vehicle is not in use or not fit for use.
3. Interpretation of the words "suitable for use on roads" in the context of motor vehicle taxation.
4. Interaction between Section 3(1) of the Taxation Act and Section 38 of the Motor Vehicles Act.
Summary:
1. Scope and Effect of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957:
The Supreme Court examined the scope and effect of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957, which mandates a tax on all motor vehicles suitable for use on roads, kept in the State of Mysore. The Court emphasized that the Explanation to Section 3(1) deems a motor vehicle with a current Certificate of Registration as suitable for use on roads, thus liable for tax irrespective of its actual roadworthiness or possession of a Certificate of Fitness.
2. Liability to Pay Tax When a Vehicle is Not in Use or Not Fit for Use:
The Court held that the liability to pay tax under Section 3(1) is absolute and not contingent on the vehicle being in a roadworthy condition or having a current Certificate of Fitness. The owner or person in possession must pay the tax in advance and can seek a refund under Section 7 if the vehicle was not used for the whole or part of the period for which tax was paid, provided they satisfy the prescribed authority with appropriate proof.
3. Interpretation of "Suitable for Use on Roads":
The Court clarified that the words "suitable for use on roads" describe the kind of vehicles subject to tax and not their condition. This interpretation aligns with Entry 57 of List II of Schedule VII of the Constitution, which allows states to levy taxes on vehicles designed for road use, excluding non-road vehicles like farm machinery and aeroplanes.
4. Interaction Between Section 3(1) of the Taxation Act and Section 38 of the Motor Vehicles Act:
The Court noted that Section 38 of the Motor Vehicles Act, which deals with the necessity of a Certificate of Fitness for transport vehicles, does not impact the liability under Section 3(1) of the Taxation Act. The deeming provision in Section 38 is limited to the purposes of Section 22 of the Motor Vehicles Act and does not extend to the Taxation Act. Therefore, the absence of a Certificate of Fitness does not negate the tax liability under Section 3(1).
Conclusion:
The Supreme Court concluded that the respondents were liable to pay the tax as mandated by Sections 3 and 4 of the Taxation Act, despite the vehicle's unfit condition and lack of use. However, the Court upheld the acquittal of the respondents, as the State did not wish to pursue the prosecution further, and one of the respondents had passed away. The appeal was allowed in terms of clarifying the legal position on the scope and effect of Section 3(1) and its Explanation.
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1987 (7) TMI 576
Issues:
1. Timeliness of the award
2. Error of law on the face of the award
Analysis:
Timeliness of the award:
The case involved an application by a construction company seeking to enforce an award made by an Umpire appointed by the Supreme Court. The respondent raised objections, claiming that the award was made beyond the stipulated time limit. The respondent argued that the Umpire had no jurisdiction to continue arbitration after a certain date. However, the Court held that the parties had willingly participated in the proceedings and had agreed to extend the time for the award. Citing legal precedents, the Court emphasized that the power to extend the time for the award could be granted by the parties themselves under certain circumstances. Therefore, the Court extended the time for the award, deeming it to have been given within the prescribed period.
Error of law on the face of the award:
The respondent contended that the award contained errors of law and inconsistent findings. The Court clarified that to set aside an award based on an error of law on the face of it, the legal proposition forming the basis of the award must be erroneous and explicitly stated in the award. The Court highlighted that in the absence of reasons given by the arbitrator, it was not permissible to speculate on the reasoning behind the award. The Court noted that the award in question did not provide legal propositions that were unsustainable or improper. As the award did not explain the rationale behind the decision, the Court rejected the challenge to the award. Consequently, the objections were dismissed, and a decree was issued in favor of the construction company, confirming the award made by the Umpire.
In conclusion, the Supreme Court upheld the timeliness of the award and rejected the objections raised regarding errors of law on the face of the award. The Court confirmed the award made by the Umpire and issued a decree in favor of the construction company, ordering the respondent to pay the specified amount with interest.
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