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1982 (8) TMI 230
Issues:
1. Cognizance of an offence of abetment under the Essential Commodities Act, 1955 read with the Orissa Petroleum Products (Sale by Dealers) Order, 1979.
Analysis:
The judgment revolves around the revision directed against the order taking cognizance of an offence of abetment under the Essential Commodities Act, 1955. The prosecution's case involved a dealer at a fuelling station who was found with petroleum products exceeding the reserved stock limit and accused of maintaining false accounts. The dealer was alleged to have contravened Clause (3) of the Order by not maintaining the required reserve of high-speed diesel and failing to provide information to the authorities as per Clause (4) of the Order. The key issue was the allegation of abetment against the petitioner, who was described as having purchased and transported the oil but not specifically accused of instigation, conspiracy, or intentional aid.
The judgment delves into the provisions of Clauses 3 and 4 of the Order, emphasizing the obligations imposed on dealers regarding stock reservation and information supply requirements. It highlights that compliance with such notices is the sole duty of the dealer, not the consumer. The judgment also includes a detailed explanation of abetment under Section 107 of the Penal Code, outlining instigation, conspiracy, and intentional aid as the three ways in which abetment can occur. The judgment clarifies the elements of instigation, conspiracy, and intentional aid, emphasizing the need for active complicity or intentional facilitation of a crime to constitute abetment.
The analysis further scrutinizes the complaint against the petitioner, noting the absence of specific allegations regarding instigation, conspiracy, or intentional aid. It underscores the judicial functions of taking cognizance of an offence and issuing a process under the Criminal Procedure Code, emphasizing the need for a judicious approach rather than a routine one. The judgment cites legal precedents to support the principle that if the allegations in the complaint do not disclose the alleged offence, the process should not be issued to prevent harassment of individuals. Based on the analysis, the judgment concludes that allowing the criminal process against the petitioner would be manifestly unjust, leading to the quashing of the order directing the issue of process against the petitioner.
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1982 (8) TMI 229
Issues: Scope of Order 7, Rule 11, C. P. C. regarding disclosure of cause of action in a revision petition.
Analysis:
1. The revision petition before the Rajasthan High Court raised the issue of the scope of Clause (a) of Order 7, Rule 11, C. P. C., specifically concerning whether the plaint discloses a cause of action.
2. The argument centered around whether the cause of action should be determined solely based on the averments in the plaint or if documents filed along with the plaint should also be considered. The petitioner sought permission under Section 38 of the Rajasthan Public Trusts Act, 1959, which was granted by the Assistant Commissioner, leading to an application before the District Judge.
3. The opposing party contended that the permission granted by the Assistant Commissioner was invalid, thus challenging the cause of action. However, the Court emphasized that at the preliminary stage, the focus should be on whether the plaint itself, on its face value, discloses a cause of action, not on the validity of permissions granted by authorities.
4. Reference was made to a Madras High Court decision emphasizing that when a suit is based on a document, the document should be considered part of the plaint. However, the Court reiterated that the validity or invalidity of such documents should not be a consideration at the stage of Order 7, Rule 11, C. P. C.
5. Citing a Supreme Court judgment, the Court highlighted the importance of not entertaining vexatious actions or claims lacking merit, even if cleverly drafted. The Court emphasized the need to prevent frivolous litigation and protect parties from baseless claims.
6. Finally, the Court concluded that while the validity of permissions granted could be raised as a defense in the written statement, it should not be a basis for dismissing the application at the initial stage. The revision petition was allowed, setting aside the District Judge's order and directing further proceedings in accordance with the law.
Outcome:
The revision petition was allowed, the District Judge's order was set aside, and the application under Section 38 of the Rajasthan Public Trusts Act, 1959, was directed to proceed in accordance with the law. Each party was ordered to bear their own costs of the revision petition.
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1982 (8) TMI 228
Issues Involved:
1. Whether a transfer in contravention of Section 19-A(1) of the Punjab Security of Land Tenures Act is void ab initio or only void qua the State but valid between the parties inter se.
2. Discordance between the judgments in Labh Singh v. Punjab Singh and Godhu v. Kanshi Ram regarding the interpretation of Section 19-A(1).
3. Executability of a decree involving land transferred to a big landowner in contravention of Section 19-A(1).
4. Interpretation of Sections 19-A and 19-B of the Punjab Security of Land Tenures Act in relation to the Pepsu Tenancy and Agricultural Lands Act.
Detailed Analysis:
1. Void Ab Initio or Void Qua the State:
The core issue was whether a transfer in contravention of Section 19-A(1) of the Punjab Security of Land Tenures Act is void ab initio or merely void qua the State but valid between the parties. The court concluded that a transfer in contravention of Section 19-A(1) would be void only qua the State for the purposes of the Punjab Act, but would be valid and binding between the parties inter se. This interpretation ensures that while the State's right to utilize surplus land for resettlement is preserved, the transactions between private parties are not rendered completely void.
2. Discordance between Judgments:
The judgment addressed the discordance between the decisions in Labh Singh v. Punjab Singh and Godhu v. Kanshi Ram. Labh Singh's case had held that a transfer exceeding the permissible limit under Section 32-L of the Pepsu Act was null and void, thus non-existent in the eye of law. However, the court overruled this view, stating it did not adequately consider the harmonious construction of the statute. Instead, the court approved the view in Godhu's case, which held that such transfers are void only qua the State but remain valid between the parties.
3. Executability of Decree:
The judgment analyzed whether a decree involving land transferred to a big landowner in contravention of Section 19-A(1) is executable. The court found that the decree was not null and void and was, therefore, executable. The lower appellate court's reliance on Labh Singh's case was misplaced, and the decree should be considered valid between the parties, thus executable.
4. Interpretation of Sections 19-A and 19-B:
The court emphasized the need to interpret Sections 19-A and 19-B of the Punjab Act harmoniously, similar to Sections 32-L and 32-M of the Pepsu Act. The court noted that an overly literal interpretation of Section 19-A(2) would render Section 19-B redundant. Therefore, the court concluded that the provisions should be read together to ensure that while the State's rights are protected, the transactions between private parties are not entirely invalidated.
Conclusion:
The court held that a transfer in contravention of Section 19-A(1) of the Punjab Security of Land Tenures Act is void only qua the State and not between the parties inter se. The judgment in Labh Singh's case was overruled, and the view in Godhu's case was affirmed. The matter was remanded to the learned single Judge for a decision on merits in accordance with this interpretation. The court also addressed the executability of the decree, affirming the decree-holder's right to execute the decree despite the land being declared surplus and vested in the Haryana Government.
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1982 (8) TMI 227
Issues Involved
1. Scheme of Amalgamation
2. Requisitioned Meeting
3. Statutory Obligations under Section 391 of the Companies Act, 1956
4. Change of Circumstances and Subsequent Change of Mind
5. Legal Validity of Requisitioned Meeting
6. Jurisdiction of the Company Court
Detailed Analysis
1. Scheme of Amalgamation
The petitioner company, Centron Industrial Alliance Limited, filed a petition under Section 391 of the Companies Act, 1956, for sanctioning a scheme of amalgamation with Brooke Bond India Ltd. The company has faced financial difficulties since 1975 and has not paid any dividends since becoming a public limited company in 1974. The scheme of amalgamation was approved by 97.30% of the shareholders, 100% of the secured creditors, and 98.50% of the unsecured creditors in a statutory meeting held on January 27, 1981. An application for approval was also made to the Central Government under Section 23 of the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act), which was granted on January 21, 1982.
2. Requisitioned Meeting
An alternative scheme proposed by Harbans Lal Malhotra and Sons Ltd. was rejected by the board of directors and secured creditors as not advantageous. After the Supreme Court declined to stay further proceedings, a requisitioned meeting was requested by some shareholders to consider renegotiating with Brooke Bond India Ltd. or examining alternative schemes. The main purpose of the requisitioned meeting was to compel the company to withdraw Company Petition No. 84 of 1981.
3. Statutory Obligations under Section 391 of the Companies Act, 1956
Under Section 391, once a scheme of amalgamation is approved by the required majority in a statutory meeting, the company is obligated to present a petition for confirmation of the scheme within seven days of the filing of the report by the chairman of the meeting. This scheme, if sanctioned by the court, becomes binding on all members and creditors from the date of approval at the statutory meeting, not from the date of court sanction.
4. Change of Circumstances and Subsequent Change of Mind
The court noted that there was no dispute about the validity of the statutory meetings held for considering the scheme. The secured creditors and a substantial body of shareholders claimed to have changed their minds and wished to demonstrate this change at the requisitioned meeting. However, the court emphasized that a subsequent change of mind by some members and creditors cannot be taken into account. The court cited previous judgments, including those from the Privy Council and the Gujarat High Court, which supported the view that post facto circumstances generally should not be considered unless they are rare and exceptional.
5. Legal Validity of Requisitioned Meeting
The court found that the requisitioned meeting was not called to consider matters affecting the company's internal management but to compel the company to withdraw the pending petition for amalgamation. The explanatory statement annexed to the requisition was deemed insufficient and misleading as it did not present any specific alternative scheme. The court held that the requisitioned meeting interfered with the company's statutory obligation under Section 391 and was, therefore, bad in law.
6. Jurisdiction of the Company Court
The court held that it had jurisdiction to deal with the judge's summons for restraining the holding of the requisitioned meeting. The requisitioned meeting aimed at withdrawing a petition pending under Section 391, which directly related to the court's jurisdiction under the same section. The court made the judge's summons absolute, restraining the holding of the requisitioned meeting and awarded costs to the applicant.
Conclusion
The court concluded that the requisitioned meeting was not legally valid as it aimed to interfere with the statutory obligations of the company under Section 391 of the Companies Act, 1956. The court emphasized that subsequent changes in circumstances or changes of mind by some members and creditors cannot be grounds for reconsidering an already approved scheme of amalgamation. The judge's summons to restrain the holding of the requisitioned meeting was made absolute, and costs were awarded to the applicant.
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1982 (8) TMI 226
Issues:
Challenge to appellate order in service removal case under Article 226 of the Constitution of India. Applicability of Central Civil Service (Classification, Control & Appeal) Rules, 1965. Compliance with Rule 27 of the Rules in appellate proceedings. Adequacy of reasoning in appellate orders. Comparison with a similar case precedent.
Analysis:
The judgment concerns a petition challenging an appellate order in a service removal case under Article 226 of the Constitution of India. The petitioner, a former Projectionist, was removed from service based on proven charges of misconduct related to false attendance records and facilitating inflated payments. The disciplinary authority imposed the penalty of removal after due consideration of inquiry findings and the petitioner's response. The petitioner appealed this decision under Rule 27 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965, which mandates the appellate authority to assess procedural compliance, evidentiary support, and the adequacy of the penalty imposed.
The High Court noted that the appellate authority failed to address the requirements of Rule 27 in a mechanical and inadequate manner. The court emphasized the importance of the appellate authority considering procedural compliance, evidentiary support, and penalty adequacy, as stipulated in the rules. The court referenced a previous case to highlight the significance of proper appellate review, stressing the need for thorough consideration of the appeal grounds and compliance with procedural rules.
The judgment highlighted the appellate authority's failure to provide a reasoned decision, as required by the rules. The court found the appellate order lacking in proper assessment of evidence and the petitioner's appeal grounds. Consequently, the court deemed the appellate order unsustainable in law and quashed it. The court directed the appellate authority to reconsider the appeal in accordance with the law, emphasizing the importance of procedural adherence and thorough review.
In conclusion, the petition challenging the appellate order was allowed, and the court directed the appellate authority to reevaluate the appeal within a specified timeframe. The judgment underscores the significance of procedural compliance, evidentiary assessment, and reasoned decision-making in appellate proceedings related to service removal cases under the applicable rules and legal principles.
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1982 (8) TMI 225
Issues Involved:
1. General lien under Section 171 of the Indian Contract Act, 1872.
2. Validity of the Circular dated October 2, 1979.
3. Contractual relationship between the Port Trust and the consignee.
4. Applicability of the Major Port Trusts Act, 1963.
5. Implied contract and statutory contract.
Detailed Analysis:
1. General Lien under Section 171 of the Indian Contract Act, 1872:
The primary issue was whether the Board of Trustees of the Port of Bombay could claim a general lien over the goods imported by the respondents under Section 171 of the Indian Contract Act, 1872. The court held that Section 171 deals with contractual bailments and does not apply to non-contractual bailments. The Port Trust, being a statutory body, could not claim a general lien under this section as there was no contractual relationship between the Port Trust and the consignee. The court emphasized that the lien under Section 171 is specific to the goods for which the charges are due and does not extend to other goods.
2. Validity of the Circular dated October 2, 1979:
The Circular issued by the Port Trust authorities claimed a general lien over the goods for unpaid charges. The respondents challenged the validity of this Circular, arguing it was ultra vires the Major Port Trusts Act, 1963, and violated Articles 14, 19, 265, and 300A of the Constitution of India. The court found the Circular invalid, holding that the Port Trust could not rely on Section 171 of the Indian Contract Act to claim a general lien. The court issued a Writ of Mandamus directing the Port Trust to withdraw or cancel the Circular.
3. Contractual Relationship between the Port Trust and the Consignee:
The respondents argued that there was no contractual relationship between them and the Port Trust, and thus, Section 171 of the Indian Contract Act was inapplicable. The court agreed, stating that the Port Trust is a bailee of the ship-owner, not the consignee. The court cited the Supreme Court's decision in the Trustees of the Port of Madras v. Sheikh Mohammed Rowther & Co., which held that the Port Trust acts as a bailee for the ship-owner, not the consignee.
4. Applicability of the Major Port Trusts Act, 1963:
The court examined the Major Port Trusts Act, 1963, and concluded that it is a complete code in itself, providing a comprehensive scheme for the collection of charges and rates. The Act does not allow the Port Trust to claim a general lien under Section 171 of the Indian Contract Act. The court emphasized that the specific provisions of the Major Port Trusts Act override the general provisions of the Indian Contract Act.
5. Implied Contract and Statutory Contract:
The appellants argued that an implied contract existed between the Port Trust and the consignee, allowing them to claim a general lien. The court rejected this argument, stating that an implied contract cannot be inferred in the absence of an express agreement. The court also noted that even if an implied contract existed, the Major Port Trusts Act would still govern the relationship, excluding the application of Section 171 of the Indian Contract Act.
Conclusion:
The court dismissed all five appeals, holding that the Port Trust could not claim a general lien under Section 171 of the Indian Contract Act, 1872, and that the Circular dated October 2, 1979, was invalid. The Major Port Trusts Act, 1963, being a complete code, provided the exclusive framework for the collection of charges, and the Port Trust's actions were not supported by any contractual or implied relationship with the consignees. The court awarded costs to the respondents and refused the application for a certificate to appeal to the Supreme Court.
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1982 (8) TMI 224
Issues:
- Dispute over investment allowance for machinery used in construction of a dam
- Interpretation of whether construction of a dam qualifies as an industrial undertaking
- Analysis of relevant case laws and their application to the current case
The judgment by the Appellate Tribunal ITAT Hyderabad involved an appeal by Progressive Engineering Co. regarding the denial of investment allowance for machinery used in constructing a dam. The dispute centered on whether the construction of a dam qualified as an industrial undertaking under section 32A of the Income-tax Act, 1961. The assessee claimed investment allowance of Rs. 5,02,334 for machinery used in the dam construction project. The Commissioner (Appeals) and the Income Tax Officer (ITO) initially denied the claim, arguing that the assessee was not engaged in manufacturing any article. The Commissioner (Appeals) referenced the decision of the Orissa High Court in a similar case but disagreed with the interpretation that a firm of contractors could be considered an industrial undertaking. The assessee, relying on case laws, argued that the construction of a dam should be considered an industrial activity. The Tribunal analyzed the nature of the machinery used, which included compressors, tippers, crushers, and other equipment necessary for construction work.
The Tribunal considered the definition of an industrial undertaking and the requirement under section 32A that machinery should be used for the business of construction, manufacture, or production of any article or thing. The dispute revolved around whether the construction of a dam qualified as an industrial activity. The Tribunal disagreed with the revenue's argument that construction alone would not qualify for investment allowance unless it was related to the construction of an article or thing. The Tribunal cited various case laws, including decisions by the Orissa High Court, Bombay High Court, Delhi High Court, and Calcutta High Court, which supported a broader interpretation of industrial activities. The Tribunal highlighted that the construction of dams, building foundations, and manufacturing processes could be considered industrial activities, even if the word "construction" was not explicitly mentioned in certain legal provisions.
Ultimately, the Tribunal allowed the appeal and directed the ITO to reconsider the claim for investment allowance, acknowledging that the assessee's activity qualified as an industrial undertaking engaged in the business of construction or manufacture of articles or things. The decision emphasized the broader interpretation of industrial activities and the eligibility of the assessee for investment allowance based on the nature of the construction project and the machinery used.
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1982 (8) TMI 223
Issues Involved:
1. Whether a suit instituted during the moratorium period under Act XV of 1976 is to be dismissed as not maintainable or stayed until the expiry of the moratorium period.
Detailed Analysis:
1. Interpretation of Act XV of 1976:
The primary issue revolves around the interpretation of Act XV of 1976, specifically Sections 3 and 4, which respectively bar the institution of suits for the recovery of debts against agriculturists and mandate the stay of pending proceedings during the moratorium period.
2. Conflicting Judicial Opinions:
The court noted conflicting opinions within the judiciary:
- Some decisions held that suits instituted during the moratorium period should be dismissed (e.g., Sarada Ammal v. V.S.M. Veerappa Chettiar).
- Others opined that such suits should be stayed until the moratorium period expired (e.g., Sri Hari Babu Naidu v. S. Alamelu Ammal).
3. Legislative Intent and Judicial Interpretation:
The court examined the legislative intent behind Act XV of 1976. The Act was designed to provide temporary relief to agriculturists by imposing a moratorium on the recovery of debts. The court emphasized that the literal interpretation of Section 3, which states that "no suit for the recovery of a debt shall be instituted," must be followed. This language is clear and unambiguous, indicating an absolute bar on the institution of suits during the moratorium period.
4. Precedents and Judicial Reasoning:
The court reviewed several precedents:
- In Palanichami Chettiar v. The Reliance Bank of India Ltd., the court held that applications filed in contravention of a similar statutory bar must be dismissed.
- In R.M.M. Ramanathan Chettiar v. Ramaswami Pillai, the court upheld the dismissal of suits filed in contravention of the statutory bar.
- The Kerala High Court's Full Bench in Alikutty Sahib v. Cherian also supported the dismissal of suits instituted during the moratorium period.
5. Analysis of Ratnam, J.'s Reasoning:
Ratnam, J., argued that the suits should be stayed rather than dismissed, emphasizing the temporary nature of the moratorium and the legislative intent to provide temporary relief rather than to destroy creditors' rights. However, the court found this reasoning unconvincing, emphasizing that the clear statutory language must be given effect.
6. Subsequent Events and Equitable Relief:
The court acknowledged that subsequent events, such as the expiry of the moratorium period, must be considered in shaping reliefs to avoid undue hardship. The court referenced the Supreme Court's guidance in Rameshwar v. Jot Ram, which allows courts to shape reliefs based on updated circumstances to avoid injustice.
7. Practical Application and Relief:
Given the expiry of the moratorium period and to avoid undue hardship (such as the loss of court fees), the court decided that the proper course of action was to order the return of the plaints rather than dismissing them. This approach allows the plaintiffs to re-present their suits without prejudice, considering the subsequent lifting of the statutory bar.
Conclusion:
The court concluded that suits instituted in contravention of Section 3 of Act XV of 1976 are liable to be dismissed. However, considering the expiry of the moratorium and to avoid undue hardship, the court ordered the return of the plaints with liberty to re-present them within two weeks. There was no order as to costs.
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1982 (8) TMI 222
The Allahabad High Court upheld the Sales Tax Tribunal's decision regarding the turnover of an assessee. The Tribunal deemed sales of bread and biscuits as exempted due to failure to furnish Form 3-A. Sales of Desi Ghee and Gur were also excluded from turnover as proper forms were filed. The revision by the Commissioner, Sales Tax, was dismissed with costs of Rs. 200.
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1982 (8) TMI 221
Issues Involved:
1. Timeliness of the application for leave to contest the eviction petition.
2. Interpretation of the lease agreement regarding the purpose of letting the premises.
3. Bona fide requirement of the landlord for personal use of the premises.
Detailed Analysis:
1. Timeliness of the Application for Leave to Contest:
The initial issue addressed was whether the tenant's application for leave to contest the eviction petition was filed within the prescribed time limit. The Rent Controller had held that the application was barred by time, citing a precedent that prescribed a strict 15-day limitation period. However, the court noted that the Rent Controller's office was closed from 2nd June 1980 to 29th June 1980, and the Additional Rent Controllers were only authorized to handle specific urgent matters, excluding new petitions. Consequently, the tenant's application filed on 30th June 1980, the reopening day, was deemed timely. The court applied Section 10 of the General Clauses Act, 1897, which allows an act to be done on the next working day if the prescribed period expires on a holiday, to conclude that the application was within time.
2. Interpretation of the Lease Agreement:
The second issue involved the interpretation of clause 5 of the lease agreement, which stated the premises could be used "for the residence and personal use of Directors and/or their relatives and for the purposes of the Company." The Rent Controller had interpreted this clause to mean that the primary purpose was residential, and any commercial use was ancillary. The court found this interpretation debatable, noting that the clause was susceptible to the tenant's view that it allowed for broader use, including commercial purposes. The court emphasized that the written agreement was not disclosed in the eviction application, which was a significant omission. This ambiguity warranted granting the tenant leave to defend the eviction petition.
3. Bona Fide Requirement of the Landlord:
The third issue was whether the landlord genuinely required the premises for personal use. The landlord had claimed a bona fide need based on health reasons and the need for his son, who was pursuing education in Delhi, to settle there. The tenant disputed these claims, suggesting the eviction petition was filed due to a refusal to increase rent. The court noted that such claims required thorough examination and evidence. The landlord's need to shift to Delhi, both for business and health reasons, and the requirement for his son, were matters that necessitated a detailed inquiry, thus justifying the grant of leave to contest.
Conclusion:
The revision petition was accepted, and the tenant was granted leave to contest the eviction petition on two grounds:
1. Whether the premises were let for the purpose of residence only.
2. Whether the landlord bona fide required the premises for his own occupation or for any family members dependent on him.
The parties were directed to appear before the Rent Controller for further proceedings, and the tenant was to file a written statement based on these observations. Each party was ordered to bear its own costs for the current proceedings.
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1982 (8) TMI 220
Issues Involved:
1. Vagueness of the Grounds of Detention
2. Distinction between Law and Order and Public Order
Detailed Analysis:
1. Vagueness of the Grounds of Detention:
The appellant challenged the detention order on the grounds that the grounds of detention were vague and did not relate to public order but rather to a law and order situation. The High Court dismissed the writ petition, but the appellant was granted leave to appeal to the Supreme Court.
The Supreme Court examined whether the first paragraph of the grounds of detention was merely introductory or constituted the grounds for detention. The Court noted that if the first paragraph were considered as grounds, it was indeed vague and would invalidate the detention order. However, the Court concluded that the first paragraph was merely introductory, providing context to the specific allegations in the subsequent paragraphs.
The Court emphasized that the grounds of detention must provide sufficient particulars to enable the detenu to make an effective representation. The Court found that paragraphs 2 and 3, which detailed specific incidents involving the appellant, were clear and specific enough to inform the appellant of the allegations against him. The Court rejected the appellant's contention that these paragraphs were vague, noting that the basic facts were provided, allowing the appellant to make an effective representation.
2. Distinction between Law and Order and Public Order:
The appellant argued that the facts alleged in the grounds of detention pertained to law and order rather than public order. The Court reiterated the distinction between the two concepts, emphasizing that public order involves a disorder of a grave nature affecting the community at large, while law and order pertains to individual acts of lesser gravity.
The Court noted the grave situation in Assam due to the ongoing agitation on the issue of foreigners, which had taken a serious turn. The Court concluded that the activities attributed to the appellant, as detailed in paragraphs 2 and 3 of the grounds of detention, related to the maintenance of public order in the context of the prevailing circumstances in Assam.
Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision. The Court found that the grounds of detention were not vague and related to public order, thereby justifying the detention under the National Security Act. The appeal was accordingly dismissed.
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1982 (8) TMI 219
The High Court dismissed an application under section 256(2) of the Income-tax Act, 1961, for directing the Tribunal to state the case and refer questions of law. The case involved the registration of an assessee-firm for the assessment year 1971-72, where the Tribunal relied on an affidavit to establish a partner's status despite it not being filed before the assessing officer's decision. The Court found no illegality in relying on the affidavit as the issue was a question of fact. The application was dismissed with costs.
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1982 (8) TMI 218
Issues Involved:
1. Distinction between 'law and order' and 'public order'
2. Applicability of Article 19 to laws providing punishment for crimes
3. Test for determining violation of fundamental rights
4. Constitutionality of death penalty under Section 302 IPC and Section 354(3) CrPC
5. Burden of proof in cases challenging constitutionality under Articles 14, 19, and 21
6. Deterrent effect of death penalty
7. Arbitrary and capricious nature of death penalty
8. Class bias in the imposition of death penalty
9. Judicial discretion in sentencing
Issue-wise Detailed Analysis:
1. Distinction between 'law and order' and 'public order':
- The distinction lies not merely in the nature or quality of the act but in the degree and extent. Violent crimes committed in different contexts might cause different reactions. For instance, a murder in certain circumstances may only affect 'law and order', while in others, it may disrupt 'public order'. The judgment emphasizes that Article 19 is attracted only to laws capable of being tested under its clauses.
2. Applicability of Article 19 to laws providing punishment for crimes:
- It was reiterated that Article 19 does not apply to laws of preventive detention or laws providing punishment for crimes. The Constitution confers rights under Article 19 but also adopts preventive detention to prevent greater evils. The validity of imprisonment should not be tested with reference to Article 19.
3. Test for determining violation of fundamental rights:
- The judgment adopts the two-fold test from R.C. Cooper's case:
1. The effect of the law and action upon the right attracts the court's jurisdiction.
2. The direct operation of the act upon the rights forms the real test.
- This test was further explained in Maneka Gandhi's case as the "doctrine of intended and real effect" and the "test of proximate effect and operation of the statute."
4. Constitutionality of death penalty under Section 302 IPC and Section 354(3) CrPC:
- The judgment discusses the legislative history and changes in the policy regarding death penalty, highlighting that life imprisonment is the rule and death penalty an exception under Section 354(3). The judgment concludes that the death penalty serves as a deterrent and is not arbitrary, thus not violating Articles 14, 19, and 21.
5. Burden of proof in cases challenging constitutionality under Articles 14, 19, and 21:
- The judgment emphasizes that there is a presumption in favor of the constitutionality of an enactment, and the burden is on the challenger to show clear transgression of constitutional principles. However, in cases involving deprivation of life or personal liberty, the State must show that the procedure is reasonable, fair, and just.
6. Deterrent effect of death penalty:
- The judgment discusses various studies and opinions on the deterrent effect of the death penalty. It concludes that death penalty serves as a deterrent, citing opinions of notable judges and scholars, and the Law Commission's report supporting its deterrent effect.
7. Arbitrary and capricious nature of death penalty:
- The judgment acknowledges the possibility of arbitrariness in the imposition of death penalty but emphasizes the safeguards provided in the CrPC, such as confirmation by the High Court and the right to appeal to the Supreme Court. The judgment rejects the argument that the discretion in awarding death penalty is unguided and arbitrary.
8. Class bias in the imposition of death penalty:
- The judgment does not explicitly address the issue of class bias in the imposition of death penalty. However, it implies that the judicial process and safeguards are designed to minimize any arbitrary or biased application of the death penalty.
9. Judicial discretion in sentencing:
- The judgment supports the discretion given to judges in sentencing, emphasizing that it must be exercised judicially, considering all relevant circumstances. The judgment rejects the argument that the absence of exhaustive standards makes the discretion arbitrary, stating that broad guidelines are sufficient.
In conclusion, the judgment upholds the constitutionality of the death penalty under Section 302 IPC and Section 354(3) CrPC, emphasizing its deterrent effect, the judicial safeguards in place, and the necessity of judicial discretion in sentencing.
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1982 (8) TMI 217
Issues Involved:
1. Whether the Explanation to Order 9, Rule 13 of the Code of Civil Procedure bars the maintainability of an application for setting aside an ex-parte decree when an appeal against the decree has been dismissed as barred by limitation.
2. Whether sufficient cause was shown for condonation of delay in filing the application under Order 9, Rule 13 of the Code of Civil Procedure.
3. Whether sufficient cause was shown for the non-appearance of the respondent at the hearing of the petition for divorce.
Issue-Wise Detailed Analysis:
1. Bar Under Explanation to Order 9, Rule 13:
The primary issue was whether the Explanation to Order 9, Rule 13 of the Code of Civil Procedure (CPC) bars the maintainability of an application for setting aside an ex-parte decree when an appeal against the decree has been dismissed as barred by limitation. The Explanation to Order 9, Rule 13 was introduced by the Code of Civil Procedure (Amendment) Act, 1976, effective from February 1, 1977. Prior to this amendment, a defendant could apply to the trial court under Rule 13 of Order 9 to set aside an ex-parte decree and could also appeal under Section 96 against the decree. The Explanation now specifies that no application for setting aside an ex-parte decree shall lie if the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground of withdrawal by the appellant.
In the present case, the appeal was dismissed as barred by limitation. The Supreme Court held that an appeal presented out of time is still an appeal, and an order dismissing it as time-barred is one passed in appeal. Consequently, the dismissal of the appeal as time-barred constitutes a disposal of the appeal, thereby attracting the bar under the Explanation to Order 9, Rule 13. Therefore, the application for setting aside the ex-parte decree was held to be incompetent and not maintainable.
2. Condonation of Delay in Filing Application:
The second issue was whether sufficient cause was shown for condonation of delay in filing the application under Order 9, Rule 13. The High Court had found that sufficient cause was made out by the husband for condonation of delay in presenting the application under Order 9, Rule 13 beyond the prescribed time. However, since the Supreme Court held that the application itself was barred under the Explanation to Order 9, Rule 13, it did not delve into the merits of whether sufficient cause for condonation of delay was shown.
3. Non-Appearance at the Hearing:
The third issue was whether sufficient cause was shown for the non-appearance of the respondent at the hearing of the petition for divorce. The High Court had concluded that sufficient cause was shown by the husband for his non-appearance at the hearing when the ex-parte decree for divorce was passed. However, similar to the issue of condonation of delay, the Supreme Court did not address this issue in detail because the application for setting aside the ex-parte decree was found to be barred under the Explanation to Order 9, Rule 13.
Conclusion:
The Supreme Court allowed the appeal, set aside the judgment and order passed by the High Court, and restored the ex-parte decree passed in favor of the appellant. The application for setting aside the ex-parte decree was held to be incompetent and not maintainable due to the bar created by the Explanation to Order 9, Rule 13 of the CPC. There was no order as to costs.
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1982 (8) TMI 216
Issues Involved:
1. Validity and legality of the order convening General Court Martial.
2. Constitutional validity of Army Rules 22, 23, 25, and 40.
3. Compliance with procedural requirements under Army Rules 22, 23, 24, and 25.
4. Requirement of setting up a Court of Inquiry under Rule 180.
5. Alleged denial of documents necessary for defense.
6. General fairness and adequacy of the court-martial procedure.
Detailed Analysis:
1. Validity and Legality of the Order Convening General Court Martial:
The petitioners challenged the legality of the General Court Martial (GCM) on the grounds of improper composition as per Rule 40 of the Army Rules. The court held that the composition of the GCM in each case was in compliance with Rule 40, which requires the inclusion of officers from different corps or departments and prohibits the exclusive inclusion of officers from the corps to which the accused belongs. The court clarified that the term "corps" refers to battalions or regiments, not to larger formations such as army corps, making the rule practicable and ensuring unbiased trials.
2. Constitutional Validity of Army Rules 22, 23, 25, and 40:
The petitioners argued that the rules violated their fundamental rights under Articles 14 and 21 of the Constitution. The court held that Article 33 of the Constitution allows Parliament to restrict or abrogate fundamental rights for armed forces personnel to ensure discipline. The Army Act and the Rules were enacted under this provision, and thus, they do not violate Articles 14 and 21. The court cited the precedent set in Ram Sarup v. Union of India, affirming that the provisions of the Army Act and the Rules are valid as they are enacted by Parliament under Article 33.
3. Compliance with Procedural Requirements Under Army Rules 22, 23, 24, and 25:
Petitioners contended that the procedural requirements under Rules 22, 23, and 24 were not followed. The court noted that these rules are mandatory for persons other than officers. For officers, Rule 25 applies, which requires compliance with Rules 22 and 23 only if the officer requests it. The court found that the petitioners, being officers, did not make such requests, and thus, the procedural requirements were not mandatory in their cases.
4. Requirement of Setting Up a Court of Inquiry Under Rule 180:
The petitioners argued that a Court of Inquiry should have been set up as their character and military reputation were at stake. The court clarified that Rule 180 does not mandate setting up a Court of Inquiry in every case where an officer's character or reputation is involved. It only ensures participation rights if such a court is set up. Therefore, the absence of a Court of Inquiry does not invalidate the GCM proceedings.
5. Alleged Denial of Documents Necessary for Defense:
The petitioners claimed they were not provided with necessary documents for their defense. The court emphasized that Rule 33 ensures the right to call witnesses and access documents. The court directed the authorities to provide the required documents to the petitioners to ensure a fair trial.
6. General Fairness and Adequacy of the Court-Martial Procedure:
The court compared the court-martial procedure with the civilian criminal justice system, noting that both are largely analogous. However, the court acknowledged the lack of an appellate review in court-martial cases, which could lead to dissatisfaction among military personnel. The court suggested that Parliament should consider reforms to introduce an appellate mechanism for court-martial decisions, similar to those in the UK and the USA, to ensure fairness and justice.
Conclusion:
The Supreme Court dismissed the petitions, upholding the validity and legality of the General Court Martial and the Army Rules. The court emphasized the need for procedural compliance and suggested reforms to enhance the fairness of the military justice system.
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1982 (8) TMI 215
Issues Involved:
1. Maintainability of the petition under Section 482 Cr. P.C.
2. Interpretation and applicability of Section 110 of the Gold (Control) Act, 1968.
3. Jurisdiction of the Magistrate to order the return of the property.
Issue-wise Detailed Analysis:
1. Maintainability of the Petition under Section 482 Cr. P.C.:
The respondent's counsel raised a preliminary objection regarding the maintainability of the petition under Section 482 Cr. P.C., arguing that the presence of appeal and revision provisions in the Act negates the need to invoke inherent jurisdiction. However, the petitioner contended that the provisions of appeal are not applicable in this case, and cited precedents where inherent powers were exercised to prevent abuse of the court's process. The court referred to the principles enunciated in cases like Madhu Limaye v. State of Maharashtra and Raj Kapoor and others v. State (Delhi Administration), concluding that inherent powers can be exercised to prevent abuse of the process of the court or to secure the ends of justice, even when other remedies are available. Consequently, the preliminary objection was overruled.
2. Interpretation and Applicability of Section 110 of the Gold (Control) Act, 1968:
The petitioner argued that Section 110 of the Act mandates the trial court to deliver the seized gold to the nearest Gold Control Officer, emphasizing the mandatory nature of the provision. The respondent countered that the trial court had examined various documents and found no impediment to returning the gold to the complainant. The court examined Section 110, which outlines the procedure for handling seized gold, and noted the need to determine whether the provision is mandatory or directory and whether it applies to the court or only to the police officers. The court referred to the Punjab & Haryana High Court judgment in R.L. Kaparia v. Munilal Charan Dass, which held that Section 110(2) does not curtail the Magistrate's powers under the Code to dispose of property and is more directory than mandatory.
3. Jurisdiction of the Magistrate to Order the Return of the Property:
The petitioner contended that the Magistrate lacked jurisdiction to return the gold to the complainant, while the respondent argued that the Magistrate had acted within his powers after examining the evidence. The court observed that Section 110(2) of the Act does not mandate the Magistrate to act in a particular way but rather guides the police officers. The court agreed with the observations in the Punjab & Haryana case that the omission of a duty on the Magistrate in Section 110(2) indicates that the legislature did not intend to curtail the Magistrate's powers under the Code. The court found no illegality or infirmity in the Magistrate's order and noted that the Customs Department could still initiate separate proceedings if necessary.
Conclusion:
The court dismissed the petition, holding that the impugned order did not suffer from any illegality or infirmity and did not constitute an abuse of the court's process. The Magistrate's decision to return the gold to the complainant was upheld, with the option for the Customs Department to initiate separate proceedings if required.
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1982 (8) TMI 214
Whether application for stay of suit be rejected?
Held that:- On June 3, 1981, an application for stay of suit was made on behalf of the 1st defendant under s. 34. Ex facie, the proceedings did not disclose any step having been taken by the 1st defendant in the proceedings as would disentitle it to an order under s. 34. 2nd defendant was impleaded in his official capacity. Assuming the application of the 2nd defendant for filing reply to the interim injunction application also binds the 1st defendant though it was not served with the summons yet an application seeking time to file reply to an interim injunction application cannot be said to be a step in the proceedings as would display an unequivocal intention to proceed with the suit or would disclose that the defendants had acquiesced into the resolution of dispute by the court or had abandoned the rights under the arbitration agreement.
The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ’the defendant is ready and willing (ichhuk) for this purpose. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression ’for this purpose’ which would imply that the Ist defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the Ist defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned judge was clearly in error in interfering with the order of the trial court confirmed by the Ist appellate court on this ground also. Appeal allowed - the learned judge of the High Court was clearly in error in interfering with the order made by the trial court and confirmed in appeal granting stay of the suit.
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1982 (8) TMI 213
Issues Involved:
1. Validity of amendments to item 9 of the Second Schedule and item 5 of the Third Schedule of the Tamil Nadu General Sales Tax Act.
2. Legislative competence of the State Government to levy sales tax on sugar candy.
3. Classification of diamond sugar as "sugar" or "sugar candy" for sales tax purposes.
Detailed Analysis:
1. Validity of Amendments to Item 9 of the Second Schedule and Item 5 of the Third Schedule:
The appellant challenged the amendments made to item 9 of the Second Schedule and item 5 of the Third Schedule of the Tamil Nadu General Sales Tax Act, which subjected sugar candy to sales tax while retaining the exemption on sugar. The appellant argued that these amendments were beyond the legislative competence of the State Government and were ultra vires the State Legislature. The appellant contended that the levy of additional excise duty on sugar candy under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, precluded the State from imposing sales tax on the same goods. The appellant further argued that such double taxation would lead to unjust enrichment of the State Government.
The court held that the Central Act 58 of 1957 does not prevent a State Government from levying sales tax on goods covered by that Act. It merely states that if the State levies sales tax on such goods, it will lose its share of the contribution from the Central excise revenue. Therefore, the amendments to item 9 of the Second Schedule and item 5 of the Third Schedule do not suffer from legislative incompetence.
2. Legislative Competence of the State Government to Levy Sales Tax on Sugar Candy:
The appellant relied on the decision in Kishinchand Chellaram v. Joint Commercial Tax Officer [1968] 21 STC 367, arguing that since additional excise duty was levied on sugar, including sugar candy, the State would be estopped from levying sales tax. However, the court distinguished this case by noting that there was no dispute regarding the interpretation of any expression as in Kishinchand Chellaram. The court emphasized that the power of the State Legislature to impose sales tax on sugar candy was not questioned, and the State's classification of sugar candy as a separate article of commerce was within its legislative competence.
The court concluded that the constitutional power given to the State Legislature to legislate on sales tax cannot be said to have been affected or taken away by Central Act 58 of 1957. Therefore, the amendments brought by the State Legislature were valid, and the writ appeal was dismissed.
3. Classification of Diamond Sugar as "Sugar" or "Sugar Candy":
The main question in the two tax case petitions was whether diamond sugar sold by the assessee was "sugar" or "sugar candy." If diamond sugar was considered sugar, it would be exempt from sales tax under item 5 of the Third Schedule. If it was considered sugar candy, it would be subject to sales tax under item 9 of the Second Schedule.
The court referred to the decision in Vasantha & Co. v. State of Madras [1963] 14 STC 696, where sugar candy was considered sugar for exemption purposes. However, the court noted that the amendments in 1975 excluded sugar candy and similar articles from the definition of "sugar" for sales tax purposes. The court emphasized that the legislature has the power to classify articles for taxation and to restrict the exemption to pure sugar.
The court held that diamond sugar, though made from sugar, is a distinct commodity in commercial parlance and is treated differently from sugar. The court noted that diamond sugar is sold as a separate commodity and is not generally considered sugar by consumers. Therefore, the court upheld the orders of the Tribunal, holding that diamond sugar is sugar candy and is liable to sales tax under item 9 of the Second Schedule.
Conclusion:
The writ appeal and the two tax case petitions were dismissed. The court upheld the validity of the amendments to the Tamil Nadu General Sales Tax Act and confirmed the legislative competence of the State Government to levy sales tax on sugar candy. The court also affirmed that diamond sugar is classified as sugar candy and is subject to sales tax. There were no orders as to costs in any of these matters.
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1982 (8) TMI 212
The High Court of Andhra Pradesh dismissed three sales tax revision cases involving the sale of silk fabrics packed in wooden boxes. The Sales Tax Appellate Tribunal ruled that there was no implied contract for the sale of the packing material, and the price of the fabrics included the cost of the wooden containers. The Tribunal's decision was based on relevant facts and evidence, leading to the dismissal of the revision cases.
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1982 (8) TMI 211
Issues:
- Whether the Sales Tax Appellate Tribunal was justified in rejecting the State's petition for enhancement in limine.
- Whether the Tribunal can entertain an enhancement petition in respect of a turnover not before the assessing authority.
Analysis:
The case involved a dispute over the taxation of local sales of M.S. rods made from locally purchased scrap. Initially, the assessing authority did not tax these sales based on a previous court decision. However, the Supreme Court later overturned this decision, allowing the State to levy tax on both scrap and rods. The State filed an enhancement petition before the Sales Tax Appellate Tribunal to tax the first sales of M.S. rods in the State. The Tribunal rejected the petition, stating that the turnover in question was not part of the original assessment or appeal. The State challenged this decision in the High Court.
The Court referred to a previous decision where it was held that in an appeal by an assessee, the entire assessment is open for review by the Tribunal, not just the issues raised in the appeal. If the Tribunal finds that the assessing authority did not assess a liable turnover or assessed it incorrectly, the Tribunal can revise the assessment or order a fresh assessment. Based on this precedent, the Court set aside the Tribunal's decision and directed it to consider the State's enhancement petition on its merits.
In conclusion, the High Court ruled in favor of the State, allowing the Tribunal to entertain the enhancement petition and make a decision based on the merits of the case. No costs were awarded in this matter.
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