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1988 (8) TMI 441
Issues:
Insolvency proceedings under S.9(2) of the Presidency Towns Insolvency Act, 1909; Finality of a decree modified in appeal; Stay of dispossession and liability to pay mesne profits; Interpretation of S.9(2) conditions for issuing insolvency notice.
Analysis:
The appeal before the Madras High Court stemmed from insolvency proceedings initiated by the appellants under S.9(2) of the Presidency Towns Insolvency Act, 1909. The appellants sought to issue notice based on a decree from 1973, modified in appeal in 1983, for the payment of mesne profits amounting to Rs. 23,600. Despite an appeal and stay of dispossession, the liability to pay mesne profits remained. The respondent argued against issuing the insolvency notice citing an interim stay by the Supreme Court. The lower court dismissed the application under S.9(2) but allowed setting aside the insolvency notice under S.9(5).
The appellants contended that the pendency of the appeal did not bar the issuance of notice under S.9(2) and that the liability for mesne profits persisted despite the stay of possession. The respondent, on the other hand, argued that the decree's finality was affected by the appeal and the stay granted by the Supreme Court.
Upon careful consideration, the High Court found that the mere pendency of the appeal did not negate the finality of the decree, especially regarding the liability to pay mesne profits. The court rejected the argument that the respondent's public image would be tarnished if the insolvency notice was issued. The court held that the statutory provisions did not support such a consideration and allowed the appeal, granting costs to the appellants.
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1988 (8) TMI 440
Issues Involved:
1. Validity of the rejection of the nomination paper of Smt. Umrao Ben.
2. Validity of the rejection of the nomination papers of Hukmichand and Suraj Prakash Joshi.
3. Impact of the rejection of the nomination papers on the election result.
Issue-wise Detailed Analysis:
1. Validity of the rejection of the nomination paper of Smt. Umrao Ben:
The appeal under Section 116-A of the Representation of People Act 1951 challenges the High Court's decision to set aside the appellant's election. The High Court held that the nomination paper of Smt. Umrao Ben was validly rejected as she failed to comply with Section 33(5) of the Act. Smt. Umrao Ben, an elector from Sardarpura Assembly Constituency, did not produce a certified copy of the relevant entry in the electoral roll of Sardarpura constituency at the time of scrutiny. The respondent argued that the returning officer, who was also the returning officer for Sardarpura, should have verified the entries from the electoral roll in his custody. However, the court found no merit in these submissions, stating that Section 33(5) is mandatory and the returning officer acted in accordance with the law by rejecting her nomination paper due to non-compliance.
2. Validity of the rejection of the nomination papers of Hukmichand and Suraj Prakash Joshi:
The High Court found that the nomination papers of Hukmichand and Suraj Prakash Joshi were improperly rejected by the returning officer. Both candidates had attained the age of 25 years on the relevant date, contrary to the entries in the electoral roll, which indicated they were below 25 years. The returning officer rejected their nomination papers based on these entries, as neither candidate nor their representatives were present at the time of scrutiny to provide evidence of their actual age. The court held that it was open to the High Court to take a final decision on the matter based on additional material presented during the election petition proceedings, which proved that both candidates were qualified to contest the election.
3. Impact of the rejection of the nomination papers on the election result:
The High Court's decision to set aside the appellant's election was based on the improper rejection of the nomination papers of Hukmichand and Suraj Prakash Joshi, which materially affected the election result. The court found that the respondent had successfully proved that both candidates had attained the age of 25 years on the relevant date through oral and documentary evidence. However, the Supreme Court found that the High Court committed a serious error in appreciating the evidentiary value of the documents produced by the respondent. The documents (Exs. 8, 9, 10, 11, and 12) lacked probative value as there was no evidence to show on whose information the entries regarding the dates of birth were made. As a result, the Supreme Court held that the High Court's findings were not sustainable.
Conclusion:
The Supreme Court concluded that the rejection of Smt. Umrao Ben's nomination paper was valid due to non-compliance with Section 33(5) of the Act. However, the rejection of Hukmichand and Suraj Prakash Joshi's nomination papers was found to be improper, but the High Court's decision to set aside the election based on this rejection was flawed due to the lack of probative evidence regarding their ages. The Supreme Court emphasized that the burden of proof was on the respondent to provide cogent and reliable evidence to prove the ages of the candidates, which was not adequately done in this case.
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1988 (8) TMI 439
Issues Involved:
Whether the workmen employed in canteens established under Section 46 of the Factories Act, 1948, in certain Defence establishments are entitled to have their service period prior to 22.10.1980 counted as qualifying service for pension purposes.
Issue-wise Detailed Analysis:
1. Status of Canteen Workers Prior to 22.10.1980:
The primary issue is whether the service rendered by canteen workers before 22.10.1980 qualifies as part of the service period for pension purposes. The canteens in question were established under Section 46 of the Factories Act, 1948, in Defence establishments such as Ordnance Equipment Factory, Central Ordnance Depot, and Air Force Station in Kanpur. These were managed by Canteen Managing Committees, which were responsible for appointing workers, paying their salaries, and controlling the canteens. However, these committees were not incorporated bodies and their financial positions were uncertain.
2. Government Order and Its Implementation:
A Government Order dated 25th July 1981, later amended to be effective from 22.10.1980, declared all canteen employees in Defence Industrial Installations as Government employees. This order was applicable to all employees of statutory canteens irrespective of their management type. The Defence Department, however, refused to count the service period prior to 22.10.1980 for pension purposes, arguing that the workers became Government employees only from that date.
3. Legal Obligations and Definitions:
Section 46 of the Factories Act mandates the establishment of canteens in factories employing more than 250 workers. The responsibility to establish these canteens lies with the 'occupier' of the factory, defined under Section 2(n) of the Act as the person with ultimate control over the factory's affairs. For Government-run factories, this would be the person appointed by the Central Government. The Act and the U.P. Factories Rules, 1950, stipulate the formation of a Canteen Managing Committee, whose functions are advisory in nature.
4. Role of the Canteen Managing Committee:
The Canteen Managing Committee, constituted under Rule 68 of the U.P. Factories Rules, 1950, was responsible for managing the canteen's affairs but was not the true employer of the canteen workers. The occupier of the factory, in this case, the Defence Department, was considered the actual employer responsible for complying with Section 46 of the Act.
5. Subsidization and Control by the Government:
A letter from the Ministry of Defence dated 24.5.1965 outlined that the Government would subsidize the cost of supervisory and clerical staff, cooks, bearers, and other canteen workers. The canteen's prices were to be reduced proportionate to the subsidy received from the Government. This further indicated that the canteens were an integral part of the Defence establishments and under Government control.
6. Judgment and Directives:
The Court concluded that the canteen workers were indeed employees of the factories where the canteens were established. Consequently, the service period prior to 22.10.1980 should be counted as part of the qualifying service for pension. The Union Government was directed to treat the pre-22.10.1980 service period as qualifying service for pension purposes and to recompute the pension for those who retired on or after 22.10.1980. This computation was to be completed within six months, and arrears were to be disbursed within three months thereafter.
Conclusion:
The petitions were allowed, directing the Union Government to treat the pre-22.10.1980 service period of canteen workers in Defence establishments as qualifying service for pension purposes. The pension for retirees was to be recomputed and arrears paid accordingly. No costs were imposed.
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1988 (8) TMI 438
Issues Involved:
1. Validity of the charge-sheet submitted without the Forensic Science Laboratory report.
2. Applicability of Section 167(2) of the Cr. P.C. for bail.
3. Judicial Magistrate's acceptance of the charge-sheet.
4. Merits of the bail application based on possession of opium.
Detailed Analysis:
1. Validity of the Charge-Sheet Submitted Without the Forensic Science Laboratory Report:
The petitioner was arrested for possession of 10 K.G. of opium, and the charge-sheet was submitted without the Forensic Science Laboratory report due to the impending expiration of the 90-day period. The petitioner argued that without the laboratory report, the submission did not qualify as a report under Section 173(2) of the Cr. P.C., thus entitling him to bail under Section 167(2). The court noted that the report was accepted by the Judicial Magistrate as a charge-sheet, and cognizance was taken, making it inappropriate to challenge its validity in a bail application. The court emphasized that once the charge-sheet is accepted and cognizance is taken, the provisions of Section 167(2) no longer apply, and the case is governed by Section 309 of the Cr. P.C.
2. Applicability of Section 167(2) of the Cr. P.C. for Bail:
The petitioner contended that he was entitled to bail under Section 167(2) because the charge-sheet was incomplete without the Forensic Science Laboratory report. The court clarified that the prohibition under Section 167(2) is against remanding an accused to custody beyond 90 days without a charge-sheet. Since the Judicial Magistrate accepted the charge-sheet and took cognizance, Section 167(2) was no longer applicable. The court referred to previous judgments, including Vihabhai Ramdas Patel v. Hemtuji Shivaji Dabhi, which supported the view that a charge-sheet without the chemical analyzer's report is still valid under Section 173(2).
3. Judicial Magistrate's Acceptance of the Charge-Sheet:
The court highlighted that the Judicial Magistrate accepted the charge-sheet and took cognizance of the offenses, issuing process accordingly. This act was not challenged, and the court deemed it inappropriate to question the Magistrate's action in a bail application. The court mentioned that the case was already committed to the Sessions Court, and the Forensic Science Laboratory report received later confirmed the presence of opium, thus supporting the charge.
4. Merits of the Bail Application Based on Possession of Opium:
On the merits, the court noted that the petitioner was found in possession of 10 Kgs. of opium with a morphine percentage exceeding the legal threshold. Given the serious nature of the offense, the court found no grounds to release the petitioner on bail. The court dismissed the application, stating that the petitioner did not deserve bail on merits.
Conclusion:
The court dismissed the bail application, ruling that the charge-sheet submitted without the Forensic Science Laboratory report was valid under Section 173(2) of the Cr. P.C., and the Judicial Magistrate's acceptance of the charge-sheet precluded the application of Section 167(2). The court also found no merit in the bail application based on the serious nature of the offense involving a significant quantity of opium. The court ordered the return of the records and proceedings to the Sessions Court, Vadodara.
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1988 (8) TMI 437
Issues Involved:
1. Leave to withdraw public interest litigation.
2. Court's alleged dysfunctionality and delays.
3. Applicant's ability to conduct proceedings with dignity.
4. Right of a public-minded citizen to withdraw a public interest litigation.
5. Continuation of litigation by another party or organization.
6. Modification of previous court orders regarding the use of collected information.
Detailed Analysis:
1. Leave to Withdraw Public Interest Litigation:
The applicant sought permission to withdraw the main public interest litigation (PIL) which highlighted gross violations of constitutional and statutory rights of children in custodial restraints. The applicant argued that she had the right to withdraw the proceedings as they were initiated by her voluntary action, and contended that the court could not refuse this leave. The court disagreed, emphasizing that the proceedings in a PIL transcend traditional forms and inhibitions, and the rights of those who bring the action must be subordinate to the interests of those for whose benefit the action is brought.
2. Court's Alleged Dysfunctionality and Delays:
The applicant claimed that the court had become "dysfunctional" in addressing the gravity of children's rights violations and had failed to dispose of the proceedings expeditiously due to unjustified adjournments and procedural deficiencies. The court acknowledged the delays but highlighted the significant actions and directions issued from time to time, including orders to release detained children, provide legal assistance, and set up appropriate custodial facilities. The court emphasized that the nature of PILs involves ongoing supervision and implementation, which does not align with the concept of final disposal in traditional litigation.
3. Applicant's Ability to Conduct Proceedings with Dignity:
The applicant asserted that certain occurrences in court had cast a slur on her integrity and dignity, preventing her from conducting the proceedings with dignity. The court examined these claims and found them insubstantial. It noted that the applicant's interruptions during hearings and her direct communications with judges were deemed improper. The court emphasized that while litigants are entitled to present their cases with dignity, they must adhere to the court's decorum and procedures.
4. Right of a Public-Minded Citizen to Withdraw a Public Interest Litigation:
The applicant argued that she, representing other conscientious citizens, had the right to withdraw the PIL and that it could not be continued without her participation. The court rejected this argument, stating that recognizing such a right would render PILs vulnerable to personal ends, prejudicing the public interest. The court reiterated that the proceedings in a PIL are not comparable to private litigation, and the rights of those who initiate the proceedings are subordinate to the public interest.
5. Continuation of Litigation by Another Party or Organization:
The court directed that the proceedings be continued by the Supreme Court Legal Aid Committee, with the aid and assistance of other permitted persons or agencies. This decision was based on the need to ensure the continuation of the important issues highlighted in the main petition, which served the cause of a large number of suffering children.
6. Modification of Previous Court Orders Regarding the Use of Collected Information:
The applicant sought modification of the court's orders forbidding her from using information collected during her visits to jails and custodial institutions. The court denied this request, emphasizing that the information was gathered for the purposes of the case and pursuant to its directions. The court maintained that the information could not be used during the pendency of the proceedings.
Conclusion:
The Supreme Court dismissed the applicant's request to withdraw the PIL and directed that the proceedings continue under the supervision of the Supreme Court Legal Aid Committee. The court emphasized that the nature of PILs requires ongoing supervision and implementation, and the rights of those who bring such actions are subordinate to the public interest. The court also denied the applicant's request to use collected information for purposes other than the case.
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1988 (8) TMI 436
Issues:
1. Validity of the order quashing the final order made under Section 145 of Cr. P.C.
2. Interpretation of the decision in Ram Sumer's case regarding parallel civil and criminal proceedings.
3. Misunderstanding of the decision in Ram Sumer's case by the High Court.
Analysis:
Issue 1: Validity of the order quashing the final order under Section 145 of Cr. P.C.
The case involved a dispute over possession of a shop premises. The High Court of Madhya Pradesh quashed the final order made under Section 145 of Cr. P.C. The Magistrate's order had granted restoration of possession to the petitioner, but the petitioner could not be put into possession. The respondent challenged the final order under Section 145(6) of Cr. P.C. in a revision before the Sessions Judge, which was dismissed. Subsequently, the High Court quashed the proceedings under Section 145 Cr.P.C., citing the pendency of civil proceedings and the undesirability of parallel proceedings. The Supreme Court held that the High Court had misunderstood the decision in Ram Sumer's case and reinstated the Magistrate's order, emphasizing that the order under Section 145 Cr.P.C. only deals with possession on a particular day and does not confer title to remain in possession.
Issue 2: Interpretation of the decision in Ram Sumer's case regarding parallel civil and criminal proceedings
The Supreme Court clarified the principles laid down in Ram Sumer's case, emphasizing that parties should not be allowed to litigate before a criminal court when a civil suit is pending on the same subject matter. The Court highlighted that a concluded order under Section 145 Cr.P.C. should not be set aside simply because the unsuccessful party has approached the civil court. The order under Section 145 Cr.P.C. pertains to possession only and is subject to the decision of the civil court. The unsuccessful party must seek relief in the civil court by filing a suit for declaration and proving a better right to possession.
Issue 3: Misunderstanding of the decision in Ram Sumer's case by the High Court
The Supreme Court criticized the High Court for misinterpreting the decision in Ram Sumer's case. The Court clarified that the essence of the decision was to prevent parallel proceedings and not to nullify a valid order made by a Magistrate under Section 145 Cr.P.C. The High Court's order was deemed erroneous, and the Supreme Court set it aside, directing the parties to pursue their rights in accordance with the law.
In conclusion, the Supreme Court allowed the appeal, overturned the High Court's order, and reinstated the Magistrate's order. The Court emphasized the importance of avoiding parallel civil and criminal proceedings and reiterated that possession disputes should be resolved primarily through the civil court system.
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1988 (8) TMI 435
Issues:
1. Promotion dispute between petitioner and respondent 5 for the post of Lower Division Clerk (L.D.C.)
2. Alleged violation of Model Rules in the promotion process
3. Maintainability of the writ petition based on previous withdrawal
The judgment pertains to a writ petition seeking to quash a resolution promoting respondent 5 over the petitioner to the post of Lower Division Clerk (L.D.C.). The petitioner, a matriculate tax collector, contended that promotions in the ministerial cadre are typically from the tax department, and the petitioner, being senior, should have been considered. The respondent municipality promoted respondent 5 without complying with Rule 5 of the Model Rules, which mandates promotion based on seniority unless reasons are recorded for passing over an employee. Counter affidavits revealed that respondent 5 had a higher pay scale and was confirmed earlier than the petitioner. The petitioner's earlier withdrawn writ petition raised a preliminary objection on the maintainability of the present petition, citing the rule of res judicata. The case was transferred to a Division Bench for consideration.
The maintainability of the writ petition was extensively debated, drawing on precedents like Hoshnak Singh v. Union of India and Daryao v. State of Uttar Pradesh. The principle of res judicata, as enshrined in Section 11 of the Civil Procedure Code, was highlighted. The Supreme Court's stance on the binding nature of decisions pronounced on merits in writ petitions unless modified or reversed through appropriate proceedings was reiterated. The Division Bench referenced the Sarguja Transport case, where the withdrawal of a writ petition without leave to file a fresh petition on the same cause of action was held to create a bar. The application of Order 23, Rule 1(3) of the Code and the rule of res judicata in different scenarios was emphasized to determine the maintainability of the present writ petition.
Ultimately, the Division Bench, in line with the law laid down in the Sarguja Transport case, concluded that the writ petition was not maintainable and dismissed it. Justice B.P. Singh concurred with the decision, affirming the dismissal of the petition. The judgment underscores the importance of adhering to legal principles of res judicata and procedural rules governing the filing of writ petitions, ensuring consistency and finality in judicial decisions.
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1988 (8) TMI 434
Issues:
1. Challenge of Co-operative Court award by petitioner.
2. Review petition rejection by Maharashtra State Co-operative Appellate Court.
3. Writ petition rejection by High Court as premature.
4. Appeal rejection by Co-operative Appellate Court on the ground of limitation.
5. Application under section 91 of the Maharashtra Co-operative Societies Act against the petitioner.
6. Implication of petitioner in misappropriation by Co-operative Court.
7. Lack of connection between petitioner and the Co-operative Society.
Analysis:
1. The writ petition stemmed from proceedings initiated by a Co-operative Society under the Maharashtra Co-operative Societies Act, involving a truck hire dispute. The Co-operative Court's award was challenged through appeals, with the petitioner not challenging the initial award. The Maharashtra State Co-operative Appellate Court partially allowed the appeals, leading the petitioner to file a review petition, which was rejected. Subsequent legal actions included a premature writ petition and an appeal rejected by the Co-operative Appellate Court on the grounds of being time-barred.
2. The petitioner argued for condonation of delay citing a Supreme Court decision emphasizing substantial justice over technicalities. The respondent contested based on limitation, highlighting the petitioner's participation in prior proceedings. Despite discrepancies in the petitioner's awareness of the award, the court found the case aligned with the Supreme Court's stance on substantial justice, warranting a decision based on merit rather than dismissing it on technical grounds.
3. The petitioner challenged the application under section 91 of the Act, arguing lack of tenability against him as he was not a member, servant, or connected to the society. Inconsistent findings by the Co-operative Court regarding the petitioner's association with the society raised doubts. The absence of any mention of the petitioner in the dispute application further supported the petitioner's position, leading to the quashing of the award against him.
4. The respondent attempted to justify the award by claiming the petitioner's connection to the society as a servant. However, the lack of evidence supporting this connection in the application weakened the respondent's stance. The court emphasized the importance of not legalizing injustice on technical grounds, leading to the quashing of the award and the appellate order against the petitioner.
In conclusion, the judgment addressed various legal aspects, including challenges to awards, review petitions, writ petitions, and applications under the Maharashtra Co-operative Societies Act. The court prioritized substantial justice over technicalities, ultimately leading to the quashing of the award against the petitioner due to lack of evidence connecting him to the misappropriation dispute.
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1988 (8) TMI 433
Issues Involved:
1. Author of the Book "India Wins Freedom"
2. Validity of the Agreement Dated 2nd September, 1958
3. Authority of Prof. Humayun Kabir to Execute the Agreement
4. Rights of the Legal Representatives of Maulana Azad
5. Application of Promissory and Equitable Estoppel
6. Interim Injunction and Balance of Convenience
Detailed Analysis:
1. Author of the Book "India Wins Freedom":
The primary issue was determining the true author of "India Wins Freedom." According to the plaintiff, Maulana Azad wrote the book, with Prof. Humayun Kabir assisting in its composition. Defendant No. 6, however, contended that Prof. Kabir was the sole author. The court examined the preface written by Prof. Kabir and concluded that there was active and close intellectual collaboration between Maulana Azad and Prof. Kabir. The court stated, "Both of them actively and intellectually collaborated in the compositions of the literary work." Thus, Maulana Azad and Prof. Kabir were regarded as joint authors.
2. Validity of the Agreement Dated 2nd September, 1958:
The plaintiff argued that Prof. Kabir had no authority to enter into the agreement with Orient Longmans. The court noted that the agreement was signed by Prof. Kabir, who was stated to be the composer of the book. The agreement provided for the publication of the book and the distribution of royalties. The court held that the agreement was valid, stating, "Having enjoyed the fruits of the said agreement for all these years the legal representatives of Maulana Azad are estopped from challenging the validity of the said agreement."
3. Authority of Prof. Humayun Kabir to Execute the Agreement:
The court examined whether Prof. Kabir had the authority to execute the agreement. It was noted that Fatima Begum, a legal representative of Maulana Azad, had signed a document on 29th May, 1958, agreeing to the arrangement made by Prof. Kabir with Orient Longmans. The court concluded that this action ratified Prof. Kabir's authority, stating, "The action of Prof. Kabir was ratified by Fatima Begum."
4. Rights of the Legal Representatives of Maulana Azad:
The plaintiff claimed that the legal heirs of Maulana Azad had the exclusive right to decide upon the publication of the complete book. The court noted that Fatima Begum and Nooruddin Ahmed, the legal heirs, had received royalties under the agreement. The court held that the legal representatives had acquiesced to the arrangement for nearly 30 years and were estopped from challenging it now.
5. Application of Promissory and Equitable Estoppel:
The court applied the principles of promissory and equitable estoppel, noting that the legal representatives had accepted royalties for nearly 30 years without objection. The court stated, "Having acquiesced to this arrangement, it is now too late for the legal representatives of Fatima Begum to undo the wishes of the author, Maulana Azad."
6. Interim Injunction and Balance of Convenience:
The plaintiff sought an interim injunction to restrain the defendants from breaking the seals of the covers of the complete book. The court vacated the ad interim injunction, stating, "The balance of convenience is against the plaintiff and no injunction should be granted." The court noted that the plaintiff's rights could be adequately secured by putting defendant No. 1 to terms, requiring them to give security before publishing the complete book.
Conclusion:
The court concluded that Maulana Azad and Prof. Humayun Kabir were joint authors of "India Wins Freedom." The agreement dated 2nd September, 1958, was valid, and Prof. Kabir had the authority to execute it. The legal representatives of Maulana Azad were estopped from challenging the agreement due to their long-term acquiescence. The interim injunction was vacated, allowing the defendants to publish the complete book upon providing security.
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1988 (8) TMI 432
Issues:
1. Jurisdiction of the arbitrator to conclude the arbitration proceedings.
2. Violation of principles of natural justice.
3. Consideration of all claims in the arbitration award.
4. Validity of the arbitration award without reasoning provided.
Analysis:
Issue 1: Jurisdiction of the arbitrator
The case involved a dispute regarding the jurisdiction of the arbitrator to conclude the arbitration proceedings after a change in the arbitrator. The petitioner argued that the successor arbitrator had no jurisdiction to proceed without a fresh agreement. However, the Court held that the petitioner had knowledge of the change and actively participated in the proceedings before the successor arbitrator. The Court cited precedents emphasizing that parties, by acquiescing in the appointment with full knowledge, are precluded from objecting to the appointment as invalidating subsequent proceedings. The Court found that the arbitrator had the authority to pass the award, and the challenge on this ground was rejected both by the District Judge and the High Court.
Issue 2: Violation of principles of natural justice
The petitioner contended that there was a violation of the principles of natural justice due to the change in the arbitrator. However, the Court dismissed this objection, stating that attending and taking part in the proceedings with full knowledge of the circumstances amounted to acquiescence, as per legal principles outlined in various judgments. The Court emphasized that acquiescence defeated the right of the appellant at a later stage, and therefore, the objection based on natural justice was not entertained.
Issue 3: Consideration of all claims in the arbitration award
The petitioner raised concerns that the arbitration award did not consider all the claims presented. The Court held that it must be assumed that the arbitrator had considered all the evidence adduced before him unless there was a patent mistake of law or gross misstatement of facts resulting in a miscarriage of justice. The Court found no indication of such errors and concluded that the award was unassailable in this regard.
Issue 4: Validity of the arbitration award without reasoning provided
The arbitrator did not provide reasons for the award, which led to a contention that the award was bad. The Court clarified that unless there was a patent mistake of law or gross misstatement of facts resulting in a miscarriage of justice, the award remains unassailable. The Court cited legal precedents emphasizing that there is no appeal from the verdict of the arbitrator, and the Court cannot review the award unless there is a clear error of law or fact resulting in injustice.
In conclusion, the Supreme Court upheld the decision of the High Court, affirming the dismissal of the challenge to the arbitration award. The Court found that the award was not assailable based on the issues raised by the petitioner, and the petitions were dismissed without any order as to costs.
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1988 (8) TMI 431
Issues:
1. Contempt petition for failure to comply with court orders.
2. Compliance with Supreme Court Rules for filing affidavits.
Analysis:
1. The complainant filed a petition seeking contempt action against the accused for not complying with the court's orders dated 14.7.1986. However, both the complainant's affidavit and the reply affidavit did not adhere to the provisions of the Supreme Court Rules or Order 19 Rule 3 of CPC. The complainant's affidavit lacked specificity and failed to distinguish between facts based on personal knowledge, information, and belief, as required by the rules. The purpose of verification in affidavits is crucial to determine the authenticity of the allegations, especially in cases involving disobedience of court orders or mala fides. The Court emphasized the importance of complying with the rules to ensure the probative value of affidavits in presenting evidence before the Court.
2. The Court observed a trend of filing affidavits in a careless manner without following the rules, even by individuals lacking personal knowledge of the stated facts. Referring to a previous judgment highlighting the significance of proper verification, the Court stressed the need for meticulous verification following the guidelines of Order XIX, Rule 3 of the Civil Procedure Code. In the present case, the verification in the complainant's affidavit was found to be defective, leading to doubts about the allegations in the contempt petition. Furthermore, the reply affidavit filed on behalf of the accused by an office clerk of an advocate was deemed improper and inadmissible, as it lacked a valid verification process and was based on records from a different location. The Court criticized the practice of clerks filing affidavits without proper verification, emphasizing the responsibility of litigants and lawyers to submit affidavits in compliance with the rules to assist in the administration of justice.
3. Due to the non-compliance of both affidavits with the rules, the Court concluded that no reliance could be placed on them, leading to the rejection of both affidavits and dismissal of the contempt petition on this ground. However, the Court granted the parties an opportunity to file proper affidavits within six weeks to rectify the deficiencies. The judgment highlighted the necessity of strict adherence to the rules governing the filing of affidavits in matters presented before the Supreme Court to ensure the credibility and reliability of the evidence submitted for consideration.
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1988 (8) TMI 430
Issues Involved:
1. Legality of the proposed agreement of "Darjeeling Gurkha Hill Council."
2. Use of the term "Gurkha" in the proposed agreement.
3. Petitioners' locus standi in filing the writ petition.
4. Justiciability of political questions by the court.
5. Executive power and its scope in entering into the memorandum of settlement.
Detailed Analysis:
1. Legality of the proposed agreement of "Darjeeling Gurkha Hill Council":
The petitioners sought a writ of mandamus and certiorari, challenging the proposed agreement on the grounds that it was inconsistent with the Constitution of India and could spread communal ill-feeling. They argued that the agreement would divide the country and jeopardize the interests of the State. The respondents countered that the memorandum of settlement had no legal effect until appropriate legislation was enacted. The court found that the memorandum per se had no legal entity and required legislation for enforcement. Thus, the challenge was deemed premature.
2. Use of the term "Gurkha" in the proposed agreement:
The petitioners contended that the use of the term "Gurkha" in the proposed agreement should be avoided as it could lead to communal divisions. The court did not find sufficient grounds to entertain this argument at this stage, as the memorandum of settlement was not yet legally binding.
3. Petitioners' locus standi in filing the writ petition:
The petitioners claimed that they filed the writ petition in public interest, arguing that the steps taken by the respondents violated the spirit of the Constitution. The court acknowledged the petitioners' right to file a public interest litigation but found the petition premature. The court emphasized that the petitioners could challenge the legislation if and when it was enacted.
4. Justiciability of political questions by the court:
The respondents argued that political questions are generally non-justiciable, citing several decisions to support their claim. The court agreed, stating that it would be dangerous for the court to determine political questions, as it would usurp the function of the Central Government. The court emphasized that political solutions to end conflicts should not be brought before the court unless they were mala fide or based on extraneous grounds.
5. Executive power and its scope in entering into the memorandum of settlement:
The respondents argued that the memorandum of settlement was an exercise of executive power aimed at bringing peace and avoiding conflict. The court referred to previous cases, noting that executive functions include policy determination and execution. The court found that the memorandum of settlement required legislative approval to have any legal effect. The court concluded that the executive's actions were within its power and that the petitioners' challenge was premature.
Conclusion:
The court rejected the writ petition without any order as to costs, deeming it premature. The court clarified that it had not decided on the proposed steps likely to be taken by the respondents subsequent to the signing of the accord. The petitioners were advised to challenge the legislation if and when it was enacted.
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1988 (8) TMI 429
Issues:
1. Eviction of tenant on the ground of personal necessity under the Madhya Pradesh Accommodation Control Act, 1961.
2. Requirement of establishing ownership of premises by the landlord for eviction.
3. Interpretation of the landlord's bona fide necessity clause under Section 12(1)(f) of the Act.
4. Consideration of evidence and reversal of lower court findings by the High Court under Section 100 of the Code of Civil Procedure.
The judgment deals with the appeal arising from a suit for eviction filed by the respondent against the appellant, who is a tenant in a shop in Madhya Pradesh. The respondent claimed eviction on the ground of personal necessity under the Madhya Pradesh Accommodation Control Act, 1961. The trial court and the first appellate court dismissed the suit, but the High Court, in a second appeal, reversed the decision and passed a decree for eviction. The main issue in the case was whether the respondent had established ownership of the premises as required under Section 12(1)(f) of the Act for eviction on the ground of bona fide necessity for business purposes.
The defendant, who was the tenant, had been paying rent to the plaintiff, the respondent, who claimed ownership of the shop for starting a business. The trial court rejected the claim of ownership as the property stood in the name of the plaintiff's brother in the Municipal Corporation's register. The Additional District Judge upheld this finding, stating that the plaintiff did not produce the deed of partition to prove ownership. However, the High Court reversed this decision and decreed the suit for eviction based on the evidence presented.
The appellant argued that the High Court's reversal of the lower court findings was illegal under Section 100 of the Code of Civil Procedure, as the first two courts had recorded a concurrent finding. The Supreme Court reviewed the judgments and documents and found that the High Court was justified in its decision. The High Court considered crucial evidence, such as the notice sent by the plaintiff asserting ownership and receipts signed by the tenant acknowledging the plaintiff as the owner. The lower courts had failed to consider this evidence, leading to a substantial question of law. The High Court's power to interfere with findings based on substantial questions of law was upheld, and the appeal was dismissed, affirming the High Court's decree for eviction.
In conclusion, the judgment clarified the importance of establishing ownership for eviction on the ground of personal necessity under the Madhya Pradesh Accommodation Control Act. It emphasized the need for courts to consider all relevant evidence and the power of the High Court to intervene when substantial questions of law arise. The decision highlighted the significance of proper evaluation of evidence in determining eviction cases under the Act.
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1988 (8) TMI 428
Issues:
- Application for setting aside the award barred by lapse of time
- Requirement of notice under Section 14(2) of the Arbitration Act, 1940
- Interpretation of the term "notice" in the context of filing of an award
- Compliance with the statutory requirements for setting aside an award
Analysis:
The appeal in question was against the judgment of the High Court of Calcutta, which dismissed an application for setting aside an award on the grounds of being time-barred. The appellant filed an affidavit on 4th February, 1978, stating that the award had been wrongly filed in the High Court and requested its removal. The respondent's advocate took out a Master's Summons on 10th January, 1978, based on an earlier affidavit affirming the filing of the award. The notice under Section 14(2) of the Arbitration Act was served on the appellant on 30th July, 1981, following which the appellant applied for a certified copy of the award on 18th August, 1981, and filed the application for setting aside the award on 8th September, 1981.
The central issue revolved around the interpretation of the term "notice" under Section 14(2) of the Act. The appellant contended that the notice was served after 30th July, 1981, making the application within the limitation period. The High Court, however, held that the notice was served prior to the specified date, rendering the application time-barred. The Supreme Court emphasized that the notice need not be in writing and could be communicated orally, as long as there was intimation of the filing of the award to the parties or their counsel.
The Court referred to previous judgments to support its interpretation, highlighting that the communication of the filing of the award by the Court to the parties was essential for compliance with the statutory requirements. The Court reiterated that the crucial aspect was the service of the notice by the Court, regardless of the method of service. In this case, both Courts found that the notice had been issued and served before 30th July, 1981, leading to the conclusion that the application was time-barred.
The appellant argued that the service of notice under Section 14(2) was mandatory and that the application for setting aside the award would not be time-barred until such notice was served. However, the Court clarified that mere knowledge of the filing of the award was insufficient, emphasizing the necessity of formal service of notice by the Court to the concerned parties. Ultimately, the Court upheld the decision of the High Court, dismissing the appeal without costs.
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1988 (8) TMI 427
Issues Involved:
1. Interpretation of Rule 10 of the Madhya Pradesh Selection for Post-Graduation Course Rules, 1984.
2. Right to admission to a seat in the PG course in MD/MS falling vacant in the midst of or towards the end of an academic year.
3. Power of the State Government to transfer a seat in any discipline of the PG course in MD/MS from one medical college to another.
Issue-wise Detailed Analysis:
1. Interpretation of Rule 10 of the Madhya Pradesh Selection for Post-Graduation Course Rules, 1984:
The main controversy revolves around the interpretation of Rule 10, which states, "The seats available in any particular year will be filled up in that year. No candidates will be admitted against the seats remaining vacant from previous year." The court emphasized that Rule 10 must be interpreted by its written text. The clear and explicit language of Rule 10 indicates that any seat falling vacant in a particular academic year must be filled within that year. The rule explicitly prohibits carrying forward vacant seats to the next academic year. This interpretation is reinforced by the second part of Rule 10, which uses negative language to bar the carry-forward of vacancies.
2. Right to admission to a seat in the PG course in MD/MS falling vacant in the midst of or towards the end of an academic year:
The court held that no right to admission exists for seats falling vacant in the midst of or towards the end of an academic year. Rule 10 is designed to benefit merit candidates on the waiting list, and the duty to fill vacant seats arises at the commencement of the academic year or soon thereafter. The Medical Council of India regulations, which prescribe a three-year PG course including intensive training, further negate the right to admission to a seat falling vacant later in the academic year. The court affirmed that the authorities must act promptly to fill vacancies as they arise.
3. Power of the State Government to transfer a seat in any discipline of the PG course in MD/MS from one medical college to another:
In the case of Dr. Sanjay Kumar Shrivastava, the court found that there was no provision empowering the State Government to transfer a seat from one medical college to another. The High Court's decision that the seat occupied by Dr. Smt. Dhurupkar had been transferred with her was incorrect, as the seat was, in fact, available. However, based on the construction of Rule 10, the appellant could not be granted relief for the vacant seat from the academic year 1986-87.
Conclusion:
The court dismissed the appeals, emphasizing the need for the State Government to take immediate steps to fill vacancies under Rule 10 promptly. The judgment underscores the importance of adhering to the explicit language of the rules and regulations governing admissions to higher courses of study, ensuring that meritorious candidates are not deprived of their rightful opportunities due to administrative inaction or lethargy. The appeals were dismissed with no order as to costs.
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1988 (8) TMI 426
Issues involved:
The issues involved in the judgment are the application of Section 1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, and the interpretation of the exemption period of ten years for new buildings under the Act.
Application of Section 1(3) of the Act:
The appellant-landlord filed a suit for possession based on arrears of rent and termination of tenancy u/s 1(3) of the Act. The respondent-tenant argued that the building was exempted from the Act as it was constructed before the exemption period ended. The Sub-Judge initially dismissed the tenant's application, but the High Court held that as the suit was not decreed within ten years, the Rent Act applied, and the Civil Court lacked jurisdiction. The Supreme Court referred to a similar case from U.P. and held that the tenant must benefit from the Act if it became applicable during the litigation, emphasizing that rights crystallize at the time of suit institution.
Interpretation of Exemption Period:
The Court discussed the purpose of the exemption period for new constructions under the Act, emphasizing the need for a purposive interpretation to achieve the legislative intent of encouraging new building operations. It highlighted that the exemption should continue until the suit is disposed of or adjudicated, even if the ten-year period expires during the litigation. The Court set aside the High Court's decision, restoring the Sub-Judge's order and directing the suit to proceed expeditiously in accordance with the law. The costs of the appeal were to be borne by the suit.
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1988 (8) TMI 425
Issues Involved:
1. Applicability of Tamil Nadu City Tenants' Protection Act, 1922 (TN Act III of 1922)
2. Nature of the Lease: Land or Building with Appurtenant Land
3. Interpretation of Lease Deed Clauses
4. Tenants' Right to Purchase under Section 9 of the Act
Summary:
1. Applicability of Tamil Nadu City Tenants' Protection Act, 1922 (TN Act III of 1922):
The primary issue is whether the appellant company is entitled to protection u/s 9 of the Tamil Nadu City Tenants' Protection Act, 1922. The Act was designed to protect small tenants who constructed buildings on others' lands. The court noted it is doubtful whether affluent companies like the appellant should benefit from this Act but decided to interpret the statute based on its language.
2. Nature of the Lease: Land or Building with Appurtenant Land:
The lease deed dated 13.8.1951 described the demised property as "all that plot of vacant land and the buildings erected thereon." The High Court concluded that the lease was of a building with appurtenant land, not just land. The building occupied about one-eighth of the total area, indicating it was a substantial structure used as a residential building. The court agreed with this finding, emphasizing that the land was incidental to the enjoyment of the building, thus falling within the definition of "building" under the Act.
3. Interpretation of Lease Deed Clauses:
The appellant argued that the lease deed should be treated as creating two separate leases: one for the building and one for the land. This was based on the divisibility of clauses, separate rents, and provisions for erecting additional structures. However, the court concluded that the lease deed was a single, indivisible lease of both the building and the land. The rent was specified as an aggregate amount, and the lease did not envisage separate termination or renewal for parts of the leased premises.
4. Tenants' Right to Purchase under Section 9 of the Act:
The court examined whether the appellant could exercise the right to purchase the land u/s 9 of the Act. It was determined that since the lease was of a building with appurtenant land, the appellant was not entitled to the rights conferred by section 3 or section 9 of the Act. The lease contained usual clauses and covenants expected in a lease under the Transfer of Property Act, and there was no specific clause denying compensation to the lessee for structures, which might have indicated an attempt to circumvent the Act.
Conclusion:
The appeal was dismissed, and the court upheld the High Court's decision that the lease was of a building with appurtenant land, making the appellant ineligible for protection under the Act. The respondents were entitled to their costs.
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1988 (8) TMI 424
Issues involved: Alleged handcuffing of an advocate contrary to law and non-implementation of section 30 of the Advocates Act, 1961.
Handcuffing Issue: The Supreme Court directed the Union of India to frame rules regarding the circumstances in which accused individuals should be handcuffed, in line with a previous judgment. The Court emphasized the need for guidelines on handcuffing and instructed the Union of India to circulate these rules among all State Governments and Union Territories within three months.
Section 30 of Advocates Act: The Court discussed the non-implementation of section 30 of the Advocates Act, 1961, which grants advocates the right to practice throughout the territories covered by the Act. Despite the Act being in force for over 25 years, section 30 had not been brought into effect. The Court highlighted that certain laws still restrict advocates from appearing before specific courts and tribunals, despite the evolving legal landscape favoring advocate representation.
Legal Mandamus: While acknowledging the discretion given to the Central Government by Parliament regarding the enforcement of statutory provisions, the Court cited a previous decision that prevented issuing a mandamus to compel the government to bring a statute into force. However, the Court clarified that it could direct the Central Government to consider activating section 30 of the Advocates Act within a reasonable time frame. The Court stressed the importance of the government exercising its discretion fairly and reasonably, considering the prolonged delay since the Act's enactment.
Conclusion: The Supreme Court issued a writ of mandamus to the Central Government, directing it to evaluate whether section 30 of the Advocates Act should be implemented within six months. The Court emphasized the need for the government to make a decision on activating this provision, given the significant time elapsed since the Act's passage.
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1988 (8) TMI 423
Issues Involved:
1. Validity of High Court's Direction for Jail Trial
2. Public Trial and Open Court
3. Refusal to Call for Statements before Thakkar Commission
4. Evidence Against Each Accused
Summary of Judgment:
Issue 1: Validity of High Court's Direction for Jail Trial
The High Court's power to direct the trial of a case at a place other than the normal seat of the Court of Session was upheld. Section 9(6) of the Code of Criminal Procedure allows the High Court to specify the place or places for the Court of Session to hold its sittings. The High Court's decision to hold the trial in Tihar Jail was justified due to the security concerns and the prevailing situation.
Issue 2: Public Trial and Open Court
The argument that a trial inside the jail premises is not a public trial was rejected. The Court held that trials in jail are not inherently invalid. Section 327(1) of the Code of Criminal Procedure mandates that the place of trial shall be deemed an open court. The trial in Tihar Jail was conducted with sufficient safeguards to ensure it was a public trial. Representatives of the press and public were allowed to attend, subject to security checks.
Issue 3: Refusal to Call for Statements before Thakkar Commission
The Court upheld the refusal to call for statements made before the Thakkar Commission. Section 6 of the Commission of Inquiry Act provides that statements made before the Commission shall not be used against the person in any civil or criminal proceedings except for perjury. The Court affirmed the view that the protection under Section 6 is comprehensive and prevents the use of such statements for any purpose other than prosecuting for perjury.
Issue 4: Evidence Against Each Accused
Balbir Singh (A-2):
The evidence against Balbir Singh was found to be insufficient. The document (Ex. PW 26/B) allegedly recovered from him was deemed unreliable due to inconsistencies in his arrest and the lack of independent witnesses. The Court concluded that the evidence did not establish his involvement in the conspiracy beyond reasonable doubt. His conviction and sentence were set aside, and he was acquitted.
Kehar Singh (A-3):
The evidence against Kehar Singh, including his close association with Beant Singh, secretive conversations, and post-crime conduct, was found to be sufficient to establish his involvement in the conspiracy to murder Mrs. Indira Gandhi. His conviction and death sentence were upheld.
Satwant Singh (A-1):
The evidence, including eye-witness testimonies and ballistic reports, conclusively established Satwant Singh's role in the assassination. His conviction under Section 302 read with Section 120-B and 34 IPC, Section 307 IPC, and Section 27 of the Arms Act was upheld. The death sentence was confirmed.
Conclusion:
- Criminal Appeal No. 180/87 (Kehar Singh): Dismissed, conviction and sentence maintained.
- Criminal Appeal No. 182/87 (Satwant Singh): Dismissed, conviction and sentence maintained.
- Criminal Appeal No. 181/87 (Balbir Singh): Allowed, conviction and sentence set aside, acquitted.
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1988 (8) TMI 422
Issues:
Validity of rule 498-A of Andhra Pradesh Motor Vehicles Rules, 1964 and a notification dated July 8, 1986 requiring the wearing of protective helmets for two-wheeler riders.
Analysis:
The petitioner challenged the validity of rule 498-A and the notification on the grounds of violating constitutional rights under Article 19(1)(d) and Article 21. The High Court dismissed the petition, upholding the validity of the notification and rule 498-A. The High Court relied on medical opinions to refute claims that wearing helmets could cause health issues. The petitioner contended that since section 85-A of the Motor Vehicles Act was not enforced, rule 498-A was illegal. The Supreme Court assumed section 85-A was not enforced and analyzed the legality of rule 498-A.
The Supreme Court examined the rule-making power of the State Government under section 91 of the Act to determine the legality of rule 498-A. It was argued that rule 498-A falls within the power to prevent danger or injury to the public or any person, including two-wheeler drivers. The Court concluded that rule 498-A is valid under the broad scope of the rule-making power, even if not explicitly covered by a specific clause.
The Court considered the petitioner's argument that the helmet requirement infringed on fundamental rights under Article 19(1)(d) and Article 21. It held that rule 498-A aimed to ensure safety and did not unreasonably restrict freedom of movement. The Court found the restriction to be in the public interest and a reasonable limitation under Article 19(5). The petitioner's claim of health issues due to helmet wearing was dismissed based on expert medical opinions accepted by the High Court.
The Supreme Court rejected the petitioner's contentions, upholding the validity of rule 498-A and the notification. It concluded that the requirement for helmets served public safety and did not violate constitutional rights. The special leave petition was dismissed, and no costs were awarded.
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