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2000 (8) TMI 1150
The Supreme Court dismissed the review petitions concerning the dilution of standards in promotion for SC/ST candidates, stating that a subsequent Constitution Bench's view is irrelevant for review. The judgment clarified that dilution was permissible in promotions involving SC/ST candidates only, not in cases where general candidates also competed. The court emphasized that the legality of dilution was not in question, especially after the insertion of Article 16(4-A) by the Constitution (Seventy-seventh Amendment) Act, 1995.
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2000 (8) TMI 1149
Issues: Interpretation of Rule 9A of the Post Office Recurring Deposit Rules, 1981 before and after its amendment, retrospective application of rules, contractual rights of depositors.
Summary:
1. The petitioners sought premature closure of their recurring deposit accounts based on the unamended Rule 9A, which allowed closure after one year with reduced interest. The respondents argued that the amended rule, which disallowed premature closure, applied to existing accounts, citing a communication from the Ministry of Finance and an agreement by the petitioners to abide by government rules.
2. The single Judge found that the Government lacked power to make rules retrospectively under Section 15 of the Government Savings Bank Act. The petitioners' agreement to follow rules did not make the rules retrospective. Thus, the petitioners were granted the benefit of premature closure under the unamended rules applicable at the time of deposit.
3. The appellants contended that depositors must abide by amended rules, even if the account was opened under different rules, as per the contractual agreement. However, the Court held that the depositors were informed of the original terms and should not be bound by subsequent amendments unilaterally.
4. The Court emphasized that the source of rule-making power was Section 15 of the Act, which did not allow retrospective rules. The contractual nature of the relationship required fairness and reasonableness in rule changes, as established in previous judicial decisions.
5. The Court dismissed the appeal, stating that the amendment to Rule 9A was not retrospective, and it was improper to assume that existing accounts would be governed by the amended rule. The presumption was that amendments, except in procedural matters, operated prospectively.
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2000 (8) TMI 1148
Issues involved: Challenge to a notification issued by the Central Government regarding anti-dumping duty, interpretation of rules u/s Customs Tariff Act, 1975, reliance on Tribunal's order, determination of authority to impose anti-dumping duty.
Summary:
1. The petitioner challenged a notification issued by the Central Government regarding anti-dumping duty, citing rules u/s Customs Tariff Act, 1975. The process for investigation, determination of normal value, export price, margin of dumping, and injury was outlined. The Central Government was authorized to impose anti-dumping duty not exceeding the margin of dumping as determined.
2. Appeals were made against final findings before the Central Excise Gold Appellate Tribunal (CEGAT) by Pig Iron Manufacturers Association, leading to a decision by the Apex Court. The Apex Court clarified that the order of the Designated Authority is recommendatory, and the appeal lies against the determination to be made by the Central Government. Subsequently, the Central Government issued a new notification after the Apex Court's decision.
3. The Court directed the respondents to file a reply within three weeks, but no reply was filed. The Union of India argued that the notification was issued based on the CEGAT's order under section 9(C) of the Act. However, the Court noted that the order of the designated authority is recommendatory, and no determination was made by the Central Government in this case. The reliance on the Tribunal's judgment without confirmation was deemed inappropriate.
4. The petitioner's advocate argued that the CEGAT's order should not be considered recommendatory, especially since the Apex Court had ruled the appeal was not competent before the CEGAT.
5. Consequently, the Court stayed the subsequent notification and directed the petitioner to make payment under protest as per the earlier notification. A hearing was scheduled for September 12, 2000, at the request of the Union of India's counsel.
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2000 (8) TMI 1147
The Supreme Court allowed an amendment in the case. The court noted that an appeal against the determination and customs notification was filed before Cegat, making it maintainable. Notice was issued for the case to return in four weeks.
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2000 (8) TMI 1146
Legal Judgment: Supreme Court of India dismissed the appeal on merits after condoning the delay. (Citation: 2000 (8) TMI 1146 - SC)
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2000 (8) TMI 1145
Issues Involved:
1. Jurisdiction of the High Court to entertain petitions under Article 226 during the electoral process.
2. Validity and impact of the Election Commission's notification under Rule 59A of the Conduct of Elections Rules, 1961.
3. Allegations of booth capturing and the necessity of counting votes polling station-wise.
Summary:
1. Jurisdiction of the High Court to entertain petitions under Article 226 during the electoral process:
The Supreme Court examined whether the High Court had the jurisdiction to entertain writ petitions and issue interim orders during the electoral process. Article 329(b) of the Constitution bars interference by courts in electoral matters, stating that no election shall be called in question except by an election petition presented after the election. The term 'election' includes the entire process from the notification to the declaration of results. The Court reiterated that judicial intervention should be postponed until after the completion of election proceedings to avoid interrupting, obstructing, or protracting the election process. However, the Court acknowledged that judicial review is permissible on grounds of mala fide or arbitrary exercise of power by the Election Commission.
2. Validity and impact of the Election Commission's notification under Rule 59A of the Conduct of Elections Rules, 1961:
The Election Commission of India issued a notification under Rule 59A, directing the mixing of ballot papers before counting in certain constituencies in Kerala, citing apprehensions of intimidation and victimisation of electors. The High Court stayed this notification, directing that votes be counted polling station-wise. The Supreme Court found that the Election Commission had the power to issue such a notification and that the High Court's order was based on a lack of information about the notification's publication in the official gazette. The Supreme Court held that the High Court should not have intervened amidst the election process, as the petitioners did not present a prima facie case of mala fides against the Election Commission.
3. Allegations of booth capturing and the necessity of counting votes polling station-wise:
The respondents alleged large-scale booth capturing and irregularities in the polling process, arguing that counting votes polling station-wise would preserve evidence for potential election petitions. The Supreme Court noted that the Election Commission's decision to mix ballot papers was made in the interest of free and fair elections and the safety of electors. The Court suggested that any grievances regarding the counting process could be addressed in an election petition after the results were declared, and that the Designated Election Judge could order a re-count if necessary.
Conclusion:
The Supreme Court allowed the appeals, setting aside the High Court's interim orders. The Court emphasized that judicial intervention during the electoral process should be limited to avoid disrupting the election proceedings. The judgment clarified that the Election Commission's actions are subject to judicial review on grounds of mala fide or arbitrary exercise of power, but such review should not interrupt the election process. The Court's observations were made without prejudice to any issues that may arise in future election petitions.
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2000 (8) TMI 1144
Issues involved:
- Whether the trial Court erred in rejecting the application for framing a preliminary issue regarding the limitation of the suit.
- Interpretation of the provisions of the Code of Civil Procedure, 1908, specifically Section 9 and Section 9-A.
- Determining if the question of limitation affects the jurisdiction of the Court.
- Analyzing conflicting judgments regarding the necessity of framing preliminary issues in cases involving mixed questions of law and fact.
Analysis:
1. The revision application challenged the trial Court's order rejecting the application to frame a preliminary issue on the suit's limitation. The applicant argued that the question of limitation is crucial to the Court's jurisdiction and should be decided before any further proceedings. The applicant relied on a Division Bench decision emphasizing the need to frame preliminary issues for efficient adjudication.
2. The respondent contended that the question of limitation does not affect the Court's jurisdiction, citing relevant Supreme Court decisions. The respondent argued that jurisdiction should be narrowly construed to pecuniary, territorial, or legal restrictions. The Court then examined the provisions of Section 9 and Section 9-A of the Code of Civil Procedure, 1908.
3. Section 9 of the CPC grants Courts jurisdiction over civil suits unless expressly or impliedly barred. The Maharashtra amendment introduced Section 9-A, requiring the Court to decide jurisdictional objections as preliminary issues. The applicant argued that the question of limitation falls under the Court's cognizance being barred, impacting jurisdiction.
4. The Court analyzed conflicting judgments, noting the Division Bench's view that jurisdictional issues, even if mixed questions of law and fact, must be decided as preliminary issues. The Court emphasized the need to avoid multiple proceedings and expedite cases by resolving jurisdictional issues promptly.
5. The Court concluded that the question of limitation directly affects the Court's jurisdiction, as a suit barred by limitation prevents the Court from deciding on the merits. Following the Division Bench's interpretation, the Court set aside the trial Court's order, directing the framing of a preliminary issue on the suit's limitation for expeditious resolution.
This detailed analysis highlights the key arguments, legal provisions, and conflicting judgments involved in the judgment, providing a comprehensive understanding of the case's intricacies and the Court's decision.
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2000 (8) TMI 1143
Determination of inter-se seniority of a group of officers - Promotees and direct recruitments - Delhi Higher Judicial Service - Principle of quota and rota - temporary post or a permanent post - interpretation of specific recruitment rules, particularly Rules 7, 8, 16, and 17 - Terms ad hoc, stop gap and fortuitous - HELD THAT:- If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as ad hoc or stop-gap. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as fortuitous in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a stop-gap arrangement and appointment in the post as ad hoc appointment.
It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers in the cadre.
In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be “stop-gap or fortuitous or purely ad hoc”.
Thus, the reasoning and basis on which, the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be fortuitous/ad hoc/stop-gap are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous.
Therefore, we quash the seniority list both provisional and final, so far as, it relates to the appointees either by direct recruitment or by promotion in the Delhi Higher Judicial Service, prior to the amendment of the Recruitment Rules in the year 1987, and their inter-se seniority must be re- determined on the basis of continuous length of service in the Cadre, as indicated in Singlas case and explained by us in this judgment. Since the future of these officers to a great extent depends upon seniority and many of these officers may be on the verge of superannuation, the High Court would do well in finalising the seniority within a period of six weeks from the date of receipt of this judgment.
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2000 (8) TMI 1142
Issues:
1. Termination of distributorship contract based on storage of spurious gas cylinders.
2. Dismissal of writ petition due to arbitration clause in the contract.
3. Appointment of an arbitrator to resolve issues related to termination, restoration of distributorship, damages, and interest.
4. Arbitrator's award directing restoration of distributorship challenged in court.
5. Decision on whether the arbitrator had jurisdiction to direct restoration of distributorship.
Analysis:
1. The appellant's distributorship contract was terminated by the respondent due to alleged storage of spurious gas cylinders, as per the termination clause in the contract. This led to a legal dispute regarding the validity of the termination.
2. The appellant's writ petition seeking restoration of distributorship was dismissed by the High Court due to the presence of an arbitration clause in the contract. The Single Judge suggested that the appellant could raise issues before the Arbitrator regarding the termination being arbitrary and lacking sufficient justification.
3. Subsequently, the appellant invoked the arbitration clause and requested the Director (Marketing) of the respondent to act as an arbitrator or appoint one to address issues related to termination, restoration of distributorship, damages, and interest. The Director declined to act as an arbitrator but appointed one to adjudicate the disputes.
4. The Arbitrator made an award directing the restoration of distributorship to the appellant, among other monetary benefits. However, the respondent challenged this award under Section 30 of the Arbitration Act before a Single Judge of the High Court.
5. The Division Bench of the High Court upheld the challenge, stating that restoration of distributorship was not arbitrable under the contract. The Supreme Court agreed with this decision, emphasizing that the Arbitrator's jurisdiction was limited to awarding damages for wrongful termination, not directing restoration of distributorship.
6. The Supreme Court rejected the appellant's argument that the Arbitrator had the authority to order restoration based on the reference made, clarifying that the reference only contemplated consequential damages for wrongful termination.
7. Additionally, the Court dismissed the contention that invoking the arbitration clause was based on the High Court's order, emphasizing that the Arbitrator's jurisdiction was not expanded by any observations in the High Court's judgment.
8. The Court directed the appellant to seek continuation of distributorship from the respondent, which would be considered on its merits. Finally, the appeals were dismissed, upholding the decision to delete the relief for restoration of distributorship and maintaining the other awarded reliefs.
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2000 (8) TMI 1141
Issues:
1. Admissibility of parol evidence to modify terms of a registered settlement deed.
Analysis:
The case involved a dispute over a property settlement deed dated 26.3.1915, where the plaintiff claimed a share under the registered settlement deed, and the defendant-appellant claimed that subsequent oral arrangements modified the terms of the settlement. The trial court allowed oral evidence based on proviso (4) to Section 92 of the Evidence Act, permitting proof of subsequent oral agreements to rescind or modify a contract or disposition of property, except where such document is required to be in writing or is registered. The High Court, however, held that oral evidence cannot be admitted to vary the terms of a registered document. The Division Bench upheld this decision, leading to the current appeal.
The appellant argued that the subsequent oral arrangement did not vary the terms of the settlement deed but only worked out existing rights. The key legal question was whether parol evidence could substantiate oral arrangements rescinding or modifying a written and registered document like the settlement deed. Section 92 of the Evidence Act prohibits oral evidence to contradict, vary, or subtract from the terms of a written document, subject to exceptions in provisos. Proviso (4) allows proof of subsequent oral agreements in certain cases, excluding those where the document must be in writing or is registered.
The Supreme Court analyzed the legal position, emphasizing that if a contract can be oral but is reduced to writing, parties can modify it orally with admissible parol evidence. However, when a document must be in writing by law, any modification or substitution of its terms must also be in writing. The Court noted that the settlement deed in question conferred property rights and was required to be in writing for efficacy. Therefore, the defendant could not use parol evidence to alter the terms of the registered settlement deed.
The appellant's argument that the document was a Will, not a settlement deed, was rejected as both parties and the trial court agreed on its nature. Consequently, the Supreme Court dismissed the appeal, finding no merit in the appellant's contentions. The judgment affirmed that parol evidence cannot be used to modify the terms of a registered settlement deed, emphasizing the importance of written documents in property transactions and the legal restrictions on altering such documents with oral agreements.
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2000 (8) TMI 1140
Issues Involved:
1. Validity of the notice of termination of tenancy.
2. Applicability of the Delhi Rent Control Act.
3. Existence of a monthly tenancy after the expiry of the fixed-term lease.
4. Maintainability of the suit filed by the plaintiffs alone.
5. Impact of a pending partition suit on the current suit for possession.
Issue-Wise Detailed Analysis:
1. Validity of the Notice of Termination of Tenancy:
The plaintiffs issued a notice of termination dated 10.6.1991, which the defendant contested as invalid. The court found that the tenancy was for a fixed period of ten years, expiring on 31.5.1989, and thus no further notice under Section 106 of the Transfer of Property Act was required. The notice dated 10.6.1991 was issued as an abundant precaution and did not imply the continuation of tenancy.
2. Applicability of the Delhi Rent Control Act:
The court noted that the initial agreed rent was Rs. 5,500/- per month, which increased to Rs. 6,600/- per month. Since the rent exceeded Rs. 3,500/-, the premises were excluded from the purview of the Delhi Rent Control Act, 1958, as amended in 1988. The court referenced the case of D.C. Bhatia Vs. Union of India, which held that the amended Act applied to tenancies created before the amendment where the monthly rent exceeded Rs. 3,500/-.
3. Existence of a Monthly Tenancy After Expiry of Fixed-Term Lease:
The defendant claimed that a monthly tenancy was created after the expiry of the ten-year lease, as rent was paid and accepted monthly by cheques. The court found no evidence that the plaintiffs accepted these cheques as rent after the expiry of the lease. The cheques were not encashed, and the plaintiffs had explicitly indicated through notices that the tenancy would not be continued. Therefore, no monthly tenancy was established.
4. Maintainability of the Suit Filed by the Plaintiffs Alone:
The defendant argued that the suit was not maintainable as it was filed by the plaintiffs alone without the other co-owners. The court held that all co-owners were impleaded in the suit, either as plaintiffs or as defendants, and thus an effective decree for possession could be passed. The other co-owners had not objected to the suit, and the suit was for the benefit of all co-owners.
5. Impact of a Pending Partition Suit on the Current Suit for Possession:
The defendant filed an application under Order 6 Rule 17 CPC, claiming that a pending partition suit would affect the current suit for possession. The court dismissed this application, stating that a suit for partition does not effect partition until it is completed by metes and bounds. Until then, all co-owners have rights over the entire property. The proposed amendment was based on conjecture and did not improve the defendant's case.
Conclusion:
The court found no triable issues or bona fide defenses raised by the defendant. The lease deed, rate of rent, and termination of tenancy by efflux of time were either admitted or undisputed. Consequently, the court allowed the plaintiffs' application under Order 12 Rule 6 CPC and passed a decree for possession of the tenancy premises against the defendant, granting one month for vacating the premises. The application was disposed of with costs awarded to the plaintiffs.
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2000 (8) TMI 1139
Issues Involved:
1. Validity of Karnataka Ordinance No. 4 of 2000.
2. Direction to the State Government to bring Karnataka Act 1 of 2000 into effect.
3. Forcible dispossession by Bangalore Development Authority (BDA).
Detailed Analysis:
Point (I) - Validity of Ordinance 4 of 2000:
16. The Bangalore Development Authority Act, 1976 was amended by the Bangalore Development (Amendment) Act, 1999 (Karnataka Act 1 of 2000), inserting Section 38-C(2), which provided for the allotment of land by sale to unauthorized occupants. However, the Amendment Act was not brought into force as the State Government did not issue any notification appointing the date for its commencement.
17. Numerous writ petitions were filed seeking a direction to the State Government to bring the Amendment Act into force. The Court granted an interim stay preventing BDA from dispossessing the petitioners or demolishing structures on the disputed land.
18. On 22-6-2000, the Governor of Karnataka promulgated the Bangalore Development Authority (Amendment) (Repealing) Ordinance, 2000, repealing the Amendment Act. Petitioners challenged the constitutional validity of the Ordinance on several grounds.
19-30. The petitioners argued that the Ordinance was unconstitutional as it was promulgated without instructions from the President, which they claimed was required under Article 213(1) of the Constitution. However, the Court found that the Ordinance did not contain any provisions repugnant to a law made by the Parliament or an existing law, and therefore, instructions from the President were not necessary.
31-35. The petitioners contended that only the Parliament could repeal a State law that had received the President's assent. The Court rejected this argument, stating that the power to legislate includes the power to repeal, and the State Legislature could repeal its laws.
36-40. The petitioners argued that the Ordinance violated the doctrines of promissory estoppel and legitimate expectation. The Court dismissed these arguments, noting that these doctrines could not be used to challenge legislation.
41-44. The petitioners claimed that the Ordinance was an emergency measure and should only be used to maintain the status quo. The Court held that an Ordinance is a valid law with the same force as an Act of the Legislature and is not invalid merely because it is temporary.
45-47. The petitioners argued that the Ordinance interfered with the adjudicatory process regarding Section 38-C(2). The Court rejected this argument, stating that the Legislature or Executive could legislate on a subject even if it was under litigation.
48-52. The petitioners alleged mala fides and non-application of mind in promulgating the Ordinance. The Court found these arguments untenable, stating that the necessity of promulgating an Ordinance is within the Governor's satisfaction and not subject to judicial scrutiny.
53. The Court upheld the validity of Karnataka Ordinance 4 of 2000.
Point (II) - Prayer relating to Section 38-C(2):
54-57. As the Court upheld the validity of the Repealing Ordinance, Section 38-C(2) no longer existed in the BDA Act. Therefore, the petitioners were not entitled to any relief based on Section 38-C(2), and the Court would not issue a mandamus to the Government to bring the section into force.
Point (III) - Forcible Dispossession:
58-61. The Court considered whether BDA could forcibly dispossess unauthorized occupants. BDA contended it had the right to protect its possession and forcibly evict encroachers.
62-66. The Court found that BDA did not have the authority to forcibly dispossess unauthorized occupants under the BDA Act, the Karnataka Municipal Corporations Act, the Regularisation Act, or the Planning Act. BDA could only dispossess unauthorized occupants by following due process of law.
67-71. The Court reviewed the principles regarding the rights of true owners and trespassers, concluding that a true owner cannot forcibly dispossess an unauthorized occupant in settled possession.
72-74. The Court noted that BDA, as a statutory authority owning large tracts of land, could not be expected to take immediate action against unauthorized constructions. However, BDA could demolish unauthorized structures and evict unauthorized occupants if they were not in settled possession.
75-76. The Court distinguished between different types of cases and their rights and remedies, noting that petitioners claiming settled possession for more than 12 years could approach the Civil Court for appropriate relief.
77-84. The Court found that petitioners claiming possession of vacant sites or sites with only foundations or compound walls were not entitled to relief. Petitioners claiming settled possession with structures could approach the Civil Court for relief.
85-87. The Court suggested that BDA formulate a scheme for the sale of sites where possession was more than 12 years but disputed.
88-89. The Court acknowledged the genuine grievance of petitioners misled into buying plots in acquired land and suggested a centralized system to record acquisition notifications.
90. The Court dismissed the petitions, allowing petitioners to approach the Civil Court for relief and permitting BDA to take action for eviction or demolition as appropriate.
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2000 (8) TMI 1138
Issues:
1. Whether the petitioner should be allowed to file a rejoinder in response to the written statement filed by the respondent.
2. The criteria for granting leave to file a rejoinder under Order 8 Rule 9 of the Civil Procedure Code (C.P.C.).
3. The extent to which a plaintiff can introduce new pleas in a rejoinder.
Analysis:
Issue 1:
The case involved a dispute regarding the petitioner's right to file a rejoinder to the respondent's written statement. The respondent objected to the petitioner's right to file a rejoinder, which led to a detailed hearing on the matter. The court considered the seriousness of the objection raised by the respondent and allowed both parties to argue on merit.
Issue 2:
The central legal provision under consideration was Order 8 Rule 9 C.P.C., which governs subsequent pleadings after the written statement of the defendant. The respondent argued that the provision does not allow the plaintiff to file a rejoinder in a routine manner. However, the petitioner contended that a rejoinder should be permitted if new facts are introduced by the defendant in the written statement.
Issue 3:
Various legal precedents were cited to determine the extent to which a plaintiff can introduce new pleas in a rejoinder. The court referred to cases such as Shakoor vs. Jaipur Development Authority, Veerasekhara Varamarayar vs. Amirthavalliammal, and others to establish that a plaintiff cannot be allowed to introduce entirely new pleas or alter the original cause of action in a rejoinder. The court emphasized that a rejoinder should only address additional facts brought by the defendant in the written statement.
In the specific context of the case, the court examined the contents of the written statement and the petitioner's proposed rejoinder. The court allowed the petitioner to file a rejoinder only to specific paragraphs of the written statement where new facts were introduced. The court rejected the petitioner's request for a rejoinder on other grounds, limiting the scope of the rejoinder to address the new factual allegations raised by the respondent.
The judgment concluded by ordering the case to be listed for the filing of Admission/Denial of documents on a specified date, based on the limited scope of the permitted rejoinder.
This detailed analysis of the judgment highlights the legal principles applied by the court in resolving the issues raised in the case concerning the filing of a rejoinder in response to the written statement.
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2000 (8) TMI 1137
Issues Involved:
1. Legality and propriety of the conviction under Section 66(1)(b) of the Bombay Prohibition Act, 1949.
2. Compliance with procedural rules for collecting and analyzing blood samples.
3. Admissibility and credibility of the Chemical Analyzer's report.
4. Applicability of mandatory versus directory provisions of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959.
Detailed Analysis:
1. Legality and Propriety of the Conviction:
The original accused filed a Criminal Revision Application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973, challenging the judgment dated 24th February 1989 by the Additional Sessions Judge, Jamnagar, which upheld the conviction and sentence passed by the Judicial Magistrate, First Class, Jamnagar. The accused was convicted under Section 255(2) of Cr.P.C. for an offense punishable under Section 66(1)(b) of the Bombay Prohibition Act, 1949, and sentenced to four months of simple imprisonment and a fine of Rs. 250, with an additional two months of simple imprisonment in default of payment.
2. Compliance with Procedural Rules:
The defense argued that the report of the Chemical Analyzer could only be taken into consideration if issued under Section 129B of the Act, and that the Medical Officer must follow the procedure prescribed under Section 129A(2) of the Act. The defense contended that the rules for collecting blood samples, as outlined in the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, were mandatory and not followed correctly. Specifically, the defense pointed out that the Medical Officer did not clean the skin surface with 1% aqueous solution of mercurochrome or gentian violet, did not add anticoagulant and preservative himself, and did not use a sterilized syringe.
3. Admissibility and Credibility of the Chemical Analyzer's Report:
The court examined the evidence and found that the Medical Officer had prepared the phial with anticoagulant and preservative and had cleaned the skin surface with a hot water pad, which was deemed sufficient. The court held that every part of Rule 4 was not mandatory and that substantial compliance was sufficient. The court also noted that the Chemical Examiner's report indicated that the phial was properly sealed and matched the forwarding letter, thus ensuring the integrity of the sample.
4. Applicability of Mandatory versus Directory Provisions:
The court referred to several precedents, including the Full Bench decision in Chamanbhai Gangaram Vankar v. State of Gujarat, which held that not all provisions of Rule 4 were mandatory. The court emphasized that literal compliance with every part of the rule was not necessary, and substantial compliance was adequate. The court found that the procedural requirements for collecting and analyzing the blood sample were substantially complied with, and the minor deviations pointed out by the defense did not invalidate the Chemical Analyzer's report.
Conclusion:
The court concluded that both the trial court and the appellate court had correctly convicted the accused under Section 66(1)(b) of the Bombay Prohibition Act, 1949. The court dismissed the Criminal Revision Application, finding it devoid of merits, and directed the accused to surrender before the Judicial Magistrate, First Class, Jamnagar, to serve the sentence. The ad-interim stay granted was vacated, and the office was directed to send the writ of the order to the trial court for execution.
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2000 (8) TMI 1136
Issues:
1. Duty demand and penalty imposed by the Commissioner of Central Excise on M/s. Mac Designers and M/s. Mac Venetian.
2. Classification of vertical blinds under Chapters 76 and 66 of the CETA.
3. Exemption claimed under Notification No. 65/87.
4. Verification of manufacturing process with or without the aid of power.
5. Sales tax returns as the basis for confirming duty demand.
6. Lack of independent inquiry by the Commissioner regarding actual production and sale of furniture.
7. Grounds for setting aside the impugned order.
Analysis:
1. The appeal was filed against the duty demand and penalty imposed by the Commissioner of Central Excise on M/s. Mac Designers and M/s. Mac Venetian. The Commissioner confirmed duty demand and penalties on both parties through a common order. The appellants contested the correctness of the Show Cause Notices, denying the sale of furniture and liability to pay duty. The Commissioner's order was challenged through this appeal.
2. M/s. Mac Venetians were engaged in manufacturing venetian blinds and vertical blinds classified under Chapters 76 and 66 of the CETA. They claimed exemption under Notification No. 65/87 for vertical blinds manufactured without the aid of power. However, during a visit to their premises, it was found that vertical blinds were being manufactured with the aid of power, leading to duty demand.
3. The Commissioner based the duty demand on figures from sales tax returns filed by the appellants. The appellants argued that the duty confirmation solely based on these figures was incorrect, as no independent inquiry was conducted regarding actual production and sale of furniture. The appellants were engaged in various activities, not exclusively furniture manufacturing, which the Commissioner failed to consider.
4. The Tribunal noted that the duty demand and penalty imposed on M/s. Mac Venetian had already been set aside by another Bench for fresh decision. Regarding the lack of independent inquiry, the Tribunal agreed with the appellants. The Commissioner did not investigate the actual manufacture and clearances of furniture, failing to consider evidence such as raw material purchase, electricity consumption, and labor employed during the disputed period.
5. Consequently, the Tribunal set aside the impugned order of the Commissioner and accepted the appeal by way of remand. The case was sent back to the adjudicating authority for a fresh decision after affording full opportunity to the appellants to present their case. The Commissioner's order was deemed unsustainable due to the lack of an independent inquiry into the actual production and sale of furniture by the appellants.
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2000 (8) TMI 1135
Issues Involved:
1. Debarring the appellant company from accessing the capital market for 5 years.
2. Allegations of fraudulent and unfair trade practices.
3. Inquiry and investigation procedures.
4. Suspension of trading in the appellant's shares.
5. Alleged bias and procedural delays by the respondent.
6. Applicability and scope of regulation 11 of SEBI Regulations.
Issue-wise Detailed Analysis:
1. Debarring the Appellant Company from Accessing the Capital Market for 5 Years:
The appellant company was debarred from accessing the capital market for 5 years by the respondent under regulation 11 of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Markets) Regulations, 1995. The respondent's decision was based on findings that the appellant had created artificial scarcity of shares, resulting in market illiquidity and price volatility.
2. Allegations of Fraudulent and Unfair Trade Practices:
The respondent alleged that the appellant indulged in fraudulent and unfair trade practices by withholding 7,24,800 shares from the market, creating artificial scarcity and resulting in price volatility. The appellant denied these allegations, stating that the shares were dispatched properly, and any discrepancies were due to delays and actions by third parties, not the appellant.
3. Inquiry and Investigation Procedures:
The appellant argued that the inquiry was not conducted fairly and violated principles of natural justice. The appellant highlighted procedural delays, lack of timely communication, and the respondent's evasive behavior. The respondent countered by stating that the investigation was thorough and aimed at protecting investor interests.
4. Suspension of Trading in the Appellant's Shares:
Trading in the appellant's shares was suspended on 16-5-1996 due to unusual price movements and high intraday volatility. The appellant contended that the suspension was unjust and prolonged, causing harm to investors. The respondent justified the suspension as a measure to prevent further market volatility during the investigation.
5. Alleged Bias and Procedural Delays by the Respondent:
The appellant accused the respondent of bias and procedural delays, including a significant time gap between the hearing and the issuance of the order. The appellant cited instances of non-responsiveness and delays in finalizing allotments and approvals. The respondent denied these allegations, asserting that all actions were taken in the public interest.
6. Applicability and Scope of Regulation 11 of SEBI Regulations:
The appellant challenged the applicability of regulation 11 for debarring them from the capital market, arguing that the regulation did not empower the respondent to issue such an order. The appellant also argued that the delay in issuing the order itself was grounds for setting it aside. The respondent maintained that the order was within the scope of regulation 11 and necessary to maintain market integrity.
Conclusion:
The tribunal weighed the contentions and found that the impugned order lacked justification. It noted that the evidence did not conclusively prove the appellant's involvement in creating market illiquidity and price volatility. The tribunal emphasized the distinction between the company and its promoters, stating that penalties applicable to promoters could not be imposed on the company. Consequently, the appeal was allowed, and the impugned order was set aside.
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2000 (8) TMI 1134
... ...
... ... ..... atra, JJ. ORDER Appeal dismissed.
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2000 (8) TMI 1133
Issues:
1. Seizure of vehicles and forest produce without permit under Karnataka Forest Act, 1963.
2. Release of vehicles under interim custody with conditions.
3. Petition under Section 482 of the Code of Criminal Procedure for quashing order and unconditional release of vehicle.
4. Interpretation of the definition of forest produce under Section 2(7) of the Act.
5. Provisions for control of timber and other forest produce in transit under Chapter VI of the Act.
6. Power of Authorised Officer to seize and release property under Sections 62 and 71A.
7. Appeal process against orders passed under Section 71A or Section 71C.
8. Compliance with the Act and the importance of strict adherence to achieve the Act's objectives.
9. Consideration of liberal approach in releasing seized property and vehicles.
10. Impact of releasing vehicles used in forest offences on the environment and the need for stringent measures.
Analysis:
1. The judgment involves the seizure of vehicles and forest produce without a permit under the Karnataka Forest Act, 1963. The vehicles, a jeep, and a lorry were seized for transporting Kiralbhogi logs without authorization, leading to legal proceedings under the Act.
2. The lorry owner's application for release was initially rejected, but the lorry was later released to its registered owner on interim custody. The respondent then sought the release of the jeep under certain conditions, including providing a bank guarantee and restrictions on altering the vehicle's status until the case's disposal.
3. A petition under Section 482 of the Code of Criminal Procedure was filed in the High Court to quash the order and seek the unconditional release of the vehicle. However, the High Court modified the conditions, requiring only two solvent sureties instead of a bank guarantee, leading to an appeal by the State of Karnataka.
4. The judgment delves into the definition of forest produce under Section 2(7) of the Act, encompassing various natural products found in forests and the importance of preserving and protecting them.
5. Chapter VI of the Act deals with the control of timber and forest produce in transit, empowering the Authorised Officer to seize and release such property based on specified conditions and procedures.
6. The Authorised Officer's authority to seize and release property under Sections 62 and 71A is highlighted, emphasizing the need for valid justifications before releasing seized forest produce or property involved in forest offences.
7. The appeal process against orders passed under Section 71A or Section 71C allows for judicial review by the Sessions Judge, ensuring proper scrutiny of decisions related to confiscation and release of seized property.
8. The judgment underscores the significance of strict compliance with the Act to achieve its objectives of forest preservation and protection, emphasizing the need for adherence to prevent the misuse of forest resources.
9. The discussion on a liberal approach in releasing seized property raises concerns about potential repercussions, as leniency may encourage repeat offences and harm the environment, necessitating stringent measures to deter forest offenders.
10. The judgment concludes by setting aside the High Court's order, emphasizing the importance of safeguarding forests and their produce, and discouraging easy release of vehicles involved in forest offences to protect the environment and uphold the Act's purpose.
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2000 (8) TMI 1132
Issues:
- Admissibility of Exhibit B-1 in evidence under Section 68 of the Indian Evidence Act.
Analysis:
1. The appellants filed a suit for partition, claiming a share in the property based on a custom in the Roman Catholic Christian community. The trial court dismissed the suit, stating the custom was not proven. The Appellate Court remanded the case for fresh determination, leading to the trial court decreeing the suit based on the alleged custom and disbelieving the execution of Exhibit B-1 and Exhibit B-2.
2. The High Court, however, held that the issue of custom was irrelevant as per the Indian Succession Act, but focused on the execution of Exhibit B-1. The High Court found that since there was no specific denial of Exhibit B-1 by the plaintiff, the proviso to Section 68 of the Evidence Act applied, allowing the document to be admitted as evidence.
3. The High Court's finding was challenged, arguing that there was a clear denial of the execution of Exhibit B-1 in the pleadings. The judgment highlighted that the denial was evident in the pleadings, stating that the defendants forged the signature of the father on the document. This strong denial meant that the proviso to Section 68 should not apply.
4. Section 68 of the Indian Evidence Act mandates the production of at least one attesting witness for documents that require attestation. The proviso states that if the execution of a registered document is not specifically denied, the obligation to produce an attesting witness is withdrawn. In this case, the denial of Exhibit B-1's execution by the plaintiff meant the proviso did not apply.
5. The Supreme Court concluded that since there was a clear denial of the execution of Exhibit B-1 and no attesting witnesses were produced, the document could not be tendered as evidence. Consequently, the High Court's decision was set aside, and the appellant's claim to a share in the property succeeded. The appeal was partly allowed, with costs imposed on the parties.
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2000 (8) TMI 1131
Issues Involved:
1. Whether the time to frame the Scheme for sale of attached shares belonging to the notified parties has arrived.
2. Challenge to the validity of the Scheme.
3. Implementation of the Scheme.
Detailed Analysis:
A. Whether the time to frame the Scheme for sale of attached shares belonging to the notified parties has arrived:
The notified parties objected to the framing of the Scheme on the ground that the sale of shares cannot be effected until the date of distribution arises. They argued that the sale of attached assets is inextricably linked to the distribution of assets in the order of priority envisaged under section 11(2) of the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992. They contended that sale and distribution are not separate events and that the sale of assets cannot take place on a particular day and distribution after five years. It was argued that the distribution was dependent upon the determination of liability of the notified parties under section 9A of the Act. They further contended that the tax liabilities should be final and binding, and that pending appeals against assessments meant that the liabilities were not crystallized. The notified parties also raised the issue of nexus, arguing that the attached assets should not be sold until it is determined whether they have any nexus with illegal transactions in securities.
The Court found no merit in these arguments, emphasizing the distinction between sale and distribution. Section 11(1) deals with the sale of attached assets, while section 11(2) deals with the distribution of assets. The Court held that the sale of assets can proceed independently of the distribution process. The Court also noted that the notified parties had not produced relevant documents or statements of assets and liabilities, delaying the process. The Court concluded that the time to frame the Scheme for the sale of attached shares had indeed arrived, as the liabilities of the notified parties exceeded the attached assets.
B. Challenge to the validity of the Scheme:
The Scheme was framed under section 11(1) of the Act and was forwarded to the Union of India for approval, following the Supreme Court's directions. The Scheme provides for the constitution of a Disposal Committee to assist the Custodian in selling the attached shares. The Committee includes the Custodian, Director General (Investigation), Managing Director of UTI Securities, Managing Director of ICICI Brokerage Services Limited, and the OSD in the branch office of the Custodian at Mumbai.
Objections to the Scheme were raised on various grounds, including the composition of the Disposal Committee, the priority given to offers from public sector banks and financial institutions, and the potential conflict of interest with institutional brokers on the Committee. The notified parties argued that the Court should retain control over the sale of shares and that the Scheme should not apply uniformly to all notified parties.
The Court found no merit in the objections to the constitution of the Disposal Committee, noting that UTI Securities and ICICI Brokerage Services Limited were distinct from their parent institutions and not involved in the scam. The Court emphasized the need for institutional brokers due to the large number of shares involved. However, the Court agreed that the sale of bulk shares and controlling blocks of shares should come before the Court to ensure the best possible price and avoid destabilization of companies. The Court approved the Scheme subject to certain norms for the sale of bulk shares and controlling blocks of shares.
C. Implementation of the Scheme:
The Court outlined the procedure for the implementation of the Scheme, including the registration and dematerialization of shares. The Custodian was directed to prepare a panel of agencies for this purpose and to start the process of registration and dematerialization. The Court approved the sale of all registered shares in possession of the Custodian, except for shares of Apollo Tyres, which were pending in the Supreme Court.
The Court categorized the shares into three parts: routine shares, bulk shares, and controlling blocks of shares. Routine shares could be disposed of by the Disposal Committee, while the sale of bulk shares and controlling blocks of shares would come before the Court. The Court laid down specific norms for the preparation and sale of bulk shares and controlling blocks of shares to ensure transparency and the best possible price.
Conclusion:
The Court ordered the sale of all registered shares except Apollo Tyres, approved the Scheme subject to the outlined norms, and directed the Custodian to start the process of registration and dematerialization. The Court retained control over the sale of bulk shares and controlling blocks of shares to ensure the best possible price and avoid destabilization of companies. The Scheme was to be implemented in phases, with the Court reserving the right to make further additions based on the experience gained from the sale of registered shares.
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