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1967 (9) TMI 157
Issues:
- Timeliness of appeal presentation and extension of time for court-fee payment
Analysis:
1. The main issue in this case was whether the appeal was presented within the prescribed time limit and if the delay in court-fee payment should be condoned. The appeal was presented on the 89th day from the date of the judgment and decree, with a deficiency in court-fee. An application was made to extend the time for paying the full court-fee, citing delays in obtaining the necessary funds due to official routine.
2. The Court examined the discretion granted under Section 149 of the Civil Procedure Code, emphasizing that it should generally be exercised in favor of the litigant unless there are reasons like contumacy or mala fides. The delay in this case was attributed to administrative delays in obtaining the required court-fee, and there was no evidence of mala fides on the part of the appellant. The Court noted that had the court-fee been paid on 16-1-1967, the appeal would have been within the time limit.
3. The respondents argued that the appeal should not be considered due to the delay and improper court-fee payment. However, the Court held that the discretion to allow the litigant to pay the required court-fee later should be exercised judiciously, considering all relevant factors. Referring to previous judgments, the Court highlighted the liberal approach of the law in granting time to rectify deficiencies in court-fee payment.
4. The Court addressed the lack of material supporting the claim of a rush in obtaining the court-fee on 16-1-1967. It emphasized the importance of Government departments being diligent in ensuring timely payment of court-fees to avoid delays in presenting appeals. The Court underscored the responsibility of public servants to act as trustees for public interest and avoid habitual delays in court-fee payments.
5. Ultimately, the Court extended the time for payment of the full court-fee and deemed the appeal to have been presented within the limitation period. The Court cautioned against routine reliance on Section 149 of the Civil Procedure Code by Government departments to cover up delays in court-fee payments, emphasizing the need for timely compliance with court procedures.
6. In conclusion, the Court ruled in favor of extending the time for court-fee payment and presenting the appeal within the limitation period, with no order as to costs in the hearing. The judgment highlighted the importance of timely compliance with court procedures and the responsible conduct expected from Government departments in legal matters.
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1967 (9) TMI 156
Issues:
1. Determination of proper court fee payable on the plaint in a suit for declaration of ownership of properties.
2. Interpretation of Section 7(iv-A) of the Court-Fees Act by the U.P. State Legislature.
3. Whether a decree for declaration of title to money or property falls under the category of a decree for money or property.
4. Clarification on whether a decree in invitum is considered an instrument securing money or property.
5. Assessment of the relief for declaration as a genuine claim or a subterfuge to conceal the true claim.
6. Observations on the delay in litigation proceedings and the responsibility for the delay.
Analysis:
1. The case involved a suit filed by Ram Krishan Burman against the heirs of Radhey Lal, claiming ownership of properties left by Dhan Devi. The issue arose regarding the proper court fee payable on the plaint valued at Rs. 5,99,503/6/3. The Inspector of Stamps opined that the case fell under Section 7(iv-A) of the Court-Fees Act, requiring a court fee of Rs. 3,528/8/-. The Civil Judge ordered the plaintiff to amend the plaint and pay the remaining court fee.
2. The plaintiff appealed to the High Court of Allahabad, which ruled in favor of the plaintiff, stating that the court fee paid was proper and did not fall under Section 7(iv-A). The State of U.P. appealed to the Supreme Court challenging this decision, leading to a detailed analysis of the relevant legal provisions.
3. The interpretation of Section 7(iv-A) was crucial in determining the nature of the decree sought by the plaintiff. The Court examined the language of the provision and rejected the State's contention that a decree concerning title to money or property falls under the category of a decree for money or property. The Court clarified that a decree for declaration of title does not amount to a decree for money or property but is distinct from it.
4. The Court further addressed the argument regarding whether a decree in invitum constitutes an instrument securing money or property. It distinguished between a consent decree and a decree in invitum, emphasizing that the latter is a formal adjudication by the Court and does not secure money or property. The High Court's decision on the proper court fee was upheld based on this analysis.
5. The Court dismissed the State's claim that the relief for declaration was a subterfuge, highlighting the importance of securing recognition of rights through a declaration of title. The genuine nature of the claim for declaration was affirmed, and the Court rejected the State's argument regarding the true purport of the claim.
6. Finally, the Court expressed concern over the prolonged litigation process lasting 13 years due to the State's rigid stance on the court fee issue. The Court urged expedited proceedings in the trial court to resolve the suit promptly. The State was directed to bear the costs of the original plaintiff's heirs in the appeal.
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1967 (9) TMI 155
Issues:
1. Legality of consecutive sentences without specifying the order.
2. Requirement of imposing a fine in addition to imprisonment under Section 325 of the Penal Code.
Analysis:
Issue 1: Legality of consecutive sentences without specifying the order
The revision application challenged the appellate order of the Third Assistant Sessions Judge, which set aside the sentences imposed by the Magistrate on two accused persons. The Judge found the Magistrate's order to be flawed as the sentences under different sections were directed to run consecutively without specifying the order. The Judge relied on Section 35 of the Code of Criminal Procedure and a Calcutta High Court decision to support this view. However, the High Court Judge disagreed with this reasoning. The High Court Judge emphasized that in cases where one of the sentences is life imprisonment, specifying the order is necessary. Still, in this case, where the sentences were for one month or three months of rigorous imprisonment, the order in which they run is immaterial. The failure of the Magistrate to specify the order was deemed inconsequential, and the appellate Court could have directed the order if necessary. Therefore, the High Court held that the consecutive sentences were not illegal solely due to the lack of a specified order.
Issue 2: Requirement of imposing a fine under Section 325 of the Penal Code
The appellate Judge also found fault with the sentence imposed under Section 325 of the Penal Code, as no fine was imposed along with the term of imprisonment. The Judge interpreted the provision as mandating the imposition of a fine in addition to imprisonment. Citing a decision of the Patna High Court, the Judge concluded that a fine was compulsory upon conviction under Section 325. However, the High Court Judge disagreed with this interpretation. The High Court pointed out that the provision stating "shall also be liable to fine" is not indicative of a mandatory fine but rather signifies a liability to fine. The High Court highlighted that similar expressions are present in other sections of the Penal Code where a fine is not mandatory. The Judge clarified that the discretion to impose a fine in addition to imprisonment is left to the Court for offenses where imprisonment is compulsory. Therefore, the High Court held that the imposition of a fine was not obligatory in every case of conviction under Section 325.
In conclusion, the High Court set aside the appellate order and remanded the case for rehearing, emphasizing that the consecutive sentences were not illegal due to the lack of a specified order and that the imposition of a fine was not mandatory under Section 325 of the Penal Code.
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1967 (9) TMI 154
Issues Involved:
1. Legality of tendering pardon to a co-accused by the Special Judge under Section 8(2) of the Criminal Law Amendment Act, 1952.
2. Whether the Special Judge can act suo motu in tendering pardon without a request from the prosecution.
3. Proper exercise of discretion by the Special Judge in tendering pardon.
4. Applicability of Section 540 of the Code of Criminal Procedure in the context of tendering pardon.
Detailed Analysis:
1. Legality of Tendering Pardon to a Co-Accused:
The case discusses the legality of the Special Judge's decision to tender a pardon to a co-accused, Jagasia, under Section 8(2) of the Criminal Law Amendment Act, 1952. The appellant argued that the application for pardon, made after the framing of charges, was not legally tenable. The Court examined the statutory provisions, emphasizing that Section 8(2) allows the Special Judge to tender a pardon to any person supposed to have been directly or indirectly involved in an offense, on condition of making a full and true disclosure. The Court concluded that the Special Judge's action was within his jurisdiction and legally valid.
2. Whether the Special Judge Can Act Suo Motu:
The appellant contended that the Special Judge could not act suo motu in tendering pardon without a request from the prosecution. The Court analyzed the statutory language and found no provision requiring the Special Judge to be moved by the prosecution. It was noted that the Special Judge could consider an offer by an accused, as was the case with Jagasia. Therefore, the Court held that the Special Judge's action was not outside his jurisdiction, even if initiated suo motu.
3. Proper Exercise of Discretion by the Special Judge:
The appellant argued that the Special Judge did not exercise his discretion properly and that the pardon was prejudicial to the defense of other accused. The Court emphasized that the interests of the accused are as important as those of the prosecution. It stated that the Special Judge must know the nature of the evidence the person seeking pardon is likely to give, the nature of his complicity, and the degree of his culpability. The Court criticized the Special Judge for not making any effort to find out what Jagasia had to disclose and for not seeking the opinion of the prosecution before tendering the pardon. However, since the Public Prosecutor later supported the pardon, the Court dismissed the appeal but cautioned against such practices in the future.
4. Applicability of Section 540 of the Code of Criminal Procedure:
The appellant contended that Section 540 of the Code of Criminal Procedure, which allows the Court to summon material witnesses, should govern the tender of pardon. The Court rejected this argument, stating that Section 540 and Sections 337 and 338 of the Code, or Section 8(2) of the Criminal Law Amendment Act, are not to be read together. The considerations for summoning witnesses are different from those for tendering pardon. The Court clarified that Section 540 does not apply to the tender of pardon, which has its own set of considerations and procedures.
Conclusion:
The Supreme Court upheld the Special Judge's decision to tender a pardon to Jagasia, finding it within his jurisdiction and legally valid. However, the Court emphasized the need for the Special Judge to seek the prosecution's opinion before tendering pardon and criticized the practice of acting suo motu without proper consideration of the evidence and the interests of justice. The appeal was dismissed, but the judgment serves as a cautionary note for future cases involving the tender of pardon.
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1967 (9) TMI 153
Issues Involved:
1. Jurisdiction under Article 226 vs. Article 131 of the Constitution.
2. Interpretation of Item 26-AA of the First Schedule to the Central Excises and Salt Act, 1944.
3. Classification of agricultural implements as iron or steel products.
4. Applicability of excise duty on agricultural implements manufactured from iron and steel products.
Issue-wise Detailed Analysis:
1. Jurisdiction under Article 226 vs. Article 131 of the Constitution:
The court addressed whether its power under Article 226 of the Constitution was excluded by Article 131, which grants exclusive jurisdiction to the Supreme Court in disputes between the Government of India and a State. The court found that the Central Government was not a disputant but functioned as a tribunal when it disposed of the revision petition under Section 36 of the Excise Act. The court cited multiple Supreme Court decisions, including M. P. Industries Ltd. v. Union of India and Indo-China S. Navign. Co. v. Jasjit Singh, affirming that the Central Government acts as a tribunal in such cases. Consequently, the court held that Article 131 was not applicable, and the writ petition was maintainable under Article 226.
2. Interpretation of Item 26-AA of the First Schedule to the Central Excises and Salt Act, 1944:
The court examined the scope of Item 26-AA, which imposes excise duty on specified iron or steel products. The key question was whether agricultural implements manufactured by the State Government's factory fell within this item. The court noted that the products in question were manufactured from pre-existing iron and steel products (flats, squares, and rods) rather than from raw materials like pig iron or steel ingots. The court interpreted that Item 26-AA referred to products directly manufactured from raw materials, not from already manufactured products.
3. Classification of Agricultural Implements as Iron or Steel Products:
The court analyzed whether the agricultural implements could be classified as "iron or steel products" under Item 26-AA. It concluded that the term "iron or steel products" in Item 26-AA referred to products manufactured directly from raw materials such as pig iron or steel ingots. Since the agricultural implements were manufactured from pre-existing iron and steel products, they did not fall under this classification. The court supported this interpretation by referring to a notification under Rule 8 of the Central Excise Rules, which exempted products made from duty-paid raw materials from further excise duty.
4. Applicability of Excise Duty on Agricultural Implements Manufactured from Iron and Steel Products:
The court further examined whether agricultural implements could be considered "rolled, forged or extruded shapes and sections" under Item 26-AA. It determined that the named items in the clause (bars, rods, coils, wires, etc.) were raw iron or steel products in various forms, not finished goods like agricultural implements. The court emphasized that the words "shapes and sections" had a technical meaning, referring to pieces of metal with specific cross-sections, and agricultural implements did not fit this description. Therefore, the court concluded that the agricultural implements were not excisable under Item 26-AA.
Conclusion:
The court quashed the impugned demand for excise duty on agricultural implements manufactured by the State Government's factory. It set aside the orders made by the Collector and the Central Government in revision. The court directed that all amounts collected as excise duty under Item 26-AA in respect of the agricultural implements be refunded. The petition was allowed, and no costs were awarded.
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1967 (9) TMI 152
Issues Involved:
1. Constitutionality of Section 5(1) of the Minimum Wages Act under Article 14.
2. Constitutionality of the Minimum Wages Act regarding arbitrary powers.
3. Justification for including the hotel industry in Part-I of the Schedule.
4. Proper constitution of the Advisory Board.
5. Necessity of appointing a Committee for fixation of minimum wages.
6. Whether fixation of minimum wages is a quasi-judicial act.
7. Consultation with the Advisory Board before fixing minimum wages.
8. Whether the rates fixed are minimum wages or fair/living wages.
9. Consideration of the capacity of the industry to pay.
10. Permissibility of dividing the State into zones for different rates of minimum wages.
11. Rational basis for division into zones.
12. Definitions of 'residential hotels' and 'eating houses' and categories of employees.
13. Different rates of minimum wages for adolescents, children, and apprentices.
14. Valuation of food provided to employees.
15. Consideration of other benefits like free lodging in fixing minimum wages.
Detailed Analysis:
I. Constitutionality of Section 5(1) of the Minimum Wages Act under Article 14:
The petitioners argued that Section 5(1) of the Act violates Article 14 by conferring unguided discretion to the Government to follow either of the procedures in Clauses (a) and (b). The court held that the discretion given to the Government is not unguided or uncontrolled. The Government must follow Clause (b) if it has enough material on hand; otherwise, it must appoint a Committee under Clause (a). The court found no violation of Article 14, emphasizing that the discretionary power is vested in a high authority, the Government, which is expected to use it reasonably.
II. Constitutionality of the Minimum Wages Act regarding arbitrary powers:
The petitioners contended that the Act confers arbitrary powers on the Government to fix minimum wages. The court referred to Supreme Court decisions, which held that the Act provides adequate safeguards against hasty or capricious decisions. The court concluded that the Act is not unconstitutional, but if the Government's fixation of minimum wages is arbitrary, it can be challenged.
III. Justification for including the hotel industry in Part-I of the Schedule:
The petitioners argued that the inclusion of the hotel industry in the Schedule was unjustified. The court noted that this contention was not raised earlier and that the inclusion was made in 1959 without challenge. The court found no material to support the claim that the hotel industry was well-organized and free from labor exploitation. The inclusion was upheld.
IV. Proper constitution of the Advisory Board:
The petitioners challenged the constitution of the Advisory Board, arguing that some members did not represent employers in scheduled employments. The court found that the members represented employers in scheduled industries, even if they were not employers themselves. The court also addressed whether Government officials could be considered independent persons, concluding that they could, given the advisory nature of the Board.
V. Necessity of appointing a Committee for fixation of minimum wages:
The petitioners argued that the Government should have appointed a Committee under Clause (a) of Section 5(1) due to the intricate nature of the hotel business. The court held that the Government had enough material and knowledge to proceed under Clause (b) without appointing a Committee, finding no abuse of discretion.
VI. Whether fixation of minimum wages is a quasi-judicial act:
The petitioners contended that fixation of minimum wages is a quasi-judicial act requiring adherence to principles of natural justice. The court disagreed, stating that the process is administrative, not quasi-judicial. The Government is not required to adjudicate rights but to determine minimum wages based on objective data.
VII. Consultation with the Advisory Board before fixing minimum wages:
The petitioners argued that the Advisory Board should have been consulted after publishing the proposals and receiving representations. The court found no requirement in the Act for such a sequence and held that the consultation before publishing proposals was sufficient.
VIII. Whether the rates fixed are minimum wages or fair/living wages:
The petitioners claimed that the rates fixed were not minimum wages but fair or living wages. The court referred to Supreme Court definitions and concluded that minimum wages include more than bare subsistence and are not limited to the employer's capacity to pay. The court found no evidence that the rates were above minimum wages.
IX. Consideration of the capacity of the industry to pay:
The petitioners argued that the Government should consider the industry's capacity to pay. The court reiterated that capacity to pay is irrelevant for minimum wages, which are intended to ensure a basic standard of living for workers.
X. Permissibility of dividing the State into zones for different rates of minimum wages:
The petitioners challenged the division of the State into zones. The court upheld the division, citing Section 3(3)(a)(iv) of the Act, which allows different rates for different localities.
XI. Rational basis for division into zones:
The petitioners argued that the classification into zones was arbitrary. The court found that factors like cost of living and economic conditions justified the classification. The inclusion of Mangalore in Zone 'A' was also upheld, despite challenges based on population and cost of living index figures.
XII. Definitions of 'residential hotels' and 'eating houses' and categories of employees:
The petitioners contended that the lack of definitions created ambiguity. The court held that the ordinary meanings of these terms were sufficient and that any disputes could be resolved by the Authority under Section 20 of the Act.
XIII. Different rates of minimum wages for adolescents, children, and apprentices:
The petitioners argued for different rates for these groups. The court agreed that the rates should not apply to children, adolescents certified to work as children, and apprentices, leaving it open for the Government to fix separate rates.
XIV. Valuation of food provided to employees:
The petitioners challenged the low valuation of food and the Government's authority to fix it. The court found the valuation reasonable and within the Government's power under the Act and Rules.
XV. Consideration of other benefits like free lodging in fixing minimum wages:
The petitioners argued for deductions for lodging and other amenities. The court held that such deductions are not permissible under the definition of wages in Section 2(h) of the Act.
Conclusion:
The petitions were dismissed except for the limited extent that the rates of minimum wages fixed by the impugned notification were declared as not applicable to children, adolescents certified to work as children, and apprentices. The Government was allowed to fix separate rates for these groups following the procedure under the Act.
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1967 (9) TMI 151
Issues:
- Interpretation of section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948.
- Eligibility criteria for obtaining an exemption certificate under section 88B.
- Application of the Bombay Public Trusts Act, 1950 to trusts situated in different states.
- Effect of territorial changes on the registration of trusts under the Bombay Public Trusts Act.
Analysis:
The judgment in question pertains to an appeal regarding the eligibility of a mahant of a public and religious trust to obtain an exemption certificate under section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948. The key issue revolves around whether the trust meets the conditions specified in section 88B for obtaining the exemption certificate. The three conditions required for eligibility are: (1) the land must be owned by a trust for public religious worship, (2) the trust must be registered under the Bombay Public Trusts Act, 1950, and (3) the entire income from the lands must be utilized for the trust's purposes.
The first and third conditions are not in dispute in this case. The crux of the matter lies in whether the trust is deemed to be registered under the Bombay Public Trusts Act, 1950. The appellant contends that the trust, situated in Burhanpur, Madhya Pradesh, should be considered registered under the Bombay Act due to territorial changes and the insertion of Schedule AA in the Act. However, the court clarifies that the application of the Bombay Act is intended for trusts that have come within the new State of Maharashtra post-reorganization, not trusts still situated in Madhya Pradesh. Therefore, trusts administered in Madhya Pradesh are not automatically governed by the Bombay Act, as this would lead to conflicting jurisdiction between the two states' trust laws.
The court emphasizes that the trust's location and administration in Burhanpur, Madhya Pradesh, with only a small portion of its property in Maharashtra, do not warrant dual governance under both state laws. Such a division of administration is not contemplated by the Acts. Consequently, the trust in question does not fall under the purview of section 28 and cannot be deemed registered under the Bombay Act. As a result, the appellant is not entitled to the exemption certificate under section 88B, leading to the dismissal of the appeal with no costs awarded.
In conclusion, the judgment clarifies the specific conditions that must be met for obtaining an exemption certificate under section 88B of the Bombay Tenancy and Agricultural Lands Act, emphasizing the importance of proper registration under the Bombay Public Trusts Act, 1950, and the impact of territorial changes on the application of trust laws across states.
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1967 (9) TMI 150
Issues Involved:
1. Declaration of title to suit properties.
2. Injunction against execution of decree.
3. Setting aside the judgment and decree in O.S. 3 of 1958.
4. Allegation of fraud and collusion.
5. Res judicata.
Detailed Analysis:
Declaration of Title to Suit Properties:
The appellant company claimed ownership of the suit properties, asserting that they were purchased by its promoters as representatives of the company before its incorporation. The court below found that the suit properties belonged to the plaintiff company. However, the High Court noted that the properties were purchased by the promoters in 1945, and the company was incorporated in 1948. The High Court concluded that the company could not claim title to the properties without a registered conveyance from the promoters to the company after its incorporation.
Injunction Against Execution of Decree:
The appellant sought an injunction to restrain the first defendant from executing the decree obtained in O.S. 16 of 1949. The High Court observed that the first defendant had obtained a decree against the second and third defendants for a sum of Rs. 10,000 due under a promissory note. The High Court concluded that the decree in O.S. 16 of 1949 was valid and enforceable, and the first defendant was entitled to execute it.
Setting Aside the Judgment and Decree in O.S. 3 of 1958:
The appellant company sought to set aside the judgment and decree in O.S. 3 of 1958, claiming that it was obtained by fraud and collusion. The High Court found that the decree in O.S. 3 of 1958 was a clear decision on the question of title as between the parties and would operate as res judicata. The High Court held that the judgment and decree in O.S. 3 of 1958 were binding and could not be set aside on the grounds of fraud and collusion.
Allegation of Fraud and Collusion:
The appellant alleged that the second and third defendants colluded with the first defendant to allow the properties to be attached and sold to discharge their personal debts. The High Court found no evidence to support the finding of collusion or fraud. The High Court held that the second defendant had been contesting the execution of the decree in O.S. 16 of 1949 and had all along been asserting the company's title to the properties. The High Court concluded that there was no extrinsic fraud or collusion to vitiate the judgment and decree in O.S. 3 of 1958.
Res Judicata:
The High Court held that the judgment and decree in O.S. 3 of 1958 operated as res judicata and barred the present suit. The High Court noted that the issue of title to the suit properties had been directly decided in O.S. 3 of 1958, and the present suit could not re-agitate the same issue. The High Court concluded that the judgment and decree in O.S. 3 of 1958 were binding and conclusive as between the parties.
Conclusion:
The High Court allowed the appeal of the first defendant (A.S. 178 of 1962) and dismissed the suit, holding that the judgment and decree in O.S. 3 of 1958 were binding and operated as res judicata. The High Court dismissed the appeal of the company (A.S. 28 of 1962) and held that the company was not entitled to the suit properties without a registered conveyance from the promoters. The High Court found no evidence of fraud or collusion and concluded that the decree in O.S. 16 of 1949 was valid and enforceable.
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1967 (9) TMI 149
Issues Involved:
1. Interpretation of Section 154 of the Bombay Municipal Corporation Act, 1888.
2. Correct rateable value assessment under Section 154.
3. Allowability of various expenses claimed by the respondent-Club in the rateable value assessment.
Issue-wise Detailed Analysis:
1. Interpretation of Section 154 of the Bombay Municipal Corporation Act, 1888:
The primary issue in this appeal concerns the interpretation of Section 154 of the Bombay Municipal Corporation Act, 1888, which deals with the valuation of property assessable to property taxes. The section mandates that to fix the rateable value of any building or land, a deduction of 10% from the annual rent is to be made in lieu of all allowances for repairs or any other account. This annual rent is not the actual rent paid but rather a hypothetical rent that a tenant might reasonably be expected to pay from year to year.
2. Correct Rateable Value Assessment under Section 154:
The assessing authority adopted the profits basis method to determine the rateable value, which involves calculating the net annual value from the profits made or capable of being made from the premises. This method starts with the gross receipts and deducts expenses necessary to maintain the premises, resulting in the net annual value. The Small Cause Court and the High Court both upheld the use of this method given the unique nature of the Club's premises. The High Court, however, disagreed with some of the deductions allowed by the assessing authority, resulting in a significantly lower rateable value than the actual rent paid by the Club.
3. Allowability of Various Expenses Claimed by the Respondent-Club:
The Club claimed several expenses as deductions, which were partially or wholly disallowed by the Deputy Municipal Commissioner and the Small Cause Court. The High Court, however, allowed most of these deductions, leading to the following detailed analysis:
- Item 3 (Bombay Course upkeep and repairs): The High Court allowed this expense, reasoning that the upkeep of the racecourse track is essential for earning receipts and is not covered by the 10% statutory deduction for repairs under Section 154(1).
- Item 6 (Track sand and Murum): The High Court disagreed with the Small Cause Court's partial allowance and allowed the full expense, emphasizing that these costs are necessary for maintaining the track and thus are deductible.
- Item 7 (Legal charges): The Small Cause Court allowed this deduction, which was upheld by the High Court.
- Item 9 (Totalisator upkeep and repairs): The High Court allowed this expense, noting that the totalisator is an essential adjunct for the efficient operation of the racecourse and its upkeep is necessary for generating receipts.
- Items 10, 11, 12, 13, 14 (Salaries and wages, motor lorry expenses, grass and maintenance charges, insurance and garden expenses, spares for tractors and machinery parts): The High Court allowed the full deduction of these expenses, rejecting the Small Cause Court's view that they should be partially borne by the lessor since the race meetings were held only for part of the year in Bombay.
- Item 19 (Painting): This item was not pressed by the Club before the Supreme Court and thus was not considered.
- Licence Fee: The High Court allowed the full deduction of the licence fee, rejecting the argument that it should be divided between the tenant and the landlord. The Court found that the licence was solely for the Club's benefit in conducting race meetings and thus was the tenant's burden.
- Wheel Tax and Water Tax: The High Court allowed the full deduction of these taxes, rejecting the partial allowance by the Small Cause Court.
The Supreme Court upheld the High Court's judgment, affirming that the deductions allowed were proper and necessary for determining the correct rateable value. The appeal was dismissed with costs, concluding that the net rateable value need not always equal the actual rent paid.
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1967 (9) TMI 148
Issues Involved:
1. Whether the Municipality holds the property as a trustee of a public trust.
2. Whether the decision in the previous suit against Baba Haridas operates as res judicata.
3. Whether the decision of the City Survey Officer under the Bombay District Municipal Act, 1901, affects the current proceedings.
4. Whether the beneficiaries of the trust constitute a section of the public.
5. Procedural objections regarding the scope of the Assistant Charity Commissioner's inquiry.
6. The right of the Charity Commissioner to appeal against the District Court's decision.
Issue-wise Detailed Analysis:
1. Whether the Municipality holds the property as a trustee of a public trust:
The primary issue was whether the Municipality of Taloda held the property in question as a trustee of a public trust. The property was originally transferred by Dagadu Khushal to the Municipality for "public purpose" to be used for sheltering "Sadhus, saints, and religious mendicants." The Assistant Charity Commissioner and the High Court of Bombay held that the Municipality held the property as a trustee of a public trust. The Supreme Court confirmed this view, stating that once the Municipality accepted the property for the purposes mentioned in the deed, it could not divert the use of the property for its own purposes. The Court rejected the argument that the Municipality could not accept a trust for a section of the public, stating that there was nothing in the Act or general law preventing such an acceptance.
2. Whether the decision in the previous suit against Baba Haridas operates as res judicata:
The Municipality argued that the decision in the 1936 suit against Baba Haridas, which negated the Johari community's rights to the property, should operate as res judicata. The Supreme Court dismissed this argument, noting that the suit against Baba Haridas was about the Municipality's right to possession, not about the existence of a public trust. Baba Haridas was sued as a trespasser, not in a representative capacity for the beneficiaries of the trust. Therefore, the judgment did not prevent the Assistant Charity Commissioner from determining the trust's nature in the current proceedings.
3. Whether the decision of the City Survey Officer under the Bombay District Municipal Act, 1901, affects the current proceedings:
The Municipality contended that the City Survey Officer's decision, which declared the Municipality as the property's owner, should preclude the current proceedings. The Supreme Court rejected this argument, stating that the legal ownership of the Municipality was not challenged; instead, it was contended that the property was held subject to a public trust. The proceedings under Section 19 of the Bombay Public Trusts Act were not to set aside the City Survey Officer's order but to declare the property as part of a public trust.
4. Whether the beneficiaries of the trust constitute a section of the public:
The Assistant Judge had held that "Sadhus, saints, and religious mendicants" did not form a section of the public, and therefore, the trust was not for an object of general public utility. The Supreme Court disagreed, stating that the beneficiaries were an uncertain and fluctuating body of persons forming a considerable section of the public with a common bond of veneration for the samadhi. The Court referenced Section 9 of the Bombay Public Trusts Act, which includes the advancement of any object of general public utility within the definition of a charitable purpose. Therefore, the trust was deemed to be for a public, religious, and charitable purpose.
5. Procedural objections regarding the scope of the Assistant Charity Commissioner's inquiry:
The Municipality argued that the Assistant Charity Commissioner should have dismissed the application once it was found that the property was not for the benefit of the Johari Panchas. The Supreme Court rejected this contention, stating that the proceedings under Section 19 of the Bombay Public Trusts Act were to determine the existence of a public trust. The Assistant Charity Commissioner was bound to declare the existence of the public trust and register it, regardless of the specific claims made by the applicants.
6. The right of the Charity Commissioner to appeal against the District Court's decision:
The Municipality contended that the Charity Commissioner, being a judicial authority, could not appeal against the District Court's decision. The Supreme Court dismissed this argument, stating that the Charity Commissioner is responsible for superintending the administration and carrying out the provisions of the Act. Denying the right to appeal would hinder the Charity Commissioner's ability to ensure proper administration of public trust property. The Charity Commissioner was entitled to support his order and appeal against an adverse decision.
Conclusion:
The Supreme Court dismissed the appeal, confirming that the property in question was held by the Municipality as a trustee of a public trust for the benefit of "Sadhus, saints, and religious mendicants." The Court upheld the findings of the Assistant Charity Commissioner and the High Court, rejecting all procedural and substantive objections raised by the Municipality. The appeal was dismissed with costs in favor of the Charity Commissioner.
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1967 (9) TMI 147
Issues:
1. Determination of whether a chattel attached to the earth or a building qualifies as immovable property.
2. Interpretation of the term "immovable property" under Indian enactments.
3. Application of tests to ascertain if a chattel is immovable property.
4. Analysis of relevant legal precedents regarding fixtures and immovable property.
5. Assessment of the nature of attachment and fixture of a specific engine in question.
Detailed Analysis:
1. The judgment revolves around the question of whether a chattel attached to the earth or a building constitutes immovable property. The dispute arose from the attachment and sale of an engine under recovery proceedings. The lower courts disagreed on the nature of the property, with one court considering it movable while the other deemed it immovable. The judgment emphasizes that the determination is a mixed question of law and fact, requiring a case-specific analysis.
2. The interpretation of "immovable property" under Indian enactments, such as the General Clauses Act, the Registration Act, and the Transfer of Property Act, is crucial. The judgment highlights that these statutes define immovable property as including things attached to the earth but provide limited guidance on what constitutes attachment or permanent fastening. Section 3 of the Transfer of Property Act outlines criteria for attachment to the earth, emphasizing the degree and purpose of attachment as key factors.
3. The application of tests to ascertain whether a chattel qualifies as immovable property is discussed. The judgment underscores that the decision should consider specific facts and the overall context, rather than relying solely on general tests. The degree, manner, extent, and purpose of attachment to the earth or a building are essential considerations in determining immovability.
4. The judgment delves into relevant legal precedents, both Indian and English, regarding fixtures and immovable property. Cases such as Board of Revenue v. Venkataswami and Subramanian Firm v. Chidarnbaram Servai are cited to illustrate the principles governing the classification of chattels as immovable or movable based on attachment and beneficial enjoyment.
5. A detailed analysis of the nature of attachment and fixture of the specific engine in question is provided. The judgment concludes that the engine, despite being affixed to the earth, does not qualify as immovable property due to its nature and purpose. The engine's attachment is deemed necessary for its use, indicating a temporary rather than permanent fixture, thus classifying it as movable property.
In conclusion, the judgment allows the appeal, dismissing the suit as the engine and pump-set are deemed movable property. The decision emphasizes that the attachment and sale procedures were appropriate based on the classification of the property as movable. Each party is directed to bear its own costs throughout the legal proceedings.
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1967 (9) TMI 146
Issues Involved:
1. Permission to cross-examine under Section 154 of the Evidence Act.
2. Judicial discretion in granting cross-examination.
3. Conditions for considering a witness hostile.
4. Examination of witnesses under legal obligations versus necessity.
5. Application of leading questions under Section 142 of the Evidence Act.
Detailed Analysis:
1. Permission to Cross-Examine under Section 154 of the Evidence Act:
The petitioner sought permission under Section 154 of the Evidence Act to cross-examine his own witness, which was opposed by the respondents. The court noted that the discretion to grant such permission is entirely judicial and must be exercised judiciously. The court emphasized that the primary objective of taking evidence is to discover the truth, and the discretion should not be influenced by whether the cross-examination would favor or disfavor any party.
2. Judicial Discretion in Granting Cross-Examination:
The court highlighted the principles governing the exercise of discretion under Section 154, referring to the judgment in *State v. Subbappa* (1960 Mys LJ 887). The court must consider whether the witness's disposition suggests a reluctance to speak the truth, thereby necessitating cross-examination by the party that called the witness. The court pointed out that an element of surprise, where a witness unexpectedly gives an adverse answer, could be a starting point for considering such permission.
3. Conditions for Considering a Witness Hostile:
The court clarified that it is not necessary to formally declare a witness hostile before granting permission to cross-examine under Section 154. The witness's attitude must indicate a desire not to speak the truth or to mislead the court. The court cited *Sachidanand Prasad v. Emperor* (AIR 1933 Pat 488) to support the view that unexpected adverse statements by a witness could justify cross-examination to test their veracity.
4. Examination of Witnesses under Legal Obligations versus Necessity:
The court distinguished between witnesses examined under legal obligations (e.g., attesting witnesses) and those examined out of necessity. In the present case, the petitioner argued that he was compelled to examine the witness due to the circumstances, even though he anticipated the need to cross-examine him. The court rejected the analogy with attesting witnesses, noting that the necessity in this case was based on the petitioner's opinion rather than a legal requirement.
5. Application of Leading Questions under Section 142 of the Evidence Act:
The court addressed the issue of putting leading questions during examination-in-chief, referencing the Calcutta High Court's decision in *Profulla Kumar v. Emperor* (AIR 1931 Cal 401 (FB)). The court agreed with the full bench decision that Section 142 allows leading questions with the court's permission, even without granting general permission to cross-examine under Section 154. The court emphasized that leading questions could be permitted on particular matters of material importance to aid in discovering the truth.
Conclusion:
The court declined to grant general permission to cross-examine the witness under Section 154 of the Evidence Act. However, it allowed for the possibility of putting leading questions on specific topics of material importance. The examination of the witness would continue with this ruling in mind. The hearing was adjourned for further examination of the witness.
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1967 (9) TMI 145
Issues Involved:
1. Constitutionality of Section 8(3)(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952.
2. Delay in filing the petition under Article 226 of the Constitution.
Issue-Wise Detailed Analysis:
1. Constitutionality of Section 8(3)(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952:
The Supreme Court examined the constitutionality of Section 8(3)(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952, which stipulates that compensation for acquired property should be the lesser of either the price the requisitioned property would have fetched in the open market if sold on the date of acquisition or twice the price it would have fetched if sold on the date of requisition.
The Court referred to the preamble and various sections of the Act, noting that the Act was designed to provide for the requisitioning and acquisition of immovable property for the Union. The Court emphasized that the Act must be analyzed in the context of the Constitution as it stood before the Fourth Amendment Act of 1955.
Several precedents were cited, including:
- The State of West Bengal v. Mrs. Bela Banerjee and others ([1954] S.C.R. 558): The Court held that compensation under Article 31(2) must be a "just equivalent" of the property acquired and that fixing an anterior date for valuation without reference to the acquisition date was arbitrary.
- State of Madras v. D. Namasivaya Mudaliar ([1964] 6 S.C.R. 936): The Court ruled that fixing compensation based on an outdated market value was arbitrary and inconsistent with Article 31(2) as it stood before the Fourth Amendment.
- P. Vajravelu Mudaliar v. Special Deputy Collector ([1965] 1 S.C.R. 614): Reaffirmed that compensation must be a "just equivalent" of the property.
The Court concluded that Section 8(3)(b) was arbitrary as it mandated compensation based on the lesser of two valuations, one of which (twice the price on the date of requisition) had no rational basis. This method did not provide a just equivalent of the property at the time of acquisition, thus violating Article 31(2). The Court stated, "Clause (b) of sub-s. (3) of s. 8 leaves the arbitrator no choice of assessing the value in terms of cl. (a) even if he was of opinion that the mode fixed thereunder afforded a just equivalent of the property to its owner."
2. Delay in Filing the Petition under Article 226 of the Constitution:
The Union of India argued that the petition should be dismissed due to the delay in its filing. The High Court had rejected this argument, noting that while the original acquisition occurred on April 4, 1953, the arbitrator was appointed on June 21, 1961, and the petitioner approached the Court on September 18, 1962.
The Supreme Court upheld the High Court's decision, stating that in cases of fundamental rights infringement, mere delay does not affect the maintainability of the petition. The Court emphasized, "In appeal, we do not feel disposed to take a different view. If the High Court had any discretion in the matter-and it is not suggested that it had not-the exercise of such discretion ought not to be over-ruled by us unless we are satisfied that the High Court had 'acted on some wrong principle or committed some error of law or failed to consider matters which demand consideration.'"
Conclusion:
The Supreme Court dismissed the appeal, affirming the High Court's judgment that Section 8(3)(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952, was ultra vires Article 31(2) of the Constitution. The Court also upheld the High Court's decision to condone the delay in filing the petition, emphasizing the importance of addressing fundamental rights violations. The appeal was dismissed with costs.
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1967 (9) TMI 144
Issues Involved:
1. Membership of the Association.
2. Compliance with Section 15(4) of the Forward Contracts (Regulation) Act, 1952.
3. Validity of the contract.
4. Admissibility of additional evidence.
Issue-wise Detailed Analysis:
1. Membership of the Association:
The appellants claimed they were members of the East India Jute and Hessian Exchange Ltd. at the time of the contract. The respondents initially denied this, but later, in their plaint filed in the City Civil Court, Calcutta, they admitted that the appellants were members of the said Exchange. Consequently, counsel for the respondents did not support the High Court's decision on this ground, and it was established that the appellants were indeed members of the Association at the relevant time.
2. Compliance with Section 15(4) of the Forward Contracts (Regulation) Act, 1952:
Section 15(4) mandates that a member of a recognized association must secure the consent or authority of the non-member and disclose in the contract that the transaction is on the member's own account. If the consent is not in writing, written confirmation must be obtained within three days. The appellants failed to produce evidence of written consent or confirmation from the respondents. The "sold" note, which should have included a confirmation slip, was not produced before the High Court. The appellants' attempt to introduce this evidence at the Supreme Court stage was denied as it did not meet the criteria under Order 41 Rule 27 of the Code of Civil Procedure for admitting additional evidence.
3. Validity of the Contract:
The appellants contended that the lack of written consent or confirmation did not invalidate the contract, arguing that the non-compliance only rendered them liable to a penalty under Section 20(2) of the Act. However, the Supreme Court held that the requirement for written consent or confirmation is a condition precedent for the enforceability of the contract. The absence of such documentation meant there was no enforceable contract. The Court emphasized that the prohibition in Section 15(4) aims to protect the public from potential malpractices by members of recognized associations and is not merely a revenue measure.
4. Admissibility of Additional Evidence:
The appellants sought to introduce a confirmation slip signed by "M.L. Bahati" as additional evidence. The Supreme Court declined this request, noting that the document was in the appellants' possession and could have been produced in the High Court. The appellants failed to provide a rational explanation for not presenting it earlier, and the Court did not find any substantial cause to admit additional evidence at this stage.
Conclusion:
The Supreme Court upheld the High Court's decision, concluding that the contract was invalid due to non-compliance with Section 15(4) of the Forward Contracts (Regulation) Act, 1952. The appeal was dismissed with costs.
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1967 (9) TMI 143
Issues Involved:
1. Whether the assessing authority under Section 154(1) of the Bombay Municipal Corporation Act, 1888, can consider income derived from an advertisement hoarding on a building's roof when determining the rateable value of the building.
Issue-wise Detailed Analysis:
1. Consideration of Advertisement Income in Rateable Value:
The primary issue in this appeal is whether the assessing authority can include income derived from an advertisement hoarding on the roof of a building when determining the rateable value under Section 154(1) of the Bombay Municipal Corporation Act, 1888.
Relevant Facts:
The appellants own a building where the terrace is used for advertising via a neon-sign under an agreement with Tata Locomotive and Engineering Co. Ltd., which pays Rs. 800 per month for the advertisement and Rs. 700 for exclusive rights. The Municipal Corporation increased the rateable value of the building from Rs. 44,320 to Rs. 64,685, considering this additional income. The appellants filed a complaint, and the assessing authority reduced the rateable value to Rs. 59,600. The Chief Judge, Small Cause Court, disallowed the increase, but the High Court restored it, leading to this appeal.
Legal Analysis:
Section 154(1) of the Act mandates that the rateable value of a building is the annual rent it might reasonably be expected to let from year to year, minus a 10% statutory allowance. The principle in rating is that both gross and net annual value are estimated by the hypothetical rent a property might fetch. This includes considering all intrinsic qualities and circumstances affecting rental value.
Hypothetical Rent Consideration:
The hypothetical tenant would consider all advantages, including the unique location of the property and the potential income from advertising. The measure for rating is the rent a hypothetical tenant would pay, considering all beneficial uses of the property. Therefore, the income from the advertisement hoarding is relevant as it adds to the beneficial value of the building.
Irrelevance of Lease vs. Licence:
The distinction between lease and licence is irrelevant for assessing rateable value. The hypothetical tenant would consider the total potential income, not just the rent. The income from the advertisement, whether termed as rent or licence fee, affects the rent a hypothetical tenant would offer.
Precedents and Comparisons:
The judgment refers to English law and cases where the income from advertisements was rated irrespective of whether it was termed rent or licence fee. The case of Corporation of Calcutta v. Anil Prakash Basu, which held that licence fees could not be treated as rent, was distinguished on the basis that it did not consider the broader principle of hypothetical rent.
Conclusion:
The Court concluded that the income from the advertisement hoarding legitimately affects the rateable value of the building. The High Court was correct in confirming the enhancement of the annual rent from Rs. 44,320 to Rs. 59,600, as a hypothetical tenant would consider the additional income from the advertisement when determining the rent they could offer.
Judgment:
The appeal was dismissed with costs, affirming the High Court's decision to include the advertisement income in the rateable value of the building.
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1967 (9) TMI 142
Issues Involved:
1. Validity of the sale of mortgaged property belonging to a public trust without the sanction of the Charity Commissioner under Section 36 of the Bombay Public Trusts Act.
2. Compliance with Order 21 Rule 89 of the Code of Civil Procedure for setting aside the sale of the mortgaged property.
3. Judicial propriety and the binding nature of precedents in the context of the judgment delivered by a Single Judge of the High Court.
Issue-wise Detailed Analysis:
1. Validity of the Sale of Mortgaged Property without Charity Commissioner's Sanction:
The primary issue was whether the sale of the mortgaged property belonging to a public trust, executed without the prior sanction of the Charity Commissioner, was valid under Section 36 of the Bombay Public Trusts Act. Section 36(a) of the Act states that no sale, mortgage, exchange, or gift of any immovable property belonging to a public trust shall be valid without the previous sanction of the Charity Commissioner.
The High Court of Gujarat, through Raju, J., held that the sale of the mortgaged property without such sanction was invalid. However, the Supreme Court disagreed with this view, stating that the transactions contemplated under Section 36(a) are voluntary transactions made by the trustees. The Court clarified that the term "sale" in this context does not include a court-ordered sale in execution of a decree. The Supreme Court emphasized that the section imposes a restriction on the powers of the trustees but does not confer overriding authority on the Charity Commissioner over actions of the Civil Court executing a decree.
2. Compliance with Order 21 Rule 89 of the Code of Civil Procedure:
The second issue was whether the trustees complied with the requirements of Order 21 Rule 89 of the Code of Civil Procedure, which allows for setting aside a sale of immovable property in execution of a decree. The rule requires the applicant to deposit in court a sum equal to five percent of the purchase money for payment to the auction purchaser and the amount specified in the proclamation of sale for payment to the decree-holder.
In this case, the trustees deposited Rs. 250 for payment to the auction purchaser and Rs. 63 for payment to the decree-holder. However, the mortgagee's claim was not satisfied by this deposit. The Supreme Court held that the trustees failed to fulfill the second condition of depositing the amount specified in the proclamation of sale. The Court rejected the argument that the mortgagee's agreement to abandon the execution proceeding was equivalent to payment to the decree-holder. The Court emphasized that Rule 89 is intended to allow the judgment-debtor to satisfy the claim of the decree-holder and compensate the auction purchaser, not to defeat the claim of the auction purchaser.
3. Judicial Propriety and Binding Nature of Precedents:
The judgment also addressed the issue of judicial propriety and the binding nature of precedents. Raju, J., had expressed the view that he was not bound to follow precedents set by Single Judges or Division Benches of the High Court, or even by Full Benches if the Full Bench judgment was given on a reference made by a Single Judge or Division Bench. He argued that such judgments had "no existence in law."
The Supreme Court strongly disagreed with this view, stating that such observations subvert the accepted notions about the force of precedents in the judicial system. The Court emphasized that precedents enunciating rules of law form the foundation of the administration of justice and that a Single Judge is ordinarily bound to accept judgments of courts of coordinate jurisdiction and higher authority. The Court highlighted the importance of uniformity and certainty in the law and criticized the notion that a Single Judge could ignore binding precedents.
The Supreme Court reiterated that judicial propriety and decorum require a Single Judge to refer matters to a Division Bench or the Chief Justice if he believes that an earlier decision needs reconsideration. The Court emphasized that ignoring precedents undermines the utility of the law and creates uncertainty.
Conclusion:
The appeal was allowed, and the order passed by the High Court was set aside, restoring the order of the District Court. The Supreme Court's judgment underscored the importance of adhering to statutory requirements for setting aside sales in execution of decrees and maintaining judicial propriety by following binding precedents. The Court clarified the scope of Section 36 of the Bombay Public Trusts Act and reinforced the procedural requirements under Order 21 Rule 89 of the Code of Civil Procedure.
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1967 (9) TMI 141
Issues Involved:
1. Applicability of Section 403 of the Criminal Procedure Code (CrPC) in barring subsequent trials.
2. Legality and propriety of subsequent trials for criminal breach of trust involving different amounts misappropriated during the same period.
3. Inherent powers of the High Court under Section 561A of the CrPC to quash proceedings.
Detailed Analysis:
1. Applicability of Section 403 of the Criminal Procedure Code (CrPC) in barring subsequent trials:
The petitioner argued that his previous conviction in Sessions Case No. 46 of 1963 for criminal breach of trust under Section 409 of the Indian Penal Code (IPC) should bar subsequent prosecutions for similar offenses committed during the same period. Section 403(1) of the CrPC was cited, which states that a person who has been tried and convicted or acquitted for an offense cannot be tried again for the same offense or on the same facts for any other offense for which a different charge might have been made under Section 236 or for which he might have been convicted under Section 237.
The court held that Section 403(1) does not apply in this case because the petitioner is not being tried for the same offense for which he was convicted in Sessions Case No. 46 of 1963. The offenses in the new cases involve different sums of money that were not included in the original gross sum of Rs. 583. Thus, the subsequent prosecutions are independent and do not constitute double jeopardy.
2. Legality and propriety of subsequent trials for criminal breach of trust involving different amounts misappropriated during the same period:
The court examined whether the subsequent trials are legal and whether they should be allowed to proceed. It was argued that the principle underlying Section 403 should be extended to bar the subsequent trials. The court referred to various precedents, including the Supreme Court's decision in Ranchhod Lal v. State of Madhya Pradesh, which clarified that Section 222(2) of the CrPC is an exception to the general rule that each distinct offense should be tried separately.
The court noted that while the legality of the second trial is upheld, the interests of justice might require quashing the proceedings. The court distinguished between the legality and propriety of the second trial, emphasizing that the second trial is not illegal but may be undesirable under certain circumstances.
3. Inherent powers of the High Court under Section 561A of the CrPC to quash proceedings:
The court acknowledged its inherent powers under Section 561A of the CrPC to quash proceedings to prevent abuse of the process of the court or to secure the ends of justice. The court cited the Supreme Court's decision in R.P. Kapur v. State of Punjab, which affirmed the High Court's power to quash proceedings in appropriate cases.
The court concluded that the interests of justice require quashing the pending prosecutions against the petitioner. The petitioner had already faced a lengthy trial, served a sentence, and paid a fine. The amounts involved in the new cases had been recovered, and further trials would subject the petitioner to unnecessary hardship and humiliation.
Conclusion:
The court set aside the decision of the learned Additional Sessions Judge and quashed the proceedings in cases Nos. 42 of 1966 and 43 of 1966 pending before the learned Judicial Magistrate, First Class, Jalgaon. The court exercised its inherent powers under Section 561A of the CrPC to secure the ends of justice, emphasizing that while the subsequent prosecutions were not legally barred, they were not necessary given the circumstances.
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1967 (9) TMI 140
Whether there has been a termination of the award, Exhibit M-6, in the manner pleaded by the Union?
Held that:- The discretion of the State Government, under s. 10 of the Act, is very wide. It may be that the workmen. affected by the standing orders, may not always, and in every case, Succeed in obtaining a reference to the Industrial Tribunal, on a relevant point. These are some of the circumstances for giving a right and remedy, to the workman, under the Standing Orders Act itself, but there is no indication, in the scheme of the Standing, Orders Act, that the jurisdiction of the Industrial Tribunal, to entertain an 'Industrial dispute', bearing upon the standing orders of in industrial establishment, and to adjudicate upon the same, has any manner been abridged, or taken away, by the Standing Orders Act. Therefore, on this aspect, we are in agreement with the conclusions, arrived at, by the Industrial Tribunal, and the High Court.
In view of our finding on the first point, that the award, Exhibit M-6 'had not been terminated. it follows that the reference. made by the State Government, dated March 20,1963, in his case, is incompetent, and the Industrial Tribunal has no jurisdiction to adjudicate upon the same, in I.D. No. 8 of 1963. In the result, the order :of the High Court is set aside, and a writ of prohibition, restraining the second respondent, from proceeding with the adjudication, in I.D. No. 8 of 1963, will issue, and the appeal allowed, to that extent. Appeal allowed in part.
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1967 (9) TMI 139
Issues Involved:
1. Validity of rectification under section 62 of the Estate Duty Act, 1953.
2. Inclusion of Rs. 1,58,000 as property deemed to pass on the death under section 9 read with section 27 of the Estate Duty Act.
Issue-Wise Detailed Analysis:
1. Validity of Rectification under Section 62:
The propriety and legality of the revenue's exercise of jurisdiction under section 62 of the Estate Duty Act, 1953, were challenged. The Assistant Controller of Estate Duty initially assessed the estate of the deceased, determining the principal value at Rs. 3,84,066. Later, this was revised to Rs. 6,12,879, citing a mistake in the valuation of 1,000 shares sold by the deceased to his sons and grandsons. The accountable person argued that there was no mistake apparent from the record or in the valuation of any property, nor any omission of property in the assessment. The court noted that section 62 allows rectification of mistakes apparent from the record, mistakes in valuation, or omissions of any property. The court emphasized that such provisions should be applied liberally to further the remedy and suppress the mischief.
2. Inclusion of Rs. 1,58,000 as Property Deemed to Pass on Death:
The main dispute was regarding the 1,000 shares sold by the deceased to his sons and grandsons. The Assistant Controller considered this sale a disposition in favor of relatives under section 27 of the Act and deemed the difference between the market value and the sale price as a gift under section 9. The Central Board of Revenue upheld this view, stating that the shares should be valued at Rs. 258 each, and the difference between this value and the sale price should be considered a gift. The accountable person contended that the sale was bona fide and fully supported by consideration, and that sections 9 and 27 were not applicable. The court, however, found that the Assistant Controller did not consider the applicability of these sections in the original assessment and thus, the rectification was permissible.
Analysis of Legal Provisions and Precedents:
The court analyzed the terms "mistake," "mistake apparent from the record," and "rectification" in the context of taxing laws, referencing several judicial precedents under analogous provisions in the Income-tax Act. It was noted that a mistake could be an error discerned after a judicious probe into the records, not necessarily an arithmetical or clerical error. The court emphasized that the essence of rectification is to bring the order in harmony with the law, correcting any mistakes that result in an incorrect assessment.
Application of Sections 9 and 27:
The court examined whether the sale of shares constituted a disposition involving an element of bounty. It was noted that section 27 treats dispositions to relatives as gifts unless made for full consideration in money or money's worth. The court found no satisfactory explanation for the low sale price of Rs. 100 per share, compared to the agreed value of Rs. 258 per share for other similar shares on the date of death. The court concluded that the sale involved an element of bounty, making it a gift under section 9.
Conclusion:
The court held that the rectification under section 62 was valid and that the inclusion of Rs. 1,58,000 as property deemed to pass on the death was in accordance with the law. The accountable person was to be given an opportunity to prove the fair price of the shares on the date of sale. The court answered both queries in the affirmative and dismissed the tax case with costs.
Judgment:
The court answered both questions in the affirmative, validating the rectification and the inclusion of Rs. 1,58,000 as property deemed to pass on the death. The tax case was dismissed with costs, and counsel's fee was set at Rs. 250.
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1967 (9) TMI 138
Issues Involved:
1. Whether the supply of bus-bodies constructed and fitted onto chassis provided by customers amounted to the sale of specific chattels chargeable to sales tax.
2. Whether the Appellate Assistant Commissioner acted in excess of his jurisdiction in enhancing the assessment.
3. Whether the assessment of the enhanced turnover was barred by limitation.
Issue-wise Detailed Analysis:
1. Sale of Specific Chattels vs. Works Contract:
The primary issue was whether the supply of bus-bodies constructed and fitted onto chassis provided by customers constituted a sale of specific chattels chargeable to sales tax or a works contract. The Tribunal concluded that the transactions were sales of goods, stating: "the predominating element in the transactions was the sale of built body, that the work and labour were only subsidiary." The court noted that the phraseology used by the Tribunal was not entirely accurate but agreed with its conclusion. The court emphasized that the determination of whether a transaction is a sale of goods or a works contract depends on whether the property in the materials used passes to the customer at the time of delivery of the finished article or during the process of work. The court referenced several precedents, including State of Madras v. Gannon Dunkerley & Co., Sundaram Motors (Private) Ltd. v. The State of Madras, and Carl Still G.m.b.H. v. State of Bihar, to elucidate the principles governing such determinations. The court found that the property in the bus-bodies passed at the time of delivery as finished articles, not during the construction process, thereby constituting a sale of goods.
2. Jurisdiction of the Appellate Assistant Commissioner:
The second issue was whether the Appellate Assistant Commissioner exceeded his jurisdiction by enhancing the assessment beyond the scope of the assessee's appeal. The court interpreted section 31(3)(a)(i) of the Madras General Sales Tax Act, 1959, which allows the Appellate Assistant Commissioner to "confirm, reduce, enhance or annul the assessment." The court rejected the narrow interpretation that the power to enhance should be confined to the part of the order objected to by the assessee. The court held that the power to enhance extends to the entire assessment, stating: "The words 'enhance the assessment' in section 31(3)(a)(i) should, as it appears to us, be given their full scope." The court drew support from analogous provisions in the Income-tax Act, 1922, and relevant case law, including Narrondas Manordass v. Commissioner of Income-tax and Commissioner of Income-tax v. McMillan & Co. The court concluded that the Appellate Assistant Commissioner was competent to enhance the assessment by including the bus-body-building contracts as sales of goods.
3. Limitation on Enhanced Assessment:
The final issue was whether the assessment of the enhanced turnover was barred by limitation. The court agreed with the Tribunal's view that the Appellate Assistant Commissioner, in enhancing the assessment, did not act under section 16 as a case of escaped assessment but used his powers under section 31(3)(a)(i) of the Act. Consequently, the enhancement was not subject to limitation constraints applicable to escaped assessments. The court stated: "The Appellate Assistant Commissioner in enhancing the assessment did not act under section 16 as a case of escaped assessment but he was using his powers under section 31(3)(a)(i) of the Act."
Conclusion:
The court allowed the tax cases for the limited purpose of re-examining the nature of the transactions if the contracts are produced before the Tribunal. If no contracts are filed, the Tribunal's view that the transactions are sales of goods will stand. The appeals were remitted to the Tribunal for fresh disposal, allowing both the assessee and the revenue to adduce further evidence. There was no order as to costs in these tax cases.
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