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1979 (9) TMI 213
Issues:
Challenge to imposition of tax on advertisements under Madhya Pradesh Municipal Corporation Act, 1956.
Validity of the resolution imposing the tax under section 132 and compliance with section 133 of the Act.
Effect of absence of bye-laws for assessment and collection of tax before a certain date.
Interpretation of Article 265 of the Constitution regarding levy and collection of taxes.
Applicability of sections 173 to 175 of the Act in the absence of specific bye-laws for assessment.
Analysis:
1. The petitioners challenged the imposition of tax on advertisements, excluding those in newspapers, by the Indore Corporation under the Madhya Pradesh Municipal Corporation Act, 1956. The main contention was that the resolution imposing the tax lacked a 'system of assessment' as required by section 133 of the Act. The argument focused on whether the procedure for assessment and collection of taxes should be explicitly included in the resolution or regulated by separate byelaws.
2. The High Court analyzed the meaning of 'system of assessment' in section 133 and referred to a Supreme Court decision in Vallabhdas v. Municipal Committee, Akola. The court held that the 'system of assessment' pertains to the stage of imposition of the tax and not the entire procedure for assessment and collection. It emphasized that the Act provides for byelaws under section 427(3) to govern the assessment, collection, and recovery of taxes, thereby supporting the validity of the tax imposition.
3. The court delved into the constitutional aspect of tax imposition, citing Article 265, which mandates that taxes must be levied and collected as per the law. It highlighted that the assessment of tax involves a quasi-judicial process, and even if the statute lacks detailed procedural provisions for assessment, an implied provision can suffice. The court referenced various Supreme Court cases to establish the principles governing tax assessment and collection under the Constitution.
4. Addressing the absence of bye-laws for assessment and collection of the tax until a specific date, the court examined sections 173 to 175 of the Act. These sections outline a machinery for the recovery of Corporation claims, including taxes, in a quasi-judicial manner and provide for appeals. The court interpreted these sections to allow for provisional assessment of taxes, even in the absence of specific byelaws, through a quasi-judicial process involving objections and appeals.
5. Ultimately, the court dismissed the petitions challenging the tax imposition, ruling that the tax was not inoperative before the date when bye-laws were enacted for assessment and collection. It concluded that the provisions of sections 173 to 175 of the Act facilitated both the recovery and assessment of taxes, even in the absence of separate byelaws, by ensuring a quasi-judicial procedure with appeal mechanisms in place.
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1979 (9) TMI 212
Issues Involved:
1. Conviction and sentencing of appellants under various sections of IPC and Prevention of Corruption Act.
2. Prosecution case and defense stand.
3. Findings of the Special Judge.
4. Findings of the Judicial Commissioner.
5. Arguments presented by appellants' counsel.
6. Analysis of evidence and final judgment.
Issue-wise Detailed Analysis:
1. Conviction and Sentencing of Appellants:
The appellants were convicted and sentenced by the Special Judge, Panaji, under various sections of the Indian Penal Code (IPC) and the Prevention of Corruption Act. The specific sections included Sections 120B(1), 420, 468, 471, and 109 of IPC, and Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act. The sentences ranged from rigorous imprisonment for two years to fines, with default sentences of additional imprisonment.
2. Prosecution Case and Defense Stand:
The prosecution alleged that the appellants conspired to cheat the government by presenting inflated bills for the deepening and widening of the Kumbarjua canal, resulting in excess payments. The defense argued that the work was executed in good faith, with A-1 claiming he acted under the assurance of the Secretary, I.L.D., and A-2 stating the bills were based on the volume of work done, not labor engaged.
3. Findings of the Special Judge:
The Special Judge found that:
- The work was started by A-2 before the tender was accepted.
- A-1 was directed to execute the work departmentally, and concurrence from P.W.D. was obtained.
- A-2 carried out the work with his own labor, and no muster roll was maintained by A-1.
- A-1 signed and forwarded summaries prepared by A-2 for payment.
- Muster rolls and registers were prepared after the work's completion to support false bills.
The Special Judge concluded that the appellants conspired to cheat the government by presenting false bills, resulting in an excess payment of Rs. 4,41,249.75.
4. Findings of the Judicial Commissioner:
The Judicial Commissioner upheld the findings of the Special Judge except for the actual amount spent, which he determined was Rs. 76,247.43 based on entries in books recovered from A-2's house. The conviction and sentences were confirmed.
5. Arguments Presented by Appellants' Counsel:
The appellants' counsel argued that:
- The tender submitted by A-2 was accepted by the government.
- The work executed was worth the amount paid, and the findings of the lower courts were based on conjectures.
- The prosecution failed to prove beyond reasonable doubt that the number of laborers employed was less than stated in the summaries.
- The discrepancies in the number of laborers were based on witnesses' impressions long after the work was executed.
6. Analysis of Evidence and Final Judgment:
The Supreme Court analyzed the evidence and found that:
- The prosecution failed to prove beyond reasonable doubt that the number of laborers employed was less than stated.
- The findings of the lower courts were based on suspicion and irregularities but not on concrete evidence.
- The disparity in the figures of work done and the amount paid could not be conclusively proven to indicate fraud.
The Supreme Court concluded that the charge could not be sustained due to the lack of proof of the falsity of the entries in the documents. The appeals were accepted, and the conviction and sentences were set aside, acquitting the appellants of all charges.
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1979 (9) TMI 211
Issues:
1. Allegations of gender discrimination in promotion.
2. Unconstitutionality of service rules regarding marriage and promotion.
3. Seniority concerns post-promotion.
Analysis:
Issue 1: Allegations of gender discrimination in promotion
The petitioner, a senior member of the Indian Foreign Service, alleged gender bias in the denial of her promotion to Grade I. She highlighted instances of discrimination against women in the service, including attempts to dissuade her from joining, unfavorable treatment during interviews, and the requirement to resign upon marriage. These actions were deemed violative of Articles 14 and 15 of the Constitution, which prohibit discrimination based on sex. The court expressed concern over the persistence of gender prejudice in the service rules despite constitutional mandates, emphasizing the need for equal treatment and justice for all individuals.
Issue 2: Unconstitutionality of service rules regarding marriage and promotion
The judgment scrutinized two specific rules in the Indian Foreign Service regulations that were deemed discriminatory against women. Rule 8(2) required female members to seek government permission before marriage and risk resignation if family commitments interfered with their duties. Similarly, Rule 18 restricted the appointment of married women to the service. The court criticized these rules as misogynistic and in violation of Article 16, emphasizing the importance of gender equality in all spheres of employment. The government later acknowledged the need to delete these rules to eliminate gender bias from the service regulations.
Issue 3: Seniority concerns post-promotion
After the initiation of the legal proceedings, the petitioner was eventually promoted and appointed as an Ambassador. However, concerns regarding the seniority of the petitioner compared to junior officers who were promoted ahead of her were raised. The court acknowledged the significance of seniority in the petitioner's career progression and directed the government to review her seniority status to ensure fairness and justice. The court emphasized the importance of addressing grievances related to seniority to ensure that all employees can contribute effectively to the country.
In conclusion, while dismissing the petition, the court highlighted the persistent issue of gender discrimination in service rules and emphasized the need for a comprehensive overhaul of all regulations to eliminate any traces of bias. The judgment underscored the importance of upholding constitutional principles of equality and justice in all aspects of public service, ensuring a fair and inclusive working environment for all individuals.
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1979 (9) TMI 210
Validity of provisions of the Kerala Building Tax Act, 1975 - Imposition of tax on buildings - Legislature adopted merely the floor area of the building as the basis of the tax irrespective of all other considerations - competence of the State Legislature to enact the law - method of determining the capital value of a building - Discrimination and violation of Article 14 of the Constitution - meaning of "retrospective" - Word 'appurtenances'.
HELD THAT:- We have gone through the provisions of the Municipalities Act also, in regard to the procedure and the machinery for determining the annual value of buildings. Chapter VI of Part III deals with "Taxation and Finance". Section 150 states that the rules and tables embodied in Schedule II shall be read as part of that Chapter Rules 7 provides that the value of the building for purposes of the property tax (including the annual value) shall be determined by the Commissioner. Rule 12 provides for the filing of a revision petition and Rule 13 provides for its disposal only after hearing the revision petitioner. Rule 24 provides for the filing of appeal to the Municipal Council against the Commissioner's assessment. Rule 30 provides for the appointment of Special Officer to exercise the Council's appellate power. So the Municipal Act also provides the necessary procedure and the machinery for the proper fixation of the annual value of buildings.
It has been argued that while Section 18 of the Act provides that the tax may be paid in such installments as may be prescribed, the proviso to Sub-section (1) of Section 11, which deals with appeals, renders that provision negatory as it states that no such appeal shall lie unless the building tax has been paid. The concern of the learned Counsel in advancing this argument is justified; but if the aforesaid provisions of Sections 11 and 18 are read harmoniously it would appear that if an assessee is entitled to pay the building tax in installments under the prescription referred to in Section 18, he will not be disentitled to file an appeal if he has paid those installments as and when they fall due. That is a fair and reasonable view to take of the relevant provisions of the Act, and we hold accordingly.
In the result, we find no merit in these cases and they are all dismissed without any order as to the costs. We however think it proper, in the circumstances in which all this controversy has arisen and uncertainty about the true effect of the provisions of the Act has been created, to direct that in cases where the building tax has not been assessed so far, the assessing authority may give the assessees an opportunity to produce evidence on which they may want to rely in support of their returns. In cases where the assessments have been made, but the assessees could not or did not file their appeals within the period specified therefor, we direct that they may be permitted to do so within a period of 30 days from the date of this judgment and the appellate authority may admit those appeals as the prosecution of these cases was sufficient cause for not presenting them earlier. It is clarified that if any matter is pending before the Government of Kerala under Section 3(2) of the Act, it will be permissible for that Government to dispose it of according to the law. So also, in cases where the High Court has given an option or opportunity to any assessee to file fresh objections before the authority concerned, under the provisions of the Act, it will be permissible for him to do so.
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1979 (9) TMI 209
Issues Involved:
1. Vested right of absorption of employees under the Karnataka Contract Carriages (Acquisition) Ordinance, 1976.
2. Legislative changes and their impact on the absorption ratio.
3. Interpretation of the saving clause in the Karnataka Contract Carriages (Acquisition) Act, 1976.
4. Automatic absorption of employees and the legal implications.
5. Retrospective effect of the new proviso under the Act.
Detailed Analysis:
1. Vested Right of Absorption of Employees:
The primary issue is whether employees of the erstwhile contract carriage operators in Karnataka acquired a vested right of absorption into the Karnataka State Road Transport Corporation (the Corporation) under Sub-clause (3) to Clause 20 of the Karnataka Contract Carriages (Acquisition) Ordinance, 1976. The court examined the legislative changes and concluded that there was no automatic absorption of employees as the process required several steps, including the determination of eligibility and willingness of employees to be absorbed.
2. Legislative Changes and Their Impact on the Absorption Ratio:
The Ordinance was replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976, which altered the ratio of absorption of employees from 7.9 per vehicle under the Ordinance to 4.45 per vehicle under the Act. This change adversely affected a large number of employees. The court noted that the legislature has the competence to restructure the Ordinance to meet the exigencies of the situation after the acquisition of contract carriages.
3. Interpretation of the Saving Clause in the Act:
The saving clause in Sub-section (2) of Section 31 of the Act states that anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the corresponding provisions of the Act. The court emphasized that the saving clause preserves only the things done and actions taken under the repealed Ordinance, not the rights and privileges acquired. Therefore, the employees did not acquire any right to absorption under Sub-clause (3) to Clause 20 of the Ordinance.
4. Automatic Absorption of Employees and the Legal Implications:
The court rejected the argument that there was automatic absorption of employees from the notified date, January 30, 1976. It was clarified that several steps, including the submission of service particulars, determination of eligibility, and willingness to be absorbed, were necessary before absorption could take place. The court held that the employees had only an inchoate right until their actual absorption.
5. Retrospective Effect of the New Proviso under the Act:
The Act, which replaced the Ordinance, was made retrospective to January 30, 1976. The new proviso to Sub-section (3) of Section 19 altered the basis of absorption and was given retrospective effect. The court concluded that the new proviso in the Act superseded the old proviso in the Ordinance, and any rights purportedly acquired under the Ordinance were nullified by the Act.
Conclusion:
The appeal and writ petitions were dismissed, with the court holding that there was no automatic absorption of employees under the Ordinance, and the new proviso under the Act, which was given retrospective effect, validly altered the absorption ratio. The court emphasized that the legislature had the authority to amend the provisions to meet the current requirements and that the saving clause did not preserve any vested rights under the repealed Ordinance.
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1979 (9) TMI 208
Issues:
Dispute over ownership of land adjacent to plaintiff's house, Misreading of material evidence by lower appellate court, Determination of land as appurtenant to plaintiff's house despite intervening lane.
Analysis:
The judgment involves a second appeal filed by the plaintiff against the decision of the lower appellate court. The plaintiff succeeded in the trial court, but the lower appellate court reversed the decision. The dispute revolved around a piece of land adjacent to the plaintiff's house, claimed by both parties as appurtenant to their properties. The plaintiff contended that the land need not be contiguous to be considered appurtenant. The lower appellate court's decision was challenged on grounds of misreading evidence and misinterpretation of the concept of appurtenance.
The appellant's counsel argued that the lower court's finding was based on conjecture and surmises rather than correct evidence evaluation. The lower court's reliance on an alleged admission by the plaintiff regarding tethering cattle inside the house was refuted by the actual statement of the plaintiff, contradicting the lower court's interpretation. The appellant highlighted contradictions in the defendants' statements and emphasized the absence of contradictions in the plaintiff's witnesses' testimonies, questioning the lower court's reliance on the location of the disputed land across a lane.
Regarding the concept of appurtenance, the appellant's counsel argued that contiguity was not a prerequisite for land to be considered appurtenant. Citing a precedent, the counsel emphasized that beneficial enjoyment of the parent property was crucial, not physical adjacency. The Commissioner's report indicated the land's proximity to the plaintiff's house and its exclusive use, supporting the appellant's claim. The judgment referenced a legal precedent to reinforce the argument that land opposite a house could be appurtenant, even with a public road in between.
The judgment concluded that the lower court's findings were based on misinterpretation and conjecture, warranting interference. The land in question, although separated by a narrow lane, was deemed appurtenant to the plaintiff's house due to its beneficial use. Consequently, the appeal was allowed, the lower court's decision was set aside, and the trial court's judgment in favor of the plaintiff was restored, decreeing the suit with costs.
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1979 (9) TMI 207
Issues Involved:
1. Validity of the notice issued under Section 148 of the IT Act, 1961.
2. Time limit for issuing the notice under Section 148.
3. Jurisdiction of the ITO to issue the notice.
4. Approval from the Commissioner under Section 151(2).
5. Concurrent jurisdiction under Section 125A.
6. Ownership of the duplicate books of account.
7. Application of mind by the CBDT in granting approval.
Detailed Analysis:
1. Validity of the Notice Issued Under Section 148:
The writ petition challenges the notice dated 9th March 1973, issued by the ITO, District VI(13), New Delhi, on the grounds that income chargeable to tax for the assessment year 1961-62 had escaped assessment within the meaning of Section 147(a) of the IT Act, 1961. The ITO had issued a notice on 25th March 1970 under Section 148 of the Act on the grounds that certain income for the assessment year 1961-62 had escaped assessment. This notice was later found to be invalid due to the lack of prior permission from the Commissioner as required by Section 151(2) of the Act. Consequently, the proceedings initiated under Section 147(a) were quashed. However, a new notice was issued on 13th March 1978, which specifically mentioned that it had been issued after the necessary satisfaction of the CBDT.
2. Time Limit for Issuing the Notice Under Section 148:
Section 149 of the Act provides a time limit for issuing notices under Section 148. For cases falling under Section 147(a), no notice shall be issued if eight years have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to Rs. 50,000 or more, in which case a notice can be issued within 16 years. The relevant assessment year being 1961-62, the 16-year period expired on 31st March 1978. The notice given on 9th March 1978 was therefore within time. The argument that the income assessed on 19th March 1974 was Rs. 45,000 and hence the 8-year limit applied was rejected because the order of 19th March 1974 was set aside, and a new assessment on 23rd October 1975 found the undisclosed income to be more than Rs. 50,000.
3. Jurisdiction of the ITO to Issue the Notice:
The ITO issued the impugned notice on 13th March 1978 based on the assessment order of 23rd October 1975, which showed that the escaped assessable income was more than Rs. 50,000. The argument that the ITO had no jurisdiction to reassess the income was rejected. The ITO had the jurisdiction to issue the notice under Section 148, as the previous assessment order had been set aside, and a new assessment had been made, which showed the concealed income to be more than Rs. 50,000.
4. Approval from the Commissioner Under Section 151(2):
The AAC had earlier quashed the notice issued on 25th March 1970 because it was issued without the prior permission of the Commissioner as required by Section 151(2). However, the new notice issued on 13th March 1978 specifically mentioned that it had been issued after the necessary satisfaction of the CBDT. The affidavit filed by the IAC and the original file showed that the reasons mentioned by the ITO were duly scrutinized by the CBDT, and the approval was given after applying full mind.
5. Concurrent Jurisdiction Under Section 125A:
Section 125A empowers the Commissioner to direct that the powers or functions conferred on or assigned to the ITO under the Act be exercised or performed concurrently by the IAC. The ITO, District VI(13), had concurrent jurisdiction with the IAC, Range 2(c). The argument that the ITO had no jurisdiction to issue the notice was rejected, as there was no direction from the IAC restricting the ITO's jurisdiction to issue the notice under Section 148.
6. Ownership of the Duplicate Books of Account:
The assessment proceeded on the basis that the duplicate books of account belonged to the assessee. The ITO's order of 23rd October 1975 and the Tribunal's findings confirmed that the duplicate books belonged to the assessee-firm. The contention that the duplicate books were not of the assessee was rejected, as the ownership of the books had already been concluded by the IT authorities.
7. Application of Mind by the CBDT in Granting Approval:
The affidavit by the IAC and the original file showed that the reasons mentioned by the ITO were duly scrutinized by the CBDT, and the approval was given after applying full mind. The reasons recorded by the ITO on 1st August 1977 for seeking permission to issue the notice clearly mentioned that the assessee was carrying on money-lending business, and interest income was recorded in the duplicate books of account, which were not produced before the Department. The belief of the ITO on the material before him was found to be rational and not illusory or dishonest.
Conclusion:
The petition challenging the notice issued under Section 148 was dismissed with costs. The Court found no merit in the petition, as all the conditions precedent for the issue of notice under Section 148 were complied with, and the ITO had the jurisdiction to issue the notice. The approval from the CBDT was given after applying full mind, and the ownership of the duplicate books of account was conclusively established.
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1979 (9) TMI 206
The appeal was against a penalty of Rs. 500 imposed by the IAC under s. 272A(2)(a). The appellant paid the full tax amount before the deadline and had a valid reason for the delay in filing the return due to the illness of the accountant. The penalty was deemed unjustified and cancelled. The appeal was allowed.
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1979 (9) TMI 205
Issues Involved:
1. Categorization of land into two blocks for compensation.
2. Consideration of previous judgments and sale transactions.
3. Granting of interest on solatium.
4. Enhancement of compensation for landowners.
Summary:
1. Categorization of Land into Two Blocks for Compensation:
The State of Haryana challenged the classification of land into two blocks by the Collector and the Additional District Judge, arguing that no adequate reason was provided for this categorization. The court found merit in this argument, noting that the land was acquired in a long strip for a highway and could not be evaluated based on proximity to the village Sat Rod. The classification was deemed arbitrary and unsustainable, leading to the conclusion that the land must be evaluated uniformly.
2. Consideration of Previous Judgments and Sale Transactions:
The State contended that the Additional District Judge wrongly ignored Exhibit P.W. 1/14, a judgment by the District Judge, Hissar, regarding a similar acquisition. The court agreed with the Additional District Judge's reasoning that the evidence in the present case was more substantial, including multiple sale deeds from 1973, which were not present in the previous case. Thus, the court rejected the State's contention.
3. Granting of Interest on Solatium:
The State argued that interest should not be granted on the solatium, relying on the case of Union of India v. Ram Mehar. The court clarified that the Ram Mehar case dealt with the term "market value" in a specific context and did not apply to the present case. It was held that solatium is an integral part of the compensation, and interest is payable on the entire compensation, including solatium, as per Section 28 of the Land Acquisition Act.
4. Enhancement of Compensation for Landowners:
The landowners' cross-objections for enhanced compensation were found to be valid. The court noted that the sale instances (Exhibits P. 4, P. 7, and P. 8) indicated a higher market value of Rs. 12,000 per acre around the time of acquisition. The Additional District Judge's reduction of this value to Rs. 9,000 for 'A' block and Rs. 6,000 for 'B' block was deemed unjustified. Consequently, the court awarded compensation at a uniform rate of Rs. 12,000 per acre, along with statutory solatium and interest.
Conclusion:
All eleven Regular First Appeals by the State were dismissed, and the cross-objections by the landowners were allowed, enhancing the compensation to Rs. 12,000 per acre with solatium and interest. The landowners were also entitled to their costs.
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1979 (9) TMI 204
Issues:
1. Whether the disputes raised by the plaintiff are referable to the arbitrator already appointed by the defendants?
2. Relief sought by the plaintiff.
Detailed Analysis:
Issue 1:
The plaintiff filed a petition under Section 20 of the Arbitration Act seeking the filing of the arbitration agreement and the appointment of an arbitrator. The contract between the parties contained an arbitration clause, and disputes arose, leading to the plaintiff invoking the arbitration clause. The Chief Engineer appointed an arbitrator to decide on some disputes but not all. After the plaintiff's acquittal in a related prosecution, the plaintiff requested the appointment of an arbitrator for additional disputes. The defendants argued that the application under Section 20 was not maintainable as the arbitrator had already entered the reference, and the additional disputes raised by the plaintiff were time-barred. The court framed the issue of whether the disputes raised by the plaintiff were referable to the arbitrator already appointed by the defendants.
Issue 2:
The plaintiff filed an application under Section 5 of the Limitation Act for condonation of delay in filing the petition under Section 20 of the Arbitration Act. The plaintiff contended that there was no specific limitation period for filing such a petition until a court decision clarified the applicability of Article 137 of the Limitation Act. The court held that the plaintiff had a bona fide impression regarding the limitation period and that there was sufficient cause for the delay in filing the petition. Consequently, the court admitted the petition beyond the prescribed limitation period.
Conclusion:
The court determined that the disputes raised by the plaintiff were referable to arbitration as they fell within the scope of the arbitration clause. It was established that the disputes had not been previously referred to an arbitrator, and therefore, the plaintiff's application under Section 20 of the Arbitration Act was maintainable. The court directed the Chief Engineer to appoint a new arbitrator for all disputes detailed in the plaintiff's letter, excluding those already pending before the current arbitrator. The decision highlighted the significance of adherence to the arbitration agreement and the procedural requirements under the Arbitration Act.
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1979 (9) TMI 203
Issues Involved:
1. Validity of transfer of shares and super-structure in a co-operative housing society without a registered instrument.
2. Applicability of Section 42 of the Gujarat Co-operative Societies Act, 1961, to the transfer of shares and immovable property.
3. Distinction between tenant co-partnership society and tenant ownership society.
4. Requirement of compulsory registration under Section 17 of the Registration Act, 1908.
Issue-wise Detailed Analysis:
1. Validity of Transfer of Shares and Super-structure Without a Registered Instrument:
The primary issue was whether a registered document is necessary for transferring the super-structure standing on land allotted by a co-operative society to its members. The court examined the validity of the transfer of shares and the super-structure from Girish to the plaintiff without a registered instrument. It was established that Girish was the original allottee of the super-structure on Plot No. 8 from Santosh Co-operative Housing Society and had transferred his shares to the plaintiff with the society's approval. The court noted that the transaction was not effected by a registered instrument, thus not satisfying Section 17 of the Registration Act, 1908.
2. Applicability of Section 42 of the Gujarat Co-operative Societies Act, 1961:
Section 42 exempts from compulsory registration instruments relating to shares in a society, even if the society's assets include immovable property. The court highlighted that Section 42(a) carves out an exception to the rule enunciated in Section 17(1)(b) and (c) of the Registration Act, 1908. This exemption applies to shares in a co-operative society, extending the same exemption that Section 17(2)(ii) of the Registration Act provides to shares in a joint stock company.
3. Distinction Between Tenant Co-partnership Society and Tenant Ownership Society:
The court made a clear distinction between tenant co-partnership societies and tenant ownership societies. In a tenant co-partnership society, the land and buildings vest in the society, and members are allotted houses for occupation and enjoyment. The transfer of shares in such a society inherently includes the transfer of the member's interest in the immovable property. Conversely, in a tenant ownership society, the land belongs to the society, but the super-structure belongs to the member personally. Thus, the transfer of the super-structure in a tenant ownership society requires a registered instrument.
4. Requirement of Compulsory Registration Under Section 17 of the Registration Act, 1908:
The court examined the necessity of compulsory registration for the transfer of immovable property. Section 17(1)(b) and (c) of the Registration Act mandates registration for non-testamentary instruments transferring immovable property. However, Section 42(a) of the Gujarat Co-operative Societies Act, 1961, exempts such transfers within a co-operative society from this requirement. The court concluded that in a tenant co-partnership society, the transfer of shares, including the member's interest in the immovable property, does not require a registered instrument due to the exemption provided by Section 42(a).
Conclusion:
The court answered the referred question affirmatively for tenant co-partnership societies, where the land and super-structure belong to the society, and negatively for tenant ownership societies, where the super-structure belongs to the member personally. The matter was sent back to the single judge for final decision in light of this answer. The transfer from Girish to the plaintiff was deemed valid under the exemption provided by Section 42(a) of the Gujarat Co-operative Societies Act, 1961.
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1979 (9) TMI 202
Issues Involved:
1. Authority of a statutory tenant to assign tenancy rights.
2. Interpretation of Section 15(1) of the Bombay Rent Act.
3. Applicability of the proviso to Section 15(1) to statutory tenants.
4. Relevance of the Supreme Court judgments in Anand Nivas Pvt. Ltd. v. Anandji and Damadilal v. Parashram.
Summary:
Issue 1: Authority of a Statutory Tenant to Assign Tenancy Rights
The primary question was whether a statutory tenant, Gopalkrishna, could validly assign his tenancy rights to the plaintiff, Pujari. The court held that a statutory tenant possesses only a right to remain in possession and does not hold any transferable or heritable estate or interest in the premises. This view was affirmed by the Supreme Court in Anand Nivas Pvt. Ltd. v. Anandji, which stated that statutory tenants cannot transfer their tenancy rights.
Issue 2: Interpretation of Section 15(1) of the Bombay Rent Act
The court examined whether the assignment of tenancy rights could be valid under the proviso to Section 15(1) of the Bombay Rent Act. It was concluded that Section 15(1) and its proviso apply only to contractual tenants and not to statutory tenants. The statutory tenant's tenancy is per se not transferable, and the prohibition against transfer and assignment under Section 15(1) does not apply to them.
Issue 3: Applicability of the Proviso to Section 15(1) to Statutory Tenants
The court rejected the argument that the proviso to Section 15(1) could validate the assignment by a statutory tenant. The proviso and Sub-section (2) of Section 15 were found to be applicable only to contractual tenants. This interpretation was affirmed by a larger Bench of the Supreme Court in J. S. Murarji v. Sovani.
Issue 4: Relevance of Supreme Court Judgments
The court analyzed the conflicting views in Anand Nivas Pvt. Ltd. v. Anandji and Damadilal v. Parashram. It was held that the decision in Anand Nivas case, which states that statutory tenants have no transferable interest, remains binding. The court found that the interpretation of Sections 12 and 15 of the Bombay Rent Act in Anand Nivas case was not overruled by Damadilal's case, which dealt with the heritability of statutory tenancy under a different enactment.
Conclusion:
The court concluded that the assignment of tenancy rights by the statutory tenant, Gopalkrishna, to the plaintiff, Pujari, was not valid and effective. Consequently, the plaintiff's suit was dismissed, and the landlord's petition was allowed. The rule was made absolute with costs throughout.
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1979 (9) TMI 201
Issues Involved:
1. Legality of the compulsory retirement order.
2. Allegations of mala fide intent.
3. Adverse entries in the confidential report and their communication.
4. Applicability of the principles of natural justice.
5. Review Committee's role and its consideration by the Government of India.
Issue-wise Detailed Analysis:
1. Legality of the Compulsory Retirement Order:
The Supreme Court upheld the legality of the compulsory retirement order passed by the Government of India under Rule 16(3) of the All India Service (Death-cum-Retirement) Rules, 1958. The Court emphasized that the rule confers an absolute right on the Central Government to retire a member of the service in public interest, provided the member has completed 30 years of qualifying service or attained the age of 50 years, and the order is issued with at least three months' notice. The Court clarified that compulsory retirement is neither a punishment nor a stigma, and it does not attract the provisions of Article 311(2) of the Constitution. The objective of the rule is to maintain a high standard of efficiency and to weed out officers who are inefficient or of doubtful integrity.
2. Allegations of Mala Fide Intent:
The Court rejected the allegations of mala fide intent against the Chief Minister of Andhra Pradesh, who was alleged to have influenced the compulsory retirement order. The Court noted that Reddy had withdrawn all allegations of mala fide against the Chief Minister in a previous writ petition. Furthermore, the Court found no evidence of victimization or arbitrariness in the impugned order. The history of Reddy's service, including his promotions and reinstatement, did not support the claim of mala fide intent.
3. Adverse Entries in the Confidential Report and Their Communication:
The Court addressed the argument that the compulsory retirement order was based on non-existent materials, as adverse entries in Reddy's confidential report were not communicated to him. The Court clarified that not all adverse entries need to be communicated under the rules. Remarks based on general reputation or personal supervision by superior officers may not be communicated. The Court found that Reddy's overall service record, including assessments of his integrity and efficiency, justified the compulsory retirement order.
4. Applicability of the Principles of Natural Justice:
The Court held that Rule 16(3) expressly excludes the application of the principles of natural justice. The rule grants the Government an absolute right to retire a government servant in public interest without the need for a formal inquiry or hearing. The Court reiterated that compulsory retirement under this rule does not involve any civil consequences or stigma, and therefore, the principles of natural justice do not apply.
5. Review Committee's Role and Its Consideration by the Government of India:
The Court examined the role of the Review Committee and its consideration by the Government of India. It was contended that the Government did not consider the Review Committee's report before passing the compulsory retirement order. The Court found that the report of the Review Committee was indeed considered by the Government, as evidenced by the confidential file and the note sheet signed by the Home Minister. The Court emphasized that the recommendations of the Review Committee are not binding on the Government, but they must be considered before making a decision.
Conclusion:
The Supreme Court allowed the appeals, set aside the order of the Andhra Pradesh High Court, and restored the compulsory retirement order of Reddy. The Court found no legal error in the impugned order, which was justified under Rule 16(3) and in consonance with the law laid down by previous decisions. The Court rejected all contentions raised by Reddy's counsel, including allegations of mala fide intent and the applicability of the principles of natural justice. The appeals were allowed without any order as to costs.
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1979 (9) TMI 200
Issues Involved:
1. Whether the order of termination was passed by way of punishment, thereby violating Article 311(2) of the Constitution.
2. Whether the termination order was violative of Article 16 of the Constitution due to discriminatory treatment.
3. Whether the termination order was passed with mala fide intent.
4. Whether the respondent had become a permanent employee under Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956.
5. Whether the termination order violated the provisions of Article 235 of the Constitution.
Detailed Analysis:
1. Violation of Article 311(2) - Termination as Punishment:
The High Court held that the respondent should be deemed confirmed in his post as his work was satisfactory and a vacancy was available, thus making the termination order a violation of Article 311(2). However, the Supreme Court disagreed, stating that the rule does not imply automatic confirmation after the probationary period. The court emphasized that the respondent continued in an officiating capacity without an express order of confirmation. The termination was thus not by way of punishment but a simple notice of termination, permissible under the terms of employment. The Supreme Court referenced previous judgments, including *State of Punjab v. Dharam Singh* and *Kedar Nath Bahl v. State of Punjab*, to support the necessity of an express order for confirmation.
2. Violation of Article 16 - Discriminatory Treatment:
The respondent argued that he was purposefully picked for discharge while his juniors were retained, violating Article 16. The Supreme Court found no substance in this argument, noting that no other officers from the same batch had been confirmed by 1971, and the respondent's service record was not satisfactory. The court emphasized that the order was not arbitrary or discriminatory.
3. Mala Fide Intent:
The High Court did not hear arguments on mala fides, and the Supreme Court also found no substantial argument on this point. The respondent's allegations of ill-feeling and ill-will by superior officers were not supported by specific allegations or evidence. The court reiterated that adverse remarks in the respondent's service record justified the termination, and no hostile discrimination was alleged against the High Court or Government officials involved in the decision.
4. Permanent Employee Status under Rule 4(2)(iv):
The High Court held that the respondent should be deemed confirmed under Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. The Supreme Court disagreed, clarifying that the rule does not provide for automatic confirmation after the probationary period. The court emphasized that the respondent continued in an officiating capacity, and no express order of confirmation was made. The Supreme Court referenced *State of Punjab v. Dharam Singh* and *Kedar Nath Bahl v. State of Punjab* to support this interpretation.
5. Violation of Article 235:
The High Court decided this point against the respondent. The Supreme Court did not find it necessary to delve into this issue further, given the conclusions on the other points.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment, and dismissed the respondent's Writ Petition. The court held that the termination was not by way of punishment, was not discriminatory, and did not violate Articles 311(2) or 16 of the Constitution. The respondent was not deemed confirmed in his post, and the termination was permissible under the terms of his temporary appointment. The Supreme Court also addressed the procedural aspects of examining official records, emphasizing that such scrutiny is warranted only when a prima facie case is made by the government servant.
Separate Judgment:
Justice Pathak concurred with the judgment but expressed reservations about the observations related to the entitlement of a government servant to information from official records. He emphasized that the court should scrutinize records when a prima facie case is made, but declined to do so in this case due to the lack of substantial allegations by the respondent.
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1979 (9) TMI 199
Issues:
1. Interpretation of the term "cotton fabrics" for tax exemption.
2. Determination of whether fused collars and shoulder straps qualify as cotton fabrics.
3. Analysis of relevant case laws to support the contention of the assessee.
4. Examination of the manufacturing process and its impact on tax exemption eligibility.
5. Consideration of the requirement for textiles to be manufactured on powerlooms for tax exemption.
Analysis:
The judgment revolves around the interpretation of the term "cotton fabrics" for tax exemption under the U.P. Sales Tax Act. The assessee, a manufacturer of fused collars and shoulder straps, sought exemption on the basis that these articles were cotton fabrics. The court analyzed the definition of "textile" and "cotton fabric" to determine eligibility for exemption. Reference was made to the case of Porrilts & Spencer (Asia) Ltd. v. State of Haryana, establishing that any woven fabric made of cotton qualifies as a textile. The court considered whether the manufacturing process of fused collars altered their character as cotton fabric, citing relevant case laws to support the contention.
The judgment also delved into the case of Narasimha Agencies v. State of Tamil Nadu, where the issue of collar stiffening material being classified as cotton fabric was discussed. The court highlighted the importance of the manufacturing process in determining tax exemption eligibility. Additionally, the judgment referenced the case of Punjab Business and Supply Co. Pvt. Ltd. v. State of Maharashtra to differentiate between irregular cloth pieces and cotton fabric.
Furthermore, the court examined the requirement for textiles to be manufactured on powerlooms for tax exemption. While acknowledging that the raw materials used in manufacturing fused collars might be produced on powerlooms, it was concluded that the fused collars themselves were not manufactured on powerlooms. Therefore, the assessee could not claim exemption for the fused collars based on this criterion.
In conclusion, the court dismissed the appeal, ruling against the assessee's claim for tax exemption on fused collars and shoulder straps. The judgment emphasized the significance of the manufacturing process and adherence to specific criteria, such as production on powerlooms, for eligibility for tax exemption.
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1979 (9) TMI 198
The judgment by the Allahabad High Court in 1979 (9) TMI 198 dealt with a case where an assessee's appeal was dismissed as time-barred. The assessee filed an application under Section 5 of the Limitation Act, supported by a medical certificate due to low blood pressure. The court held that the assessee had a sufficient cause for the delay in filing the appeal, as he was acting in good faith based on medical advice. The revisions were allowed, and the assessee was granted costs of Rs. 200 and the Standing Counsel was granted a fee of Rs. 100.
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1979 (9) TMI 197
Issues Involved:
1. Whether a court taking cognizance of an offence u/s 11 of the Essential Commodities Act, 1955, upon a police report, is precluded from looking into the complaint or first information report.
2. Whether the police report submitted u/s 173 of the Code of Criminal Procedure, 1973, satisfies the requirements of Section 11 of the Essential Commodities Act for taking cognizance of an offence.
Summary:
Issue 1: Cognizance of Offence and Scope of Review by the Court
The primary issue was whether a court taking cognizance of an offence u/s 11 of the Essential Commodities Act, 1955, upon a police report, is precluded from looking into the complaint or first information report filed before the court. The appellants argued that the police report did not disclose any offence and the court was not competent to look into any other paper while taking cognizance of the offence u/s 190 of the Code read with Section 11 of the Act. The Division Bench of the Patna High Court held that Section 11 was fully complied with when the Executive Magistrate submitted his report to the Sub-Divisional Magistrate, who then directed the police to investigate.
Issue 2: Compliance with Section 11 of the Essential Commodities Act
Section 11 of the Act stipulates that no court shall take cognizance of any offence punishable under the Act except on a report in writing of the facts constituting such offence made by a public servant. The court examined whether a police report submitted u/s 173(2) of the Code, disclosing an offence under the Act, satisfies the requirements of Section 11. It was determined that the police officer, being a public servant, and his report in writing, as required by Section 173(2), would satisfy Section 11. The court referenced the case of Pravin Chandra Mody v. State of Andhra Pradesh, which held that a police report by a public servant suffices for compliance with Section 11.
Additional Considerations:
The court also addressed the argument that the court could only look at the police report and not any other documents to fill in any lacuna. It was concluded that the report u/s 173(2) must contain specific details, and the court can consider the report along with its accompaniments for taking cognizance of the offence. The court found that the charge-sheet in this case contained sufficient information for the Sub-Divisional Magistrate to take cognizance of the offence and proceed with the trial.
Conclusion:
The appeal was dismissed, affirming that the police report submitted u/s 173(2) of the Code, along with its accompaniments, provided sufficient basis for the magistrate to take cognizance of the offence under Section 7 of the Essential Commodities Act, 1955.
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1979 (9) TMI 196
Issues Involved:
1. Vested right of absorption of employees.
2. Legislative changes and their impact.
3. Interpretation of saving clauses and rights under repealed ordinances.
Summary:
1. Vested Right of Absorption of Employees:
The primary issue was whether the employees of the erstwhile contract carriage operators in Karnataka acquired a vested right of absorption in service with the Karnataka State Road Transport Corporation (KSRTC) u/s 20(3) of the Karnataka Contract Carriages (Acquisition) Ordinance, 1976. The Court concluded that there was no automatic absorption of employees as several steps were required to determine eligibility and willingness for absorption. The employees did not acquire any vested right to absorption under the ordinance.
2. Legislative Changes and Their Impact:
The Karnataka Contract Carriages (Acquisition) Ordinance, 1976, was replaced by the Karnataka Contract Carriages (Acquisition) Act, 1976, which altered the ratio for absorption of employees. The ordinance prescribed a ratio of 7.9 employees per vehicle, including conductors, while the Act reduced it to 4.45 employees per vehicle, excluding conductors. The Court held that the Act, being retrospective, replaced the ordinance's provisions from the date of its promulgation, thereby altering the basis of absorption.
3. Interpretation of Saving Clauses and Rights Under Repealed Ordinances:
The saving clause in s. 31(2) of the Act preserved actions taken under the repealed ordinance but did not preserve abstract rights. The Court emphasized that the mere right to take advantage of the repealed ordinance's provisions is not a right accrued. The saving clause was intended to preserve only the things done and actions taken, not the rights and privileges acquired under the ordinance. The Court found that no action was taken under the ordinance that would grant the employees a right to absorption.
Conclusion:
The appeal and writ petitions were dismissed, with the Court holding that the employees did not acquire a vested right to absorption under the ordinance, and the legislative changes made by the Act were valid and effective from the date of the ordinance's promulgation. There was no order as to costs.
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1979 (9) TMI 195
Issues Involved:
1. Status and nature of possession of a tenant under a void lease.
2. Whether such a tenant can be forcibly evicted by the landlords.
3. Right of the tenant to defend possession through a suit for declaration and mandatory injunction.
Issue-wise Detailed Analysis:
1. Status and Nature of Possession of a Tenant under a Void Lease:
The appellant company was accepted as a tenant by the respondents, even though the first lease was executed by the third respondent. The first lease expired on 31st August 1953, and the appellant continued as a tenant, paying rent which was accepted by the respondents. When the second lease was attempted through a consent decree, it was found void for want of registration. Despite this, the appellant continued in possession and paid rent, which was accepted by the respondents. The court held that the appellant continued to be a tenant because the void lease did not alter the nature of its possession. The appellant was in possession as a statutory tenant, enjoying protection under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The court referenced the case of Anand Nivas Private Ltd. v. Anandji Kalyanji Pedhi & Ors., highlighting that a statutory tenant enjoys the status of irremovability.
2. Whether Such a Tenant Can Be Forcibly Evicted by the Landlords:
The court ruled that the appellant, as a tenant, could not be forcibly evicted. The respondents' attempt to take possession by locking a portion of the premises on 29th February 1960 was unlawful. The court emphasized that the appellant was entitled to protect its possession unless evicted through due legal process. The High Court's reliance on Section 53A of the Transfer of Property Act was misplaced, as the appellant was not relying on part performance but on its status as a tenant. The court clarified that the appellant's possession was protected under the Rent Restriction Act, and a void lease did not convert the tenant into a trespasser.
3. Right of the Tenant to Defend Possession through a Suit for Declaration and Mandatory Injunction:
The appellant was entitled to defend its possession through a suit for declaration of its tenancy rights and for an injunction against the respondents. The trial court had correctly decreed in favor of the appellant, recognizing its status as a tenant and protecting its possession. The appellate courts erred in dismissing the appellant's suit by misinterpreting the legal implications of the void lease and the provisions of the Rent Restriction Act. The Supreme Court restored the trial court's judgment, affirming the appellant's right to protect its possession as a tenant.
Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the High Court and the first appellate court, and restored the trial court's judgment in favor of the appellant. The appellant was recognized as a tenant entitled to protection under the relevant Rent Restriction Act and could not be forcibly evicted without due legal process. The court also overruled the preliminary objection regarding the defective certificate granted by the High Court, emphasizing the substantial question of law involved.
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1979 (9) TMI 194
Issues: Assessment of taxable turnover based on rejection of account books.
Analysis:
The case involves a revision under Section 11(1) of the U.P. Sales Tax Act for the assessment year 1971-72 by a partnership firm dealing in pipes and pipe fittings. The net turnover declared by the assessee was initially &8377;1,19,610.00, which was later increased to &8377;16,00,000.00 by the Sales Tax Officer, then reduced to &8377;12,00,000.00 in appeal, and further reduced to &8377;10,10,000/- by the Revising Authority. The Revising Authority rejected the account books of the assessee based on various grounds, including failure to submit returns, non-production of stock details during surveys, discrepancy in turnover figures, and non-cooperation during surveying. The assessee challenged these reasons before the court through legal representation.
The court analyzed each ground for rejection of the account books presented by the Revising Authority. Firstly, the failure to file a return by the assessee was considered insufficient to justify the rejection of accounts, as it would typically lead to a penalty rather than rejection of books. Secondly, the non-production of stock details was addressed, highlighting that a stock register is not a primary account but an extract from other accounts maintained by the assessee. The court referred to a precedent to support the argument that rejection of accounts solely based on the absence of a stock register is not legally justified.
Regarding the non-production of account books during surveys, the court cited previous judgments where the mere absence of books during surveying did not render the maintained account books unreliable. The court emphasized that non-cooperation during surveys may lead to penalties but does not automatically warrant the rejection of account books. The court noted that in the present case, there was no clear finding of evasion or deliberate non-cooperation with surveying officers.
Ultimately, the court found merit in the assessee's argument and decided to remand the case back to the Revising Authority for a fresh decision, particularly focusing on the discrepancy in turnover figures between the assessment chart and the books. This remand was deemed necessary to ensure a comprehensive reevaluation of the acceptance or rejection of the account books in light of legal precedents and the specific circumstances of the case. The court allowed the revision, set aside the previous order, and referred the matter back to the Revising Authority for a lawful reconsideration without imposing any costs on either party.
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