9911796707
TMI Blog1984 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner-accused was in the employment of respondent No. 1 company (hereinafter referred to as "the company") from June, 1962, to June 30, 1981, when his services were terminated. While the petitioner was in the employment of the company, the company entrusted and allotted to him Flat No. 43 in a building known as "Sherman" situate at Narayan Dabholkar Road, Malabar Hill, Bombay 400 006, which the company had taken on lease from one J. R. Dalal at a monthly rent of Rs. 750 which was subsequently raised to Rs. 1,125. The said flat was acquired by the company for the purpose of accommodating its officers and for their residential accommodation during the period of their employment. The company had allotted the said flat to the petitioner for his occupation during the period of his employment. The company by its letter dated June 30, 1981, terminated the services of the petitioner. The company called upon the petitioner to vacate and hand over vacant possession of the flat, and warned him that in case he did not vacate the flat, appropriate proceedings would be taken against him. The petitioner instead of vacating the flat filed a suit in the Court of Small Causes at Bombay, being R.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule to the Constitution included houses and buildings and that it was the State Legislature alone which was competent to legislate in that respect, and, therefore, it was the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which was applicable to the premises occupied by the petitioners in that case and not the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The learned counsel specifically referred to paragraphs 73 to 75 appearing at pages 621 and 622 of the said decision. The said paragraphs read as follows: "Mr. Seervai further argued that the 'transfer of property' must, therefore, mean transfer of every kind of property, movable and immovable, corporeal and incorporeal, tangible and intangible. It is a general entry covering transfer of every kind of property. The entry 'land' which includes the relation of landlord and tenant and the collection of rent falls in the entry 'land', but this does not deprive the entry 'transfer of property' of its content. The element of transfer involved in the relation of landlord and tenant and the collection of rent is a small part of the law of transfer. Every kind of property other than land and/or lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to him, the pith and substance of the legislation has to be taken into consideration and the provisions of the Companies Act cannot be struck down for want of legislative competence in case they slightly transgress the area. He submits that section 630 of the Companies Act is in respect of affairs of a company. It provides penalty for wrongful withholding of property by the employees of a company and, taking into consideration the pith and substance of the legislation, it cannot be said to be beyond the legislative competence of Parliament. Section 630 of the Companies Act, 1956, reads as follows: "Penalty for wrongful withholding of property. (1) If any officer or employee of a company ( a )wrongfully obtains possession of any property of a company; or ( b )having any such property in his possession, wrongfully with holds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by this Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees. (2) The court trying the offence may also order such officer or employee to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding anything in clauses (2) and (3)' used in clause (1) and ' notwithstanding anything in clause (3)' used in clause (2) and ' subject to clauses (1) and (2)' used in clause (3) have been introduced with a view to emphasise that in case there is any conflict in regard to the subject-matters of legislation, that is, if there are matters which fall in both the Parliamentary and the State fields, then (subject to the doctrine of pith and substance, enunciated by courts of law), the State legislative authority must yield place to the parliamentary legislative authority. Ours is a federal Constitution and it is now well-recognised that both Parliament and the State Legislatures have full, independent and plenary powers in their own fields. It is equally well-recognised that the first duty of court when interpreting any entry in the respective list, is to interpret that entry in its plain, natural and grammatical meaning and to read it in its fullest and widest amplitude. This is the first task which is to be performed. If, on interpreting the entries in the aforesaid manner, any conflict is found between the two sets of entries respectively falling in the two different lists, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assages relied on by the learned counsel and reproduced above are of no help for deciding the point for consideration in this case. In that case, the vires of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, were challenged. In the present case, the challenge is to the provisions of section 630 of the Companies Act, 1956, as far as they apply to immovable property. It is not disputed that Parliament is competent to legislate in the matter of companies under entries 43 and 44 appearing in List I Union List of the Seventh Schedule to the Constitution. As per entry 95 of the said List, Parliament can legislate in respect of the offences against laws with respect to any of the matters in that list. Section 630 of the Companies Act reproduced above provides penalty for the wrongful withholding of property by any officer or employee of a company. The powers of Parliament to legislate in respect of the affairs of a company relating to immovable property are in no way curtailed by entry 18 appearing in List II State List of the Seventh Schedule to the Constitution. Consequently, I reject the contention of the learned counsel for the petitioner-accused that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither expedient nor necessary to stay the criminal proceedings pending the decision of the declaratory suit filed by the petitioner. The contention of the learned counsel for the petitioner-accused that as there is a dispute between the parties as to whether the petitioner is a tenant and is entitled to the protection of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and the Court of Small Causes at Bombay has the exclusive jurisdiction to decide the point, the criminal court had no jurisdiction to entertain and continue the proceedings under section 630 of the Companies Act, 1956, cannot be accepted. The plea of tenancy is not at all open on the facts of this case. The flat in question belonging to the company was occupied by the petitioner during the term of his employment with the company and he was entitled to occupy it only during his employment with the company. After the termination of his services with the company, he could not claim to continue to occupy the premises on the ground that he was a tenant thereof. While considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament to legislate section 630 of the Companies Act, 1956, in respect of immovable property of a company. He submitted that as the present petition was based on new grounds, it was not necessary for the petitioner to make mention of the petition filed by him earlier under section 482, Cr PC, and withdrawn by him. I am unable to agree with the learned counsel for the petitioner-accused. The petitioner had earlier filed a petition under section 482, Cr PC, for quashing the criminal case pending against him in the court of the learned Metropolitan Magistrate, and he withdrew that petition and filed the present petition under the same provision, that is, section 482, Cr PC, for quashing the proceedings of the same criminal case. Therefore, the subject-matter of this petition and the earlier petition filed is the same, though in the present petition, the petitioner has raised a ground which he had not raised in the earlier petition. I fully agree with the learned counsel for respondent No. 1-complainant that the petitioner should have mentioned in the petition the fact of filing of the earlier petition and the withdrawal thereof. In this connection, a reference may be made to the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the remedy requires that those who seek it must approach the court in perfect good faith and place all the material facts before the court. Otherwise the court might be misled to pass orders the consequences of which may be far reaching and even irreparable. What acts are material in a particular case would necessarily depend on the nature of the order, direction or writ sought. Where, as here, the court has reason to be satisfied that there has been a deliberate concealment of facts so as to deceive it, the court will decline to consider the merits and reject the application. The rule stated by Viscount Reading C. J. is very salutary. Having regard to all the circumstances in which the affidavit was made, we deem it necessary to adopt that rule and give effect to it. .........It may be as well to add that the reason for the adoption of the rule is not to arm an applicant's opponent with a weapon of technicality against the former but to provide an essential safeguard against abuse of the process of the court." The petitioner who approaches this court invoking the extraordinary jurisdiction under section 482, Cr PC, and article 227 of the Constitution must be very careful abou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
