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Case Laws
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1976 (3) TMI 256
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... ... ..... y the maximum fixed by the 1935 Act and the Municipal Council of Agra will be entitled to collect tax on trade or calling at the rate fixed in Ex. H, hut subject to the maximum of Rs. 50/- per person, as already explained. For the second period from the date of the Constitution up to the date of the Mahapalika Act II of 1959, the maximum leviable by way of tax on trade or calling by the Mahapalika will be Rs. 250/- per person. The post Mahapalika Act period will also be controlled by the same constitutional maximum of Rs. 250/- per person, unless any supervening parliamentary legislation, as contemplated by Section 172 of that Act, comes into being. 12. In this view, we allow the appeal in apart, i.e. for the period subsequent to the passing of the Mihapalika Act, 1959 and permit the Mahapalika to levy taxes-as per Exhibit H and Section 172 upto a maximum of Rs. 250/-. Subject to the extent of this modification, the appeal is allowed. Parties will bear their costs throughout.
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1976 (3) TMI 255
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... ... ..... ity under Section 28 of the Act, and that the liability could be enforced under the provisions of the Revenue Recovery Act. (see Sections 6 and 62 of the T.C. Act). 13. The appellants became entitled to get licenses from the Government which had to perform its duty to execute written agreements and grant licenses as soon as the appellants fulfilled required conditions by paying up the remainder of the amounts due. The Government had performed its part of the bargain and even allowed the appellants to selling liquor. The appellant to start also became liable and bound to perform their corresponding obligations under the conditions of the auctions. Imposed in pursuance of statutory provisions. This reciprocity of obligations, quite apart from its basis in agreement, had thus acquired an operative force resting on statutory sanction and equity. 14. Consequently, we affirm the view of the Kerala High Court and dismiss this appeal. 15. Parties will bear their own costs throughout.
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1976 (3) TMI 254
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... ... ..... ted that the Income Tax Officer had written at one time to the Income Tax Authorities at Bombay that he was of opinion that there was no ground for initiation of the re-assessment proceeding that does not, in my opinion, prevent the Income Tax Officer from coming to the belief on proper material that the assessment required to be reopened. So long as it is not established that the Income Tax Officer had surrendered his judgment or abandoned his discretion, it cannot be said that the Income Tax Officer acted at the behest of others. On the materials in the petition I am unable to accept the proposition that the Income Tax Officer was acting at the behest of others. In the aforesaid view of the matter, the challenge to the notice on this ground must also fail. 8. In the premises this application fails and is dismissed. The Rule nisi is discharged. Interim order, if any, is vacated. There will be no order as to costs. 9. The prayer for stay of operation of this order is refused.
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1976 (3) TMI 253
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... ... ..... es had caused miscarriage of justice. We therefore think that these irregularities have vitiated the trial and conviction of the appellant. 26. Further question to be considered is Should the case be sent back for retrial? Again answer to this question in the circumstances of the case, must be in the negative. Firstly, the appellant on account of his acquittal on the graver charge under Section 5(1) of the Prevention of Corruption Act, stands exonerated of the allegation that he made these entries with any motive or intention to gain a pecuniary advantage. Secondly, his co-accused stands acquitted of all the charges. Thirdly, these proceedings against the accused commenced as far back as May 13, 1959 and the appellant has suffered enough privation, harassment and expense which is a necessary concomitant of protracted criminal proceedings. 27. For the foregoing reasons, we allow this appeal, set aside the conviction, accord the benefit of doubt to the appellant and acquit him.
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1976 (3) TMI 252
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... ... ..... nted out by the High Court be liable for them. 16. There is also no substance in the last contention advanced on behalf of the appellant. The legal position is well settled that in the absence of proof of misappropriation or fraudulent or improper conversion by the manager of a joint family a coparcener seeking Partition is not entitled to call upon the manager to account for his past dealing with the family property. The coparcener is entitled only to an account of the joint family property as it exists on the date he demands partition. In the instant case there being on evidence to establish any misappropriation or fraudulent conversion of the joint family property by Kota Venkatachala Pathy during the period he acted as Karta of the family. We are unable to interfere with the direction issued by the High Court which is just and proper. 17. For the foregoing reasons, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to coats.
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1976 (3) TMI 251
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... ... ..... learned Sub-ordinate Judge ought not to have passed the instalment decree. We are not here going into the question as to the circumstances under which the instalment decree came to be passed as it is unnecessary to do so. It is common ground that from the 21st of Sept., 1970 to this date, no instalment has been paid as directed by the Court below. This itself is sufficient proof that the defendants are not anxious to pay even the admitted amount by taking advantage of the instalment decree made by the Court below. Having regard to the wilful default committed by the defendants in the matter of paying the decree amount and obeying the orders of the court, we set aside this part of the judgment and decree the suit with costs in the usual manner. 16. App. No. 779 of 1970 is allowed with costs and App. No. 520 of 1972 is dismissed with costs and the appellants in App. No. 520 of 1972 will pay the court fee due to Government on the appeal memorandum thereon. 17. Order accordingly.
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1976 (3) TMI 250
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... ... ..... rt has failed to draft the decree in accordance with Order 20, Rule 15 and Form 21 as stated above. The decisions cited by Mr. Raja Masilamani, learned counsel for the respondents dealt with cases wherein the statutory rights of the parties have not been properly considered by the Court. In such circumstances, it has been held that the decree cannot be amended under Sec. 151 and Sec. 152 C.P.C. but the remedy lies only by way of appeal and review petition. As far as the present case is concerned, it is the duty of the court to draft the decree in accordance with Order 20, Rule 15 C.P.C. and Form No. 21 The mistake committed by the Court has to be rectified only under Sections 151 and 152 C.P.C. No authority has been cited contra to this proposition stated by me. 6. Thus, it is clear that the trial Court has failed to exercise its jurisdiction vested in it by law. In these circumstances, the revision petition is allowed. There will be no order as to costs. 7. Revision allowed.
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1976 (3) TMI 249
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... ... ..... ll the circumstances of the case, the Tribunal misdirected itself in law in not condoning the delay, in the present case and its decision is vitiated by a jurisdictional error inasmuch as the correct principles have not been applied and the material evidence on record has been misread. Having regard to an overall view of all the material circumstances of the case, in my judgment, no conclusion other than that there was sufficient cause for the delay in filing the petition could have been reasonably arrived at and in view of all the relevant facts and circumstances, the delay ought to have been condoned. 9. In the result, the revision application succeeds and is allowed. The delay in filing the claim petition is condoned and the claim petition is ordered to be restored to the file of the Tribunal. The Tribunal is directed to take up the claim petition for hearing on an expeditious basis. There will be no order as to costs in the circumstances of the case. 10. Petition allowed.
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1976 (3) TMI 248
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... ... ..... an injunction, and then to base proceedings for contempt on any subsequent breach", the observation is made "Where, however, there is an express direction or undertaking in the body of the order, a breach will enable an immediate application for committal to be made". In the same volume, at page 44 (para 75) we find the law thus stated o p /o p An undertaking given to the court by a person or corporation in pending proceedings, on the faith of which the court sanctions particular course of action or inaction, has the same force as an in-junction made by the court and a breach of the undertaking is misconduct amounting to contempt. o p /o p 6. The case before us being a case of a deliberate violation of an undertaking to the court the effect was the same as that of breach of an injunction. o p /o p 7. consequently, finding ourselves in agreement with the High Court, we affirm the judgment and order of the High Court and dismiss this appeal with costs. o p /o p
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1976 (3) TMI 247
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... ... ..... market value is taken because it is presumed to be the true value of the goods to the purchaser. One of the principles for award of damages is that as for at possible he who was proved a breach of a bargain to supply what he has contracted to get is to be placed as far as money can do it, in as good a situation as if the contract had been performed. The fundamental basis thus is compensation for the pecuniary loss which naturally flows from the breach. Therefore, the principle is that as far as possible the injured party should be placed in as good a situation as if the contract had been performed, In other words, it is to provide compensation for pecuniary loss which naturally flows from the breach. The High Court correctly applied these principles and adopted the contract price in the facts and circumstances of the case as the correct basis for compensation. 23. For these reasons, the judgment of the High Court is affirmed. The appeals are dismissed with one set of costs.
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1976 (3) TMI 246
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... ... ..... f oxford. Said the learned Chief Justice Time hath its revolutions; there must be a period and an end to all temporal things-an end of names, and dignities and whatsoever is terrne, and why not of De Vere? For where is Bohun? Where is Mortimer ? Where is Mortimer ? Why, which is more and most of all, where is Plantagenet ? They are all entombed in the urns and sepulchers of mortality." What was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them." one feels tempted to add that if life like a dome of many colored glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down. The appeal fails and is dismissed but in the circumstances without costs. Appeal dismissed.
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1976 (3) TMI 245
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... ... ..... which had not been repelled by any evidence. In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us. 11. Consequently, this appeal is dismissed with costs.
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1976 (3) TMI 244
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... ... ..... gree before us that as regards these three wagons, one wagon relates to the third contract and the two other wagons relate to the first contract. The contract price agreed to between the parties under the third contact was ₹ 425/- and the contract price under the first contract was ₹ 360/- per 100 tins. There is no dispute about it. There is equally no dispute that at or about the time when the breach was committed by the defendant the market price of the goods was about ₹ 450/- per 100 tins. Computing the damages in terms of money the defendant would be liable to pay a sum of ₹ 3075 only as and towards the suit claim. We agree with the finding of the lower only the quantum of damages has been worked. The appeal is therefore allowed in part with costs. The defendant appellant should suffer a decree only for a sum of ₹ 3075 with the usual interest from the date of suit till the date of payment with proportionate costs thereon. 17. Appeal allowed.
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1976 (3) TMI 243
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... ... ..... isions just referred to, I must hold that Section 106 of the Transfer of Property Act does not say that the notice must be sent by registered post or that notice sent by post under certificate of posting would be illegal. There can be no doubt that the notice under Section 106 of the Transfer of Property Act may also be sent by post under certificate of posting. I cannot hold that the words "sent by post" in Section 106 of the Transfer of Property Act would mean "sent by registered post" alone. Section 27 of the General Clauses Act does not say that if an ejectment notice under Section 106 of the Transfer of Property Act is sent by post, it must be sent by registered post alone. I find no substance in the contention of Mr. Bhattacharya, his last ground in this appeal. 8. In the result, the appeal is dismissed with costs in favour of the respondent. 9. Mr. Bhattacharya prays for leave to appeal under Clause 15 of the Letters Patent. The prayer is rejected.
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1976 (3) TMI 242
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... ... ..... temple or of the Sansthan for the purpose of maintenance of the worship. (6) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gulal' ceremony. (7) Holding out of the Sansthan to all intents and purpose as a public temple. (8) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restriction. (9) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as, a private property. 46. While each case of endowment as to its character depends on the particular history, tradition and facts, the presence of the above features in the instant case lead to the inescapable conclusion that Shri. Vithal Rukhamai Sansthan at Amalner is a public trust within the meaning of Section 2 (13) of the Act. 47. In the result the appeal fails and is dismissed. We will, however, make no order as to costs. Appeal dismissed.
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1976 (3) TMI 241
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... ... ..... er-affidavit filed by the State Government in the High Court concedes expressly, as it ought, that considering the fact that the person entitled to the use of a land may be prevented from using it by reason of a mining lease or permit, Rule 67 provides for the payment of compensation to him for such deprivation. When the right to conduct a mining operation is auctioned by the Government the person who is otherwise entitled to the user of the land, say for agricultural purposes, is deprived of its user and the object of Rule 67 is to ensure that he should be compensated adequately for the deprivation of such user. We have no doubt that in cases where it becomes necessary for the District Officer to fix the compensation under Rule 67, he would be having due regard to all relevant factors, particularly the length of deprivation entailed by the conduct of mining operations. For these reasons, we confirm the judgment of the High Court and dismiss the appeal with Appeal dismissed.
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1976 (3) TMI 240
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... ... ..... esh High Court would indicate that the opinions cannot be said to be very firm or even final. Apart from this, it is not known whether all the uses which are mentioned in the definition of "oil-seeds" were brought to the notice of the National Chemical Laboratory, Poona and of the Central Food Technological Research Institute, Mysore, in rendering their opinions. If, therefore, the Tribunal in the facts and circumstances of the case held that the particular commodities came within the definition of clause (vi) of section 14 of the Central Act, it is not possible to hold that it was not right. The answer to the first question by the High Court is, therefore, rightly in the affirmative. We do not also see anything wrong in the High Court's answering the second question in the way it did. The appeals, therefore, fail and are dismissed. There will be no order as to costs. We are thankful to Mr. Gobind Das for assisting the Court as amicus curaie. Appeals dismissed.
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1976 (3) TMI 239
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... ... ..... unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court. After all, even the question of jurisdiction to re-open what is claimed to be a closed enquiry will, and must, be considered by the Managing Director. On this score, we dismiss the appeal but, in the circumstances, without costs. o p /o p Before parting with this case, we would like to make it clear that counsel for the co-operative bank has not been able to show any power to suspend an employee pending an enquiry. If that be so, the suspension of the appellant is plainly without the pale of law and he would be entitled to his salary during the period till final orders are passed. Since the matter has been pending long enough, we are assured by counsel for the respondent that final orders may be passed within one month from to-day. o p /o p M.R. Appeal dismissed. o p /o p
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1976 (3) TMI 238
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... ... ..... ut that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act.’ Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable.' This passage has, in our opinion, no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel. The contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted. The High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam. In the result, the appeal, fail and are dismissed with cost, limited to one set. Appeals dismissed.
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1976 (3) TMI 237
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... ... ..... atory mood. Should we have at all hinted to the advocates to resolve by negotiation or stick to our traditional function of litigative adjudication? In certain spheres, 'judicious irreverence' to judicialised argumentation is a better homage to justice Regrettably, the exercise proved futile and we have to follow up our conclusions with necessary directions. The findings we have reached may now be formally set down. We hold that the Bonus Act (as it stood in 1965) does not bar claims to customary bonus or those based on conditions of service. Secondly we repel the plea of res judicata. There is no merit in the view that the Industrial Tribunal has no jurisdiction to try the dispute referred to it. We set aside the award and direct the Tribunal to decide on the merits the subject-matter of the dispute referred to it by the State Government. The appeal is hereby allowed but, having regard to the over-all circumstances, the parties will bear their costs. Appeal allowed.
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