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1977 (11) TMI 149
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... ... ..... any right to claim any of the reliefs in this suit because of the total failure of his cause of action. It would be sufficient for us to say that none of these arguments was advanced in the appeal before the High Court and we do not find it possible to allow them to be raised in this second appeal for the first time. Even otherwise, the arguments have no bearing on the appeal before us. 21. There is thus no merit in this appeal and it deserves to be dismissed. It may however be mentioned that the High Court, perhaps by inadvertence, confined the decree for compensation at the rate of Rs. 5,275/- per month to the plaintiff who was, however, not the sole licensor. The plaintiff and defendant No. 3 being joint promises are equally entitled to the said compensation. Except for this modification in the impugned judgment and the decree of the High Court, the appeal fails and is dismissed. There will however be no order as to the costs of this Court in the circumstances of the case.
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1977 (11) TMI 148
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... ... ..... that it has not abandoned its intention to make the acquisition on payment of a part of the compensation out of public revenues. It may also be mentioned that Mr. S. T. Desai appearing on behalf of the State has categorically stated at the Bar that the State Government will contribute Rs. 45,980/-, from the public revenues, towards compensation at the appropriate time. The position would no doubt have been different if it had been shown that the Government had abandoned the intention to do so or had decided not to pay any part of the compensation out of the public revenues, for then the requirement of the second proviso to Sub-section (1) of Section 6 would not have been fulfilled but, as has been shown, this was really not so. 13. It would thus appear that the High Court committed an error of law interfering with the judgment of the trial court. The appeal is allowed with costs and the impugned judgment and decree are set aside and the decree of the trial court is restored.
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1977 (11) TMI 147
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... ... ..... e of the Division Bench which had, there fore, no occasion to consider the reasons give by H. R. Khanna C. J. in the case of Gangs, Ram (supra). For all the above reasons, we are of the opinion that the view expressed by the Division Bench .regarding the conflict between S. 121(1) of the Corporation Act and S. 7(2) of the Rent Control Act cannot be accepted as laying down the correct law. 13. For the foregoing reasons, our answer to the second question mentioned by B. C. Misra J. is in the affirmative and we accordingly hold that the land lord is entitled to recover under S. 121(1) of the Corporation Act the enhanced amount of house tax from the tenant not withstanding the contract of tenancy and the provisions of S. 7(2) and Section 4 of the Delhi Rent Control Act. No other point or question was urged before us in the Civil Petition. 14. Civil Revision Petition No. 418 of 1972, Therefore, fails and is dismissed, but in the circumstances without costs. 15. Revision dismissed.
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1977 (11) TMI 146
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... ... ..... ive remuneration fixed by the court for discharging the functions of a Receiver i.e. a sum of ₹ 75/- per month. We must add that the fact that the appellant No. 1 failed to obtain the necessary leave of the court before incurring such expenditure in the performance of his duties, is not by itself a sufficient ground for his removal from the post of Receiver. 15. For these reasons we allow this appeal, set aside the order appointing another Receiver, namely, Sri Shamsud-din and send the case back to the court below with a direction that the account etc. furnished by the appellant No. 1 shall be scrutinised and the parties shall be given an opportunity of leading such evidence as they desire in this connection and the application for removal of the Receiver should then be decided afresh and expeditiously. In the circumstances of the case the parties are directed to bear their own costs. We also direct that the suit shall be disposed of by the court below at an early date.
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1977 (11) TMI 145
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... ... ..... ce to the detriment of the accused transgressing Article 14 of the Constitution. The special Judge in any case will have to apply the well established tests for the appreciation of the accomplice's evidence. This Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors. 1975 1SCR1 held that mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that "what is necessary to attract the inhibition of the Article is that there must be substantial and qualitative difference between the two procedure so that one is really and substantially more drastic and prejudicial than the other..." In our opinion, there is no such qualitative difference in the two procedures whether a witness is examined once or twice does not in our opinion make any such substantial difference here that one of them could be described as more drastic than the other. The appeal is accordingly dismissed.
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1977 (11) TMI 144
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... ... ..... se has been established under Section 5 of the Limitation Act to justify condonation of delay in the instant case. 6. For these reasons we find no force in this application which is dismissed and consequently the memo of appeal automatically fails and is rejected as being beyond limitation with costs. 7. Before parting with this case we consider it necessary to add that in this case, as in many other cases, it has come to our notice that the Munsarim had omitted to mention in his report on the memo of appeal that it was not maintainable in the court of the District Judge. This strongly reflects on the efficiency of the Munsarim that he should have omitted to point out at the very inception by noting the valuation of the appeal that it was beyond the jurisdiction of the Mofassil Court. We, therefore, direct the District Judge to examine this matter and take appropriate action against the Munsarim concerned. A copy of this judgment shall be sent to the District Judge, Varanasi.
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1977 (11) TMI 143
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... ... ..... stances, in law, the charge is not established against the petitioner. 5. The learned Trying Magistrate accepting the prosecution case had convicted the petitioner under the Essential Commodities Act read with the Orissa Order and had sentenced him to rigorous imprisonment of two years and had directed him to pay a fine of Ks. 20001/-or in default suffer simple imprisonment for six months. The sale price of the seized rice had been directed to be confiscated. In appeal, all these directions have been upheld. On the analysis presented, the prosecution case must fail and the petitioner is entitled to acquittal. I would accordingly allow the revision application, set aside the judgment of conviction and the sentences and cancel the bail bond of the petitioner. Fines, if any paid, be refunded. As the offence has not been established, the order of confiscation should not be sustained. I would accordingly quash that direction and order that the money be refunded to the petitioner.
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1977 (11) TMI 142
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... ... ..... dian Penal Code, (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings." x x x x Since the object of the criminal conspiracy is cheating by personation under section 419 IPC punishable with imprisonment which may extend to three years, section 196A(2) is no bar to the present trial in the absence of a sanction. The fact that the accused are charged with other non-cognizable offences in the same trial cannot affect the validity of the trial. There is no merit in this appeal which is dismissed. The records shallbe despatched immediately to the trial court which will dispose of the case at an early date.
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1977 (11) TMI 141
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... ... ..... ion the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances. on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act. 39. We see no infirmity, legal or factual, in the impugned order. The appellate Court in exercising its jurisdiction had neither acted illegally nor with material irregularity, as such as held by the Supreme Court in Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad v. Ajit Prasad Tarway, (1972)ILLJ170SC , High Court's powers of revision under section 115 of the Code, cannot be invoked. 40. In view of our discussion on the various points noted above, the petitions fail and are dismissed accordingly. The petitioners shall pay the costs of the respondents. 41. Petitions dismissed.
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1977 (11) TMI 140
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... ... ..... Division Bench. BY THE COURT 77. In accordance with the majority opinion, the preliminary question is answered thus -- (1) A writ petition must, in the first instance, be placed before a Division Bench for admission, although a question of constitutional validity of a State law has been raised in it. A Division Bench is competent to admit it and also to grant interim relief, such as, stay, injunction, etc. (2) A Bench of less than five Judges cannot dismiss a petition even at the admission stage, where any question as to constitutional validity of a State law is to be determined, except in the following cases -- (i) When the question is irrelevant and, therefore, does not arise for determination. (ii) When the question has already been determined by the Supreme Court. (iii) When the question has already been determined by a Bench of at least five Judges of the High Court, and the Division Bench does not feel reconsideration of the decision by a larger Bench to be necessary.
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1977 (11) TMI 139
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... ... ..... not arise. it is necessary that Commission of Inquiry should be appointed in order to maintain and safeguard the purity of the Union and the State administration. But such Commission of Inquiry should be strictly in accordance with the, Constitution and should not affect the Centre-' State relationship. The proposal now pending before Parliament for appointment of Lok Pal to conduct such inquiries is a move in the right direction, if sufficient constitutional safeguards are provided for the institution of Lok Pal. In view of the Judgment the first issue whether the suit is maintainable is answered 'in the affirmative. Under Issue No. 2 the impugned notification is ultra vires of the powers of the Central Government conferred on it by Section 3 of the Commissions of Inquiry Act. In this view Issue No. 3 does not arise for consideration The suit has to be decreed as prayed for. ORDER In accordance with the view of the majority, the Suit is dismissed with costs. P.B.R.
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1977 (11) TMI 138
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... ... ..... , the contract was cancelled and, therefore, there was in the correspondence never any contention on behalf of the defendant that mill's pucca delivery orders were not proper tender. No case of estoppel was pleaded and I am, therefore of opinion that the plaintiff cannot raise any such plea of estoppel." The question is not one of estoppel but the inference to be, drawn from the conduct of the respondent. The pleadings as well as the conduct lead one to the conclusion that the delivery orders were in accordance with the contract which the respondent accepted, as Mills' pucca delivery orders. In the result apart from the questions of law which have been discussed in full by all the courts the appellant is entitled to succeed on the simple ground that he has established that in the cases in dispute the delivery orders were in accordance with the contracts. The is allowed with costs. ORDER In view of the majority judgment, the appeal is dismissed with costs. P.H.P.
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1977 (11) TMI 137
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... ... ..... t while deciding the competitive rights of an individual and such a co-operative society. If this is so, then in our opinion, it cannot be said that the observations made by the State Government in its appellate order dated 6th December 1971 are wholly irrelevant and extraneous to the controversy involved. 33. In any case, having regard to the provisions of Article 226 of the Constitution of India, in our opinion, this is not a fit case wherein any interference is called for in the extraordinary jurisdiction of this Court at this stage. Ultimately the State Government has remitted back the matter to the competent authority, namely, the Collector for considering the application of the society on its merits. In this view of the matter, in our opinion, this is not a fit case wherein this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution. 34. In the result, therefore, the petition fails and is dismissed with costs. 35. Petition dismissed.
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1977 (11) TMI 136
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... ... ..... a falsehood in the court as a minister with impunity and come out with the truth only as a commoner. When, however, the court is called,upon to ultimately try an offence we do not have any doubt that the matters germane to the offence under section 193 IPC alone will be taken into consideration on the materials produced by the parties and justice will be done in accordance with law. Where a Chief Minister, for reasons best known to him, relying entirely on the official channel of information denied knowledge of an event, people were bumming about, it is a matter which must go forward for a trial in public interest. Truth does not lie between two lights. Whether the appellant made a false statement before the High Court and intentionally did so will be an issue at large for trial in the criminal court. We decline to put the lid on the controversy, out of hand, since that way does not point to justice according to law. We close by saying ne quid nimis. The appeal is dismissed.
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1977 (11) TMI 135
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... ... ..... The appellants may not have written to the department separately that they would be paying duty under protest but the above marking on the A.R.I’s is adequate evidence of lodging a protest from their side. Under the circumstances the refund claim of the appellants filed on 23-11-1976 in respect of duty paid in the period 8-3-1976 to 12-3-1976 is held to be in time because the assessments had not been finalised. 2. In the above view of the matter. I set aside the order of the Asstt. Collector and sanction the refund claim if it is otherwise in order.
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1977 (11) TMI 134
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... ... ..... for payment of interest at the rate prescribed therein. Tax assessed is a debt due, and when it is not paid, interest is attracted, as provided in the statute. Payment of interest cannot be equated to or mixed up with levy of penalty. As pointed out by the Supreme Court, liability to pay interest is automatic and arises by operation of law, and when the liability is by operation of law, the question of issuing a show cause notice or of violation of principles of natural justice or fair play does not arise. In the result, the order of the Tribunal, in so far as these revisions are concerned, is confirmed and the revisions are dismissed. No costs. Advocate s fee Rs. 200 in each. We are unable to certify that any substantial question of law of general importance which, in our opinion, requires to be considered by the Supreme Court, arises in this batch of cases. The oral application for leave to appeal, made by Mr. Venkatarama Reddy, is therefore rejected. Petitions dismissed.
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1977 (11) TMI 133
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... ... ..... r were also rejected on the basis of this survey, although the Judge (Revisions) was alive to the fact that inasmuch as the survey did not disclose any incriminating material for the year in question it could not be used as a basis for rejecting the accounts of the assessee. The approach of the Judge (Revisions) is clearly wrong. As the survey did not yield anything as respects the assessment year, the fact that the dealer s account books could not be relied upon for the earlier years, was not a valid ground for rejection of the account books of the assessee for the year in question. The rejection of the account books of the assessee is based on no material on the record and rests on bare suspicion and, as such, cannot be sustained. We accordingly answer the question in the negative in favour of the assessee and against the department. The assessee is entitled to its costs which is assessed at Rs. 100. Counsel s fee is assessed at Rs. 200. Reference answered in the negative.
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1977 (11) TMI 132
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... ... ..... certain directions given by the earlier Tribunal was final so far as the Tribunal was concerned. The Tribunal, therefore, was in error in observing that no useful purpose would be served by calling for the report which the earlier Bench of the Tribunal felt was necessary, and disposing of the matter on the ground that there is ample material on record. We, therefore, set aside the order of the Tribunal and direct the Tribunal to rehear the appeals on receipt of the report either from the Assistant Commissioner or from the Commercial Tax Officer which was called for by the earlier Bench of the Tribunal. If the report is already on record, the question of calling for a report does not arise. A copy of the report may also be furnished to the assessee so that he may have an opportunity to put forth his defence. Subject to the directions given above, the impugned order of the Tribunal is set aside, but with no order as to costs. Advocate s fee Rs. 200 in each. Petitions allowed.
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1977 (11) TMI 131
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... ... ..... d in coming to the conclusion it did, but as afore- said the respondents made no attempt to file such statements. They did not even file or apply to file such statements when they went in appeal to the Assistant Commissioner of Sales Tax or in revision to the Commissioner of Sales Tax. Even there they rested content with their contention that they were not bound to file the statements. The facts and circumstances are clearly against the respondents. They had an opportunity at each stage to file these statements or at least apply that they be taken on file without prejudice to their main contention that they were not a manufacturer. They have not chosen to do so, and no equity arises in their favour as held by the Tribunal. In the circumstances, we find that the Tribunal was wrong in the view it took, and, accordingly, we answer the question which has been reframed by us in the affirmative. The respondents will pay to the applicant the costs of the reference fixed at Rs. 150.
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1977 (11) TMI 130
Whether the transaction could be held to be prudent and binding on the members of coparcenary?
Held that:- Appeal allowed. The family of Ramniranjandas Murarka became divided in status before 1932 and that in any even- a division in status was effected from the date of the document Ex. L etc. in 1932, and that even if there was a joint family in existence as the transactions were for the benefit of the family, the other coparceners cannot challenge its validity. In the result the appeal is allowed and the decree of the trial court is set aside so far as the appellants, Defendant 12 and Defendant 13, are concerned. Costs will be paid by the contesting respondents who are legal representatives of R- 12, Bimla and Rahul, and R-20 and his three sons R-42, R-43,
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