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1987 (9) TMI 433
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... ... ..... A person residing anywhere in the country being aggrieved by an order of government Central or State or authority or person may have a right of action at law but it can be enforced or the jurisdiction under Article 226 can be invoked of that High Court only within whose territorial limits the cause of action wholly or in part arises. The cause of action arises by action of the government or authority and not by residence of the person aggrieved. 5. Coming to the facts of the case the petitioner was a Junior Warrant Officer in Air Force. When he was posted at Madras he was superseded. He seeks a direction to opposite parties to decide his representation and grant him status of Warrant Officer. He was never posted in this State. Therefore, no cause of action arose in this State which could entitle petitioner to approach this Court to issue a direction to opposite party whose office is situated in Delhi. 6. In the result this petition fails and is dismissed as not maintainable.
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1987 (9) TMI 432
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... ... ..... appellant was under threat of eviction by the title paramount, that the rule of estoppel under Section 116 of the Evidence Act applied and therefore he was not entitled to dispute the title of the respondent. Furthermore, the appellant having on December 4, 1980 after being served with the notice of eviction attorned to the head lessor, there came into existence a direct tenancy. It has been brought to our notice that the appellant has since that date been paying rent to his present lessor Krishnamurthy and is not in arrears of rent. The order of eviction passed by the learned Chief Judge as well as the High Court against the appellant under Section 10(2)(i) and (vi) of the Act is not sustainable in law. 7. In the result, the appeal succeeds and is allowed. The proceedings for eviction of the appellant from the demised premises under Section 10(2)(i) and (vi) and 10(3)(b)(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 are quashed. No costs.
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1987 (9) TMI 431
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... ... ..... common stand taken 'by the learned counsel is correct. The language of Sub-rules '(4) and (5) is clear and there does not appear to be any doubt that on my finding that the case is governed by Sub-rule (3) and not Sub-rule (2), Sub-rule (4) is excluded and the question has to be answered by reference to Sub-rule (5). As directed by this sub-rule, in a case falling under Sub-rule (3) "the period of absence from duty shall not be treated as a period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purpose". The authority concerned has issued a necessary direction in this regard and there is no reason to interfere with it. 17. In the result, the punishments imposed by the order in Annexure-34 are set aside, but the prayer of the petitioner for quashing the remaining part of the said annexure is rejected. The writ application is, accordingly, allowed in part. The parties shall bear their own costs.
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1987 (9) TMI 430
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... ... ..... )ELT714(Bom) the latter following the two earlier judgments, interest was awarded at the rate of 12% on excise duty which was collected without the authority of law. In the circumstances of the case and in the interest of justice it would be just and fair to award to the petitioners interest at the rate 12% per annum from the date the duty was collected till payment. 12. The issues are answered as follows 13. There will be a decree in favour of the plaintiffs and against the defendants for payment to the plaintiffs of excise duty collected on the cost of transportation of the plaintiffs' goods from their factory to the premises of the wholesale dealers for the period 31st May, 1973 to 7th January, 1975 together with interest thereon at the rate of 12% per annum from the date of collection of duty till payment and costs of the suit. By consent, the quantum of such excess duty collected to be determined by the Assistant Collector Division G-I, Bombay as hereinbefore stated.
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1987 (9) TMI 429
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... ... ..... otect his/their possession. As stated earlier, the appellants are always ready and willing to perform their part of the contract, and therefore, they are entitled to the protection of Sec. 53-A of the Transfer of Property Act to protect their possession. It is not the case of the respondents that either they repudiated the contract with a notice to the appellants or called upon the appellants to perform the contract, and they refused to do the same. Under these circumstances no limitation began to run for the enforcement of the contract, and therefore, mere lapse of three years from the date of agreement does not automatically put an end to the contract. Accordingly I do not find any illegality in the possession of the appellants. The Court below has committed grievous error, on the facts in this case, to grant a decree of possession. The appeal is accordingly allowed. In view of the circumstances of the case, each party is directed to bear their own costs. 8. Appeal allowed.
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1987 (9) TMI 428
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... ... ..... he same monthly rent as agreed between the assessee-company and the HUF. This was the object of granting loan on cheaper interest. The HUF could not manage the construction of the floors within the fund granted by the assessee-company and accordingly the assessee-company granted the additional fund of ₹ 2,50,000 on the same interest. As the funds were granted in the business interest of the assessee even though there were no agreements for the additional funds or the assessee-company paid higher interest, the interest could not be disallowed. 11. The answers to the questions referred to the Third Member are, therefore, as follows - (1) The rent received by the assessee on the facts and circumstances of the case from the bank was business income. (2) The interest on the extra amount of ₹ 2,50,000 should be allowed as a deduction. The matter is referred to the Bench to pass the order so that a final order can be passed after taking the view of the majority decision.
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1987 (9) TMI 427
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... ... ..... roved by the Supreme Court in Dinabandhu v. Jadumoni AIR 1954 SC 411 . But where, as here, such admission has been made on condonation of delay with express notice to and after hearing the respondent, we would have no jurisdiction to reconsider the same at a later stage and the objection by Mr. D. Roze as to the appeal being time-barred could have been repelled on this ground alone. But in view of the importance of the questions raised by Mr. D. Roze, we have thought it advisable not to dispose of the objection on such technical ground alone and, as indicated hereinbefore, those objections fail on substantial grounds also. The appeal, in our view, was accordingly rightly admitted in exercise of the power conferred by Section 5 of the Limitation Act and even otherwise, the order of admission is no longer open to challenge. 27. Let this appeal now be placed for hearing on merits two weeks after the vacation. Respondent to pay to the appellant 20 G. Ms. as costs of this hearing.
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1987 (9) TMI 426
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... ... ..... favourable to the assessee the factory was reopened. Therefore, it is clear that the active use of the plant and machinery, though was not during the years, the passive use was and it cannot be said that the plant was closed and, therefore, the plant and machinery etc. were not entitled for depreciation. Several decisions had been cited from both the sides. After considering the arguments and those decisions it is clear from the facts that there was only a temporary suspension of the business and, therefore, the assessee was entitled for depreciation for the passive use of its building, plant, machinery and electric installations. Under the said circumstances, the question referred to the Third Member is answered as below - "In the facts and in law the assessee was entitled to the depreciation on the building, plant, machinery and electric installations." The matter is referred back to the Division Bench for passing the order after considering the majority decision.
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1987 (9) TMI 425
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... ... ..... ssee could be entitled to the deduction otherwise not. We do not find the necessary facts being determined by either the ITO or the AAC or the Tribunal on the basis of which this question can be decided by applying the test indicated. This question cannot, therefore, be answered at this stage without necessary facts and the Tribunal will have to decide the same afresh after determining the necessary facts giving opportunity, if necessary, to the parties, to adduce further evidence for this purpose. 8. Consequently, the reference is answered as under- Question 1 is answered, in assessee's favour and against the revenue by holding that the expenses incurred by the assessee in providing snacks etc. is an allowable deduction. Question 2 does not arise for our decision for the reasons given above. Question 3 is answered in favour of the revenue and against the assessee by holding that the Tribunal was justified in the view that surtax liability is not a permissible deduction.
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1987 (9) TMI 424
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... ... ..... on. We fail to see as to how the decision is of any help to him. All that the case decided, analysing the provisions of Section 13 of the Act, was that Order 41, Rule 23 of the Civil P. C. has no application to appeals under the Orissa House Rent Control Act and that the appellate authority has no power to remand in appeal. The decision has only relied on the earlier decisions of this Court and has rather reiterated the view that the provisions of C.P.C. would be applicable unless their application is excluded expressly or by necessary implication. It was held that the provisions of Order 41, Rule 23, C.P.C. are inconsistent with Section 13 of the Act which cast an obligation on the appellate authority to decide the appeal even after making further enquiries himself, if necessary. 11. Both the submissions raised by Mr. Panigrahi having failed, both the writ petitions have no merit and are accordingly dismissed with costs. Hearing fee is assessed at ₹ 200/- 12. I agree.
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1987 (9) TMI 423
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... ... ..... s and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance. 15. In the result, we allow the appeal, reverse the judgment of the High Court and restore that of the trial court. 16. In the circumstances of the case, the parties to bear their own costs.
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1987 (9) TMI 422
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... ... ..... nferred by sub-section(3) of Section 1 of the Orissa Forest Produce (Control of Trade) Act, 1981 (orissa Act 22 of 1981), the State Government do hereby direct that the Act shall come into force at once in the whole of the State of Orissa in relation to sal seeds. " This notification has been validated under Section 5 of the ordinance not withstanding any judgment, decree or order of any Court to the contrary. It shall be deemed to have been issued in respect of sal seeds also grown or found in Government forests. It shall be valid and effectual as if it were issued under Section 1(3) of the Act as amended by the ordinance. This validation, in our opinion is more than sufficient to make it operative to cover the contracts of the petitioners. It does not suffer from any infirmity. The impugned ordinance is, therefore, valid and cannot be challenged on any ground. In the result, these petitions fail and are dismissed, but we make to order as to costs. Petitions dismissed.
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1987 (9) TMI 421
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... ... ..... among the States to adjust such legislation according to its needs. This Court and the High Court should also be relieved of the heavy burdens of this rent litigations. Tier of appeals should be curtailed. Laws must be simple, rational and clear. Tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants. Litigations must come to end quickly. Such new Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker procedure should be examined. This has become an urgent imperative of today's revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude. For the reasons aforesaid the contentions urged in writ petitions fail and are accordingly dismissed. In the facts and circumstances of the case there will be no order as to costs. Interim orders if any are vacated. Petition dismissed.
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1987 (9) TMI 420
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... ... ..... ing of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. See the observations, in Re a Solicitor 1945 K.B . 368 at 371 of the report . After all an arbitrator as a Judge in the words of Benjamin N. Cardozo, has to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". F Indeed reading the award of the arbitrator, one would say that he acted reasonably and rationally. In the premises the award of the arbitrator was assailed on trivial grounds and the challenge was rightly rejected by the High Court. The respondent is entitled to the costs of the challenge upto the High Court. So far as the costs of this petition to this Court is concerned, parties are directed to bear their respective costs. The petition for leave to appeal is, therefore, dismissed and the leave refused. Petition dismissed.
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1987 (9) TMI 419
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... ... ..... r 5, 1972, and also at the stage of ₹ 810 in the revised scale of ₹ 650-1200 w.e.f. October 5, 1973 or from any subsequent date upto March 31, 1978, the date of his superannuation, are quashed. We direct the Director General of Works to make an order in terms of FR 25 allowing the appellant to cross the efficiency bar at the stage of ₹ 590 w.e.f. October 5, 1966 and at the stage of ₹ 810 w.e.f. October 5, 1973 and subsequent dates, according to the decision of the Government of India, Ministry of Finance dated September 21, 1967 as later clarified by the Ministry of Home Affairs Memorandum dated April 6, 1979 and to re-fix his salary upon that basis and pay the difference, as also re-fix his pension accordingly. The appellant would be entitled to interest at 12 per annum on the difference in salary as well as in pension. We further direct that the Government of India will make the payment to the appellant within four months from today. Appeal allowed.
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1987 (9) TMI 418
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... ... ..... within a period of five years, and in case she does the first option should be given to the appellant to purchase the property. We further direct that the decree for eviction will not be executed upto 31st of August, 1988 provided the appellant files an undertaking to this Court in the usual form within four weeks from this date. We also direct that the occupation charges or mesne profits from 1st of August, 1987 should be paid to the respondent No. 1 at the rate of ₹ 800 per month and the first of such payment should be made on the 30th September, 1987 and each subsequent payment should be made on 15th of each subsequent month. In default of filing the undertaking or not making the payment as hereinbefore indicated the order of eviction will become executable forthwith. The appeal, therefore, fails and it is dismissed subject to the conditions indicated hereinbefore. In the facts and circumstances of this case, the parties are directed to pay and bear their own costs.
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1987 (9) TMI 417
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... ... ..... on the way of the learned Judicial Magistrate to consider that the charge brought by the opposite party against the petitioners was groundless. It was not possible on his part to act as the prosecutor and suo motu adjourn the case to another date to the utter detriment of the interest of the petitioners who stood accused with the Sword of Democles hanging on their heads. Patently, the learned Sessions Judge did not examine the above aspects and did not notice the Division Bench case of this Court and so he erroneously held that the learned Judicial Magistrate did not assign any reason although, as a matter of fact, specific reasons for discharging the petitioners have been assignee in the order of the learned Judicial Magistrate. The impugned order being erroneous on facts and law cannot be supported. 5. In the result, the criminal revision is allowed. The impugned order of the learned Sessions Judge is set aside and the order of the learned Judicial Magistrate is restored.
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1987 (9) TMI 416
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... ... ..... the facts of this case. It was urged before us that an award affecting the immovable properties which was not registered and which was made outside the court could not form the basis of an award and an unregistered award, in other words could not form the basis of the award. We are unable to accept that position. There is no dispute to the proposition that an award affecting immovable properties as in the instant case should be registered. It is therefore, not necessary to discuss in detail the ratio of A the decision of the Full Bench of the Andhra Pradesh High Court in M. Venkataratnam v. M. Chelamayya, A.I.R. 1967 Andhra Pradesh In the aforesaid view of the matter the judgment and order of the High Court cannot be sustained and are set aside. The appeal is allowed and the order of the Sub- Registrar, Arambagh dated 24th of June, 1985 is restored. In the facts and circumstances of the case, however, the parties are directed to pay and bear their own costs. Appeal allowed.
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1987 (9) TMI 415
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... ... ..... thing substantial has been achieved. I need not refer to those steps as my learned brother has referred to them in detail. No law or authority can succeed in removing the pollution unless the people cooperate. To my mind, it is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. This Court issued notices to them but in spite of notice many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. We are therefore issuing the directions for the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent. We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.
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1987 (9) TMI 414
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... ... ..... take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to moratorium. The employee would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to Court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. Ordinarily the successful parties should have been entitled to costs but in view of the fact that they are going back to employment, we do not propose to make orders of costs against their employers. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves alive to the human problem involved in it. Petitions and Appeals allowed.
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