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1994 (11) TMI 450
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... ... ..... that a case had been made out. 5. The case of Bindeshwari Prasad v. Kali Singh 1978CriLJ187 , to which also has been referred by Shri Francis, has not really dealt with the point under consideration, as the legal question examined therein was whether a Magistrate possesses inherent powers to review or recall any order passed by him. Of course, the order recalled in that case was also one of dismissing of complaint under Section 203 on the ground of complainant being absent which showed that he had no interest in the matter. 6. The aforesaid being the position in law, we are of the view that the High Court erred in quashing the cognizance taken by the learned Magistrate. The appeal is, therefore, allowed by setting aside the impugned judgment. It would, however, be open to the respondents, on the matter being, further taken up by the Magistrate, to urge that no case against them has been made out, whereupon such order shall be passed by the Magistrate as deemed legal and just.
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1994 (11) TMI 449
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... ... ..... ms to take it straightaway within the purview of Article 15 of the Commercial Code. We have therefore no hesitation in holding that the liability of the appellant sought to be enforced by respondent No. 1 in execution of the decree is to be deemed as joint and common liability for which the entire properties are liable. Hence the attachment and sale of the common assets cannot be faulted with in view of the presumption arising out of Article 15 of the Commercial Code which presumption was not at all rebutted by the appellant inspite of the opportunity made available to her. 11. In the result we see no substance in this appeal which therefore deserves to be rejected. The appeal is accordingly dismissed and the impugned order dated 30th August, 1994 in Special Execution Application No. 2/91/A is hereby affirmed to the extent of the finding recorded that the objection of the intervenor, vide Exhibit 37, is devoid of any merits and thus bound to be negotiatedd. Order accordingly.
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1994 (11) TMI 448
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... ... ..... ingle Judge as affirmed by the Division Bench is clearly illegal. Thus we hold that the entire order gets vitiated by manifest errors of law. 8. It is true that this Court when exercises its discretionary power under Article 136 or passes any order under Article 142, it does so with great cure and due circumspection. But, when we are setting the law in exercise of this court's discretion, such law, so settled, should be clear and become operational instead of being kept vague, so that it could become a binding precedent in all similar cases to arise in future. Considering from this perspective, we are of the considered view that it is a case warranting interference. The orders of the High Court in the W.f. and in the LPA are set aside. The W.P. stands dismissed. The award made by the Collector under Section 28A(2) is declared as that made without jurisdiction and a nullity. Accordingly, the appeal is allowed but the parties are directed to bear their own costs throughout.
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1994 (11) TMI 447
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... ... ..... purpose" than the one contemplated by the Act. No argument was advanced before us that the case comes within the "other species" rule in Subhash Muljimal Gandhi's case (supra). (18) In the result, under the second additional point, we quash the order dated 19.10.1993 passed by the concerned authority under Section 11 refusing to revoke the order of detention and remit the petitioner's Section 11 application for fresh disposal by the same authority in accordance with law, in the light of the above decision .However, as already held while dealing with the first additional point, the revival of Section 11 application and its pendency once again, does not entitle the petitioner to the grant of any injunction that the detention order cannot be served on him in the meanwhile. Even during the pendency of Section 11 application, it is open to the authorities to execute the detention order. (19) The writ petition is partly allowed to the extent indicated above.
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1994 (11) TMI 446
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... ... ..... Provident Fund Commissioner 1989 177ITR97(SC) , we may not sustain the order of the Commissioner. In that case dues were not paid in time because of some controversy as to whether hospitals are covered by the Act. It was, therefore, contended that as the appellants would be complying with the provisions of the Act and would pay all the arrears, damages for delayed payment of the arrears may not be approved. This Court, having regard to the facts of that case, accepted the submission. The facts of the present case are entirely different. 7. We, therefore, set aside the impugned Judgment of the High Court. But then we state that the respondent would not be called upon to pay any interest on the damages as fixed by the Commissioner, if it would pay the entire amount within two months from today. On the failure of the respondent to so pay, it shall have to pay interest at the rate of 18% from today till full realization. 8. The appeal is allowed accordingly. No order as to costs.
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1994 (11) TMI 445
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... ... ..... 1993CriLJ1700 categorically rejected a similar contention with the following observations Thus on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Sessacion the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. 9. Since we are in respectful agreement with the principle so laid down the contention of the appellants in this regard must be rejected. The appeal is, therefore, dismissed.
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1994 (11) TMI 444
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... ... ..... in this country and also undertake that he will be careful and will not make such objectionable statements which either directly or indirectly scandalise the judicial system of this country. The appellant also sincerely express his regret for having made such statements in the stay application and as well as in the Transfer Petition. The appellant hereby again tenders his unconditional apology and this Hon'ble Court may kindly accept his unconditional apology and forgive him for the objectionable statements which he had made in the application before the High Court as well as in the Transfer Petition before this Hon'ble Court. 38. In view of the unqualified apology tendered by the appellant and reiterated in absolute terms by him and his learned Counsel at the bar and being satisfied that the appellant is genuinely repentant, we accept his unqualified apology but issue a strong admonition and warning to him to be more careful in future and let the matters rest there.
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1994 (11) TMI 443
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... ... ..... nd then proceed with the construction. Since the writ petition was pending, it was not open to them to proceed with the construction and then to plead equity in their favour. Under these circumstances, we will not be justified in upholding the action of the State Government or the municipality in allotting the land to PSS to the detriment of the people in the locality and in gross violation of the requirements of the Scheme. Any construction made by PSS should be pulled down and it must be brought back to the condition in which it existed prior to allotment. The Municipality is directed to pull down the construction within four weeks from today. They should place the report on the file of the Registry of the action taken in the matter. Accordingly, the appeal is allowed. The writ petition is ordered as prayed for. The law as to preservation of open spaces, buildings, lay-out schemes of public bodies, has since found elucidation in this judgment, we make no order as to costs.
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1994 (11) TMI 442
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... ... ..... oved by the report of the analyst. Samples had been taken from the place and the taking of samples and the weighing of the article seized has been spoken to by PW. 2 who is an employee of the canteen in the bus stand. The conviction under Section 20(b)(i) of the Act is therefore justified and no interference is called for. 18. Sample was seized on 9-12-1990 and the same received in Court on 18-12-1990. There has thus been no delay in producing the sample before the Court. 19. Regarding the sentence also there is no reason to interfere. Appellant had been sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹ 50,000/- and in default to undergo simple imprisonment for five months. Taking into consideration the quantity of Ganja seized from him, the sentence awarded is only reasonable. 20. For the aforesaid reasons, the conviction and sentence against the appellant are sustained and the appeal is dismissed. A reproduction from ILR (Kerala Series)
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1994 (11) TMI 441
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... ... ..... n is disposed of with the observation that Criminal Complaints No. 237 and 236 of 1994 Union of India through Awadesh Kumar Misra, Assistant Commissioner of Income-tax, Central Circle, Allahabad v. Brij Mohan Gupta shall remain stayed till disposal of the appeal before the Income-tax Appellate Tribunal. The learned counsel for the petitioner undertakes that the petitioner will not obtain any adjournment in the appeal pending before the Income-tax App ate Tribunal. Let a certified copy of this order be issued to the learned counsel for the parties on payment of usual charge within a week. Order Accordingly.
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1994 (11) TMI 440
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... ... ..... usion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8- 1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.
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1994 (11) TMI 439
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... ... ..... fee and if the same notified market area, certainly the market committee has no power to levy market fee more than once. But that is not the case here. Imposing of multiple tax is the accepted legislative policy in Sales Tax Acts. Paddy and rice, wheat and wheat flour, when separated, identified as agricultural produce and each is exigible to levy of market fee. Hydes and skins when identified as agricultural produce, merely they are treated from carease, they are not exempt from levy of market fee as the cattle was already subjected to levy of market fee. Ghee and butter are by products from milk but when milk, ghee and butter are notified as agricultural produce, each is exigible to levy of market value. 4. We, therefore, hold that cattle is an agricultural produce and exigible to levy and collection of market fee. We find no illegality in the judgment of the High Court warranting interference. The appeal is accordingly dismissed with costs quantified as ₹ 10,000/-.
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1994 (11) TMI 438
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... ... ..... Corporation could hardly be blamed for the same. 23. We are, therefore, of the view that this is not a matter where the High Court should have stepped in and substituted its judgment of the judgment of the Corporation which should be deemed to know its interests better whatever the sympathies the Court had for the prosperity of the Company. In matters commercial, the courts should not risk their judgments for the judgments of the bodies to whom that task is assigned. 24. If the situation was bad on the date of the impugned judgment, it has become worse today. Between 1988 when the IRBI gave its report and this day, the situation has worsened with the further deterioration of the machinery and the spiralling of the liabilities. To grant any indulgence to the Company at this stage will be akin to flogging a dead horse. In the circumstances, we, allow the appeal and set aside the impugned judgment of the High Court. The Corporation will now be free to proceed according to law.
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1994 (11) TMI 437
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... ... ..... transferred from the surplus area. The land which was the subject-matter of transfer was covered by Plot No. 460. The contention is well founded and must prevail. In these circumstances, we set aside the judgment of the High Court and that of the Prescribed Authority and remit the case to the Prescribed Authority to decide the surplus land in accordance with Section 12-A(d) of the Act by excluding the area which was the subject of transfer as far as possible. 2. The appeal is disposed of accordingly. Order accordingly." 9.For the above reasons, the appeal is allowed, the orders impugned herein are set aside, and the Prescribed Authority is directed to consider the respondent Phool Singh's proposal to surrender surplus land in accordance with Section 12-A of the Act and in the light of this judgment. A decision in that behalf shall be taken as expeditiously as possible having regard to the fact that this matter has been pending over a long number of years. No costs.
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1994 (11) TMI 436
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... ... ..... ies, Delhi and M/s Capital Crockery stores supporting the version of the assessee, the fact of incentive bonus having been credited in the ledger account of respective dealers, the primary onus that vested with them stood discharged. By giving a satisfactory explanation and the evidence referred to above, the onus had shifted to the revenue and the latter having failed to make enquiries from the concerned dealers whose turnover had been included by the assessee in the turnover of other dealers for the purposes of computation of incentive bonus as also having failed to collect any material against the assessee disproving their claim, the addition made by the Assessing Officer, in our view is uncalled for and unwarranted. We, therefore, hold that the Assessing officer not justified in making the additions of ₹ 24,87,111 for assessment year 1988-89 and ₹ 61,28,207 for assessment year 1989-90 on account of suppressed sales. The said additions are accordingly deleted.
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1994 (11) TMI 435
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... ... ..... ughter of any animal for religious, medicinal or research purpose subject to the condition that such slaughter does not affect the religious sentiment of the neighbours of the person or persons performing such slaughter and that the previous permission of the State Government or any officer authorised by it is obtained before the slaughter. The case of the original writ petitioners before the High Court was based on religious sentiments and, therefore, they had moved this public interest litigation. In these circumstances, no fault could be found with the decision of the High Court recognising locus standi of the original petitioners to move this public interest litigation which we have found to be well justified on merits. 13. In the result, we confirm the decision of the High Court and dismiss these appeals. Interim reliefs granted earlier during the pendency of the appeals shall stand vacated. In the facts and circumstances of the case, there will be no order as to costs.
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1994 (11) TMI 434
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... ... ..... n supersession of the claim of the 7th respondent and other similarly situated persons, In Dr. Arun Kumar Agrawal's case, this Court considered the controversy and held that the acquisition of the qualification of M.Ch. in Neuro Surgery is a must and that the omission to consider the case of Dr. Arun Kumar Agrawal though had M.Ch. was not considered. It was held to be illegal and directed to consider his case. Though the post concerned therein was Assistant Professor, since the same qualification has been prescribed for the post of Professor/Associate Professor also, the ratio therein would equally be applicable to the claim of the persons eligible to be considered for promotion to the post of Professor/Associate Professor, Under these circumstances, we hold that the appellant since did not nave speciality in M.Ch. (Neuro Surgery), there is no illegality in the directions given by the High Court, warranting our interference. The appeal is accordingly dismissed. No costs.
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1994 (11) TMI 433
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... ... ..... no where mentions that the C.F.S.L. Form was also deposited. The Investigating Officer does not say that the C.F.S.L. Form was deposited by him. Even the Moharir Malkhana, Head Constable Paramjit Singh (PW-4), no where says that the C.F.S.L. Form was deposited with him. He even does not say that he had handed over the C.F.S.L. Form to Constable Satya Narain for being delivered to the Central Forensic Science Laboratory. Thus it has to be taken that the Form in question was neither deposited with the Moharir Malkhana nor was it taken from him by the Constable who had deposited the sample parcel with the Central Forensic Science Laboratory. (17) To my mind, what has been noticed by me above, is sufficient to cast grave suspicion in the veracity of the prosecution version. The benefit of it must go to the appellant. Consequently, by accepting the appeal, I hereby set aside the conviction and sentence of the appellant. He be released forthwith if not required in some other case.
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1994 (11) TMI 432
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... ... ..... the ingredients of the offence. As rightly contended by Mr U.R. Lalit, learned Senior Counsel, the charge-sheet cannot be considered in a restricted way. 87.On a careful perusal of the judgment we are left with the impression that the High Court had indulged in a laboured exercise, without limiting itself to the proper jurisdiction under Article 226 of the Constitution of India, in matters of this kind. We do not want to elaborate on the motive to prepare bombs and the intention thereto since the trial is yet to commence. 88.For all the above reasons we have absolutely no hesitation in holding that the High Court has clearly exceeded its powers under Article 226 of the Constitution in quashing the orders of sanction and taking of cognizance. Therefore, we set aside the impugned judgment of the High Court and direct the Designated Court to proceed with the case in accordance with the law with utmost expedition. 89. In the result, the criminal appeals are allowed accordingly.
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1994 (11) TMI 431
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... ... ..... nsel for the petitioner, them how does one explain the "promotion" of "Constables" to the rank of "Head Constable" ? And if both belong to the same "rank" then why use the expression "promotion to the rank of Head Constable" as used in Rules 13 and 14 of the Rules ? If the argument of the learned counsel for the petitioner is accepted the words "to the rank of" in the Rules noticed would become redundant. And redundant they are not. In fact they clearly demolish the argument and point out clearly and un-mistakenly, that constables and Head Constable relate to two different ranks and that when under the Rules persons of the the rank of constables are promoted then they are promoted as per Rules 13 and 14 "to the rank of Head Constables". 12. Surely then, Head Constables are officers superior in rank to constables. This being the position the challenge fails, and with it the petition. 13. Petition dismissed.
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