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Case Laws
Showing 41 to 60 of 418 Records
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1999 (4) TMI 620
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... ... ..... prosecution and bearing in mind the principles of law laid down in the aforenoted decisions, I do not consider it to be a fit case to give a direction to the trial court to expedite the trial and prolong the uncertainty and agony of the petitioner, already suffered by him for the last over 13 years. I am of the view that in the instant case right of the petitioner to speedy trial has been infringed and it is a fit case for putting an end to his trial at this stage itself. Accordingly, I quash the proceedings against the petitioner in the complaint entitled "A.P. Nandy Vs. J.Joseph", pending in the Court of the Addl. Chief Metro politcian Magistrate, New Delhi and discharge the petitioner. The personal and the surety bond furnished in terms of order dated 5 September, 1986, passed by the trial court, shall stand discharged. 14. The main petition as also Cr. M. 5115/97, seeking stay of the trial stand disposed of. 15. The record of the trial court shall be sent back.
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1999 (4) TMI 619
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... ... ..... d appeal is whether the Will executed by Babu Shetty in favour of Narayana of his 1/4th share under Ex. D. 1 can be believed or not." Such a question is not a question of law, much less a substantial question of law. This reasoning of the High Court cannot be sustained as it was deciding a second appeal under Section 100, Civil Procedure Code. The impugned order of the High Court is set aside and the Second Appeal is restored to its file with a request to re-decide the Second Appeal strictly within the parameters of the limited jurisdiction under Section 100, Civil Procedure Code. We express no opinion on the merits of the controversy between the parties. The Civil Appeal is allowed. No costs.
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1999 (4) TMI 618
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... ... ..... s-objection given under Section 39 of the Act, it cannot be read into Section 41 of the Act. Filing of cross-objection is not procedural in nature. Section 41 of the Act merely prescribes that procedure of the Code would be applicable to the appeal under Section 39 of the Act. We are, therefore, of the opinion that cross-objection by the respondent was not maintainable and the High Court was not correct in holding otherwise and restoring the award of interest to 18 per annum and, thus, interfering in the decree of the Trial Court. We would, therefore, set aside the award so far it grants damages by way of interest at the rate of 15 per annum on the amount found due to the respondent for the period prior to the date of reference. We would further restore the award of interest at the rate of 12 per annum as decreed by the trial Court. The appeals partly succeed. Judgment of the High Court appealed against is reversed to-the extent aforesaid. There will be no order as to costs.
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1999 (4) TMI 617
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... ... ..... vitiated. Learned counsel for the appellant contended that in view of the decision of this Court in the case of State of Punjab v. Balbir Singh as well as 3 Judge Bench decision in the case of Mohinder Kumar v. State, Panaji, Goa the conclusion of the High Court is not sustainable in law and the conviction of the appellant cannot be sustained. We find sufficient force in the aforesaid contention of the learned counsel for the appellant. In view of the pronouncement of this Court in the aforesaid cases and in view of the finding as recorded in the judgment of the High Court that provisions of Sections 55 and 57 have not been complied with the conviction is bad in law. The appellant has already undergone sentence for 9 years. We, accordingly, set aside the impugned judgment of the High Court and that of the learned Additional Sessions Judge. Hisar and acquit the appellant of the charges leveled against him. The appeal is, accordingly, allowed. The bail bond stands discharged.
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1999 (4) TMI 616
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... ... ..... received from the revenue. 3. The learned counsel for the revenue urges that, though the application dated 11-1-1989 is on record, the order made thereon is not traceable with them either. In these circumstances, assessment for the assessment year 1995-96 has been completed by treating as if there is no registration and the claim to exemption has been rejected for which an appeal against that order has been filed. However, in the absence of registration certificate, the same difficulty is likely to be faced by the petitioner in appeal. 4. In the circumstances, the respondents are directed to decide the application of the petitioner for issuing duplicate certificate within a fortnight. If it is found that by any inadvertence no order actually has been made on the application dated 11-1-1989, the same may now be conside-red and decided in accordance with law, also within this period. 5. Rule is, accordingly, made absolute with no order as to costs. Direct service is permitted.
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1999 (4) TMI 615
In absence of any constitutional or statutory rights being involved, a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against State or to avoid contractual liability arising thereto.
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1999 (4) TMI 614
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... ... ..... efendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant, for execution of sublease which would create interest in the property as sub-tenant and thirdly, in. case of sub- lease, for purchase of equipment, fitting and fixtures at a price of ₹ 2,50,000. Second and third part of the Agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18th July, 1970 is a deed of leave and licence' and not a lease'. In the result, the appeals are allowed, the judgment of the Division flench dt. 2.12.1997 is set aside and the order passed by the learned Single Judge in Suit No. 491 of 1985 is restored. In the circumstances of the case, there shall be no order as to costs.
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1999 (4) TMI 613
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... ... ..... pplication for stay before the Trial Court on the ground that an appeal against the order passed by CEGAT is pending in this Court. The Special Leave Petition is, therefore, dismissed.
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1999 (4) TMI 612
Whether payment due to the applicant under the transaction mentioned in annexure-B is liable to tax in India?
Whether the payment due to the applicant under the transaction mentioned in annexure-B is covered under article 12(3)(a) or article 12(3)(b) of the Double Taxation Avoidance Agreement between India and the USA if the answer to question No. 1 is in the affirmative?
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1999 (4) TMI 611
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... ... ..... itioner, the Commissioner has not extended the period of operation of the impugned order beyond the period of six months as provided under section 281B and the impugned order lapsed on 19-9-1998 under section 281B. An order passed under section 281B is valid only for a period of six months unless it is extended. Even according to the writ petitioner, the impugned order lapsed on 19-9-1998 and if that is the position, I am of the view that nothing survives in the writ petition and, accordingly, this writ petition is liable to be dismissed. 4. The learned counsel for the petitioner submitted that the order of attachment of the movable properties of the petitioner is not valid in law. However, in my view, when even according to the petitioner, the impugned order lapsed on 19-9-1998 under section 281B, it is not necessary to consider the said objection. Accordingly, this writ petition is dismissed with cost of ₹ 500. Consequently, W.M.P. No. 3872 of 1999 is also dismissed.
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1999 (4) TMI 610
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... ... ..... gment dated November 19, 1986 allowed the appeal holding that the Arbitrator had failed to decide the actual disputes specifically referred to him and remitted the matter to the Arbitrator for reconsideration under Section 16 of the Arbitration Act. This appeal was filed by the State of Orissa against the judgment of the High Court and it has taken more than 12 years for the decision of the appeal. However, it was not necessary that the State Government should have challenged the order of the High Court in the circumstances of the case causing unnecessary expense to the parties and the time this Court had to spend in hearing the appeal. Had the State Government abide by the order of the High Court the matter before the Arbitration would have been completed years ago. State cannot act like a private litigant that it must challenge every order made against it. State has to be advised properly if a case required determination of this Court under Article 136 of the Constitution.
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1999 (4) TMI 609
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... ... ..... ight of a person making a payment under protest to institute a suit which is expressly provided for under Section 70 Sub-section(3). Looking to the scheme of recovery and refund under Sections 70 and 71, "amounts due" under Section 71 are those amounts which the creditor could have recovered had he filed a suit. In the premises under Section 71 of the Kerala Revenue Recovery Act claims which are time-barred on the date when a requisition is issued under Section 69(2) of the said Act are not "amounts due" under Section 71 and cannot be recovered under the said Act. Our conclusion is based on the interpretation of Section 71 in the light of the provisions of the Kerala Revenue Recovery Act. In the premises, Civil Appeal Nos. 12393 and 12394 of 1996 are allowed while Civil Appeal Nos. 4211 of 1988, 4393 of 1988, 4175 of 1988 and Civil Appeal No........./1999 (Arising out of SLP(C) No.12051 of 1988) are dismissed. There will, however, be no order as to costs.
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1999 (4) TMI 608
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... ... ..... f the adjudicating authority. 3. We observe that Shri R. Santhanam, learned advocate is correct in his submission that the issue is clearly covered by the aforesaid judgment of the Tribunal in the case of Bhushan Industries Co. Ltd. (supra). Consequently, following respectfully the said judgment of the Tribunal, we allow this appeal, after we set aside the impugned order, with consequential relief to the appellants.
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1999 (4) TMI 607
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... ... ..... than mentioned in form 31 or in the other papers accompanying the consignment. In my view, therefore, so far as the estimate of the quantity of coal traded by the dealer is concerned, the estimate made by the assessing officer and the learned Dy. Commissioner (Appeals) was totally arbitrary. Therefore, the dealer's turnover for this year should have been estimated by accepting the quantity of coal sold to be 6993 M.T. The estimate of the sale price at ₹ 350/- per tonne is not shown to suffer from any illegality. Therefore, the turnover of the dealer for this year should have been determined at ₹ 24,47,550/-. 27. This revision petition is, therefore, partly allowed and setting aside the Tribunal's order on the dealer's Second Appeal No. 919 of 1990, it is ordered that the said appeal shall stand partly allowed and the dealer turnover for assessment year 1982-83 is reduced to ₹ 24,47,550/-. In this case also, the parties will bear their own costs.
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1999 (4) TMI 606
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... ... ..... of the Legislative Assembly, The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like this Election Commission should invariably be made a party. When leave to appeal was granted to the appellant by this Court operation of the impugned judgment was suspended. Respondent No. 2 shall intimate to the State Government as to for how many days the appellant sat as a member of the Legislative Assembly and it would be for the State Government to recover penalty from the appellant in terms of Article 193 of the Constitution. This appeal is dismissed with costs.
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1999 (4) TMI 605
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... ... ..... Lucknow and seeks an order to the effect that the auction-sale be not confirmed. The learned Single Judge of the High Court has noticed, in the interim order made on 30-3-1999, that auction was being conducted under orders of this Court and that the matter concerning auction of the house was pending in this Court. How then a writ petition could be entertained in the High Court is not understandable. Judicial discipline required the High Court not to entertain any such petition, when the proceedings were pending in this Court in respect of the subject-matter of the case. The parties should have been asked to approach this Court, if so advised. The High Court had no jurisdiction to entertain the writ petition in the fact situation. We need say nothing further on this aspect except to record our displeasure. This order shall be brought to the notice of the High Court. 5. Insofar as the case against Shri Gorakhnath Jaiswal is concerned, let the matter be listed after four weeks.
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1999 (4) TMI 604
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... ... ..... r to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice in olden days for residential buildings to have sprawling areas as adjuncts to such buildings. That practice could well have been followed by the parties in the lease deed which is subject matter of the case. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the lease is exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act. In the result, we allow the appeal and set aside the impugned judgment as also the order of the Land Tribunal as confirmed by the Appellate Authority. Accordingly, the application filed by the respondent under Section 72B of the Act will stand dismissed.
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1999 (4) TMI 603
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... ... ..... protest on the above ground is of no help to the appellants for subsequent approval of classification list on the basis of which the present refund claim is based. Learned JDR, prays for dismissing the appeal. 3. We have carefully considered the pleas advanced by the learned JDR. We have also gone through the grounds of the appellants’ memo of appeal before us. We agree with the submission of the learned JDR in view of the Tribunal’s judgment in the case of Jain Ceramics Industry, supra that the protest lodged by the appellants on the basis of applicability of Notification 175/86 cannot be made applicable to the ground on which the refund claim has been based i.e. on the ground of classification of the product under Tariff Heading 84.37, as claimed by the appellants and as against classification under Tariff Heading 84.79 as made by the Department during the relevant period. Consequently, we do not find any substance in the appeal. Hence, we reject the same.
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1999 (4) TMI 602
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... ... ..... alities of law. The High Court appears to have substituted its opinion for the opinion of the labour court which was not permissible in proceedings under Articles 226/227 of the Constitution. We are, however, of the opinion that on account of the admitted delay, the labour court ought to have appropriately moulded the relief by denying the appellant-workman some part of the back wages. In the circumstances, the appeal is allowed, the impugned judgment is set aside by upholding the award of the labour court with modification that upon his reinstatement the appellant would be entitled to continuity of service, but back wages to the extent of 60 per cent with effect from 8.12,1981 when he raised the demand for Justice till the date of award of the labour court i.e 16.4.1986 and full back wages thereafter till his reinstatement would be payable to him. The appellant is also held entitled to the costs of litigation assessed at ₹ 5.000 to be paid by the respondent-management
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1999 (4) TMI 601
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... ... ..... on in suits shall apply. That apart, if a person cannot avail of the right of appeal under Section 406 of the Act, other remedies are available to him under the law. In that case, it may not be possible for the Municipal Corporation to contend that an alternative remedy of appeal exist under Section 406 of the Act. When leave was granted in these appeals by order dated December 12, 1980 this Court granted stay on the condition that seventy-five per cent of the tax is deposited with the Municipal Commissioner within two months from that date and on such deposit being made, the appeals be heard and disposed of (by the Judge) and we believe by this time the appeals filed before the Judge under Section 406 must have been disposed of. When the arguments started in these matters, on the statement of learned counsel for the appellant two appeals bearing Nos.3018-19/80 were dismissed as withdrawn. We do not find any merit in these appeals. These are accordingly dismissed with costs.
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