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Showing 41 to 60 of 848 Records
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1967 (12) TMI 11
Agreement for avoidance, double taxation between India and Pakistan - salary paid - held that, in whichever capacity partner of the assessee-firm was appointed, the remuneration paid could not be claimed as deduction, because he was serving the firm for remuneration in his capacity as partner
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1967 (12) TMI 10
Agreement for avoidance, double taxation between India and Pakistan - foreign income - in calculating the abatement under Art. V, the whole income and not half the Pakistan income should be considered for comparing the taxes payable in that Dominion with that payable in India and then, only one-half of the lower tax is payable
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1967 (12) TMI 9
Petitioner under article 226 of the Constitution prays to direct the Income-tax Officer, to desist from taking recovery proceedings - It is a settled rule that the court will not allow a party to succeed, on a second application, when it has previously applied for the very same thing and failed, except in case of alteration in the form of a title or jurat in the affidavit
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1967 (12) TMI 8
Issues:
1. Deduction under section 10(2)(xv) of the Income-tax Act for expenditure incurred in connection with the Silver Jubilee celebration of a film exhibition.
The judgment delivered by the High Court of MADRAS involved the assessment of a deduction claim under section 10(2)(xv) of the Income-tax Act, 1922, for an expenditure related to the Silver Jubilee celebration of a film exhibition. The assessee, a partnership firm engaged in film distribution and exhibition, claimed a deduction of Rs. 13,376 for expenses incurred in connection with the celebration of the successful 25-week run of the film 'Kalyana Parisu'. The Income-tax Officer initially disallowed the claim, questioning the commercial expediency of the expenditure. However, the Appellate Assistant Commissioner supported the assessee's claim, emphasizing the normal nature of the expenditure and its positive impact on the market for the film. Subsequently, the Tribunal overturned the decision, leading to the reference under section 66(2) before the High Court.
The central question before the court was whether the disallowance of the claimed expenditure was permissible under section 10(2)(xv) of the Income-tax Act. The Tribunal had contended that the expenditure on the Silver Jubilee celebration lacked a direct link to securing further leases of the film or increasing collections, asserting that the 25-week run itself provided sufficient publicity. However, the court disagreed with this view, emphasizing that the expenditure fell within the ambit of section 10(2)(xv). The court noted that the expenditure was incurred in the course of the film exhibition business and was aimed at enhancing publicity to potentially boost collections during a period of declining revenue.
The court highlighted that the judgment on the expediency of the expenditure rested solely with the assessee, as repeatedly affirmed by previous court decisions. While the revenue authorities must ensure the factual nature of the expenditure and its alignment with business purposes under section 10(2)(xv), the reasonableness of the expenditure is not within their purview unless it pertains to the actual expenditure incurred. In this case, the court found that the expenditure was unquestionably connected to the film exhibition business and was laid out for business purposes, leaving no room for an alternative interpretation.
Consequently, the court ruled in favor of the assessee, allowing the deduction claim for the expenditure incurred in connection with the Silver Jubilee celebration of the film exhibition. The court also awarded costs to the assessee, including counsel's fee of Rs. 250, thereby resolving the issue in favor of the assessee.
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1967 (12) TMI 7
Issues Involved:
1. Whether the income derived by the assessee from the lease of the factory has been rightly treated as income from business assessable under section 10.
2. Whether the second proviso to clause (vii) of sub-section (2) of section 10 of the Income-tax Act does not apply to the case covered by section 12(3).
Issue-wise Detailed Analysis:
Issue 1: Income from Lease Treated as Business Income
The primary question is whether the income derived by the assessee from leasing the factory should be treated as income from business under section 10. The assessee, a Hindu undivided family, acquired a ginning factory and ran it until 1948, after which it was leased out annually until its sale in 1951. The Income-tax Officer treated the depreciation amount of Rs. 67,420 as profit of the business and brought it to tax. The assessee contended that this amount was not profit under section 10(2) but under section 12, claiming the benefit of allowance under section 10(2)(vii) without being liable under the second proviso to that provision.
The Tribunal upheld the orders of the authorities below, applying the second proviso to section 10(2)(vii) and rejecting the assessee's contention that its case falls under section 12(3). The Tribunal made the reference to the High Court on the assessee's application.
The Court referred to the Supreme Court's decision in Commissioner of Income-tax v. Express Newspapers Ltd., which clarified that the second proviso to section 10(2)(vii) brings to charge the difference between the original cost and the written down value as profits of the previous year in which the sale takes place. This applies if the machinery was used for the business during the accounting year. The Court noted that the factory was leased out as a going concern and the business was carried on by the lessee until the sale.
The Court also referenced Commissioner of Excess Profits Tax v. Shri Lakshmi Silk Mills Ltd., where it was held that leasing out machinery temporarily for profit is part of the normal activities of the business. The Court concluded that the assessee's income from leasing the factory is business income under section 10, as the factory was a commercial asset exploited for profit.
Issue 2: Applicability of Second Proviso to Section 10(2)(vii)
The second question concerns whether the second proviso to section 10(2)(vii) applies to the case covered by section 12(3). The Court noted that the second proviso to section 10(2)(vii) deems the difference between the original cost and the written down value as profits of the previous year in which the sale occurs. This proviso applies to the sale of machinery used for business during the accounting year.
The Court referred to the Supreme Court's decision in Express Newspapers Ltd., which stated that the second proviso brings to charge escaped profit or gain of a business carried on by the assessee. The second proviso is not an allowance provision covered by sub-section (3) of section 12. Therefore, if section 12(3) applied, the second proviso to section 10(2)(vii) would not be attracted.
The Court concluded that the second proviso to section 10(2)(vii) applies to the assessee's case, as the factory was a business asset used for profit. The answer to the first question being affirmative, the second question does not arise. However, if it did, the second proviso to section 10(2)(vii) would still apply, as it is not an allowance provision under section 12(3).
Conclusion:
The Court held that the income derived from leasing the factory is assessable as business income under section 10. The second proviso to section 10(2)(vii) applies, deeming the difference between the original cost and the written down value as profits of the previous year of sale. The assessee will bear the costs of the Commissioner of Income-tax in this reference.
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1967 (12) TMI 6
Issues:
1. Validity of partial partition of a Hindu undivided family business.
2. Entitlement of a partnership firm to be registered under section 26A of the Income-tax Act, 1922.
Analysis:
Issue 1: Validity of Partial Partition
The case involved a Hindu undivided family business that underwent a partial partition, leading to the formation of a partnership between the father and his three sons. The Tribunal found that the business assets of the family resulted in liabilities, and the non-division of these liabilities was a key contention. The Commissioner argued that without dividing both assets and liabilities, a valid partial partition could not be established. The legal principles of partial partition in Hindu law were discussed, emphasizing the importance of coparceners' intention in effecting such a partition. The Tribunal's finding that the partnership was genuine and based on evidence was deemed final, with reference to established legal precedents supporting the Tribunal's decision. The High Court concluded that despite the non-division of liabilities, a valid partial partition had occurred, transferring the family business to the partnership.
Issue 2: Registration of Partnership Firm
The Tribunal had granted registration under section 26A of the Income-tax Act to the partnership firm, recognizing it as a separate entity from the Hindu undivided family for income tax purposes. The Commissioner contended that the non-division of liabilities should preclude the firm from being registered. However, the High Court emphasized that the Tribunal's decision was based on various factors, not solely on the non-division of liabilities. The High Court upheld the Tribunal's decision, stating that the partnership firm, Kishori Lal Sunder Lal, was validly constituted and entitled to be registered under section 26A of the Act. The High Court awarded costs to the respondent and affirmed the Tribunal's decision.
In conclusion, the High Court affirmed the Tribunal's findings, ruling in favor of the partnership firm's registration and validating the partial partition of the Hindu undivided family business despite the non-division of liabilities. The judgment emphasized the importance of coparceners' intention in partition matters and upheld the Tribunal's decision based on established legal principles and precedents.
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1967 (12) TMI 5
Issues:
1. Interpretation of Section 7 of the Wealth-tax Act in determining the value of shares.
2. Application of the "break-up value" method vs. the "yield value" method in valuation.
3. Consideration of appropriate valuation method for shares in a company.
Analysis:
The judgment by the High Court of Assam and Nagaland involved the interpretation of Section 7 of the Wealth-tax Act concerning the determination of the value of assets, specifically shares. The court addressed the question of whether the Tribunal was justified in applying the "break-up value" method instead of the "yield value" method in valuing shares under the Act. The "break-up value" method is typically used for companies in liquidation, while the "yield value" method is applied to going concerns. The Tribunal had previously accepted the "yield value" method for valuation but switched to the "break-up value" method without substantial justification in the case at hand.
The court considered arguments presented by both parties regarding the appropriate valuation method. The petitioner contended that the "break-up value" method should only be used for companies in liquidation, citing legal precedents. On the other hand, the respondent argued that the "yield value" method should be applied, emphasizing the importance of considering the company's profitability and nature of business in determining share value. The court agreed with the respondent, stating that the "yield value" method is more suitable for valuing shares in a going concern, as opposed to the "break-up value" method, which is linked to companies in winding-up stages.
Furthermore, the court highlighted the lack of substantial evidence or material to support the Tribunal's shift from the "yield value" method to the "break-up value" method for valuation. The court emphasized that in cases involving shares of a going concern, the correct method for valuation under Section 7 of the Wealth-tax Act is the "yield value" method. The judgment concluded by answering the referred question in the negative, asserting that the "yield value" principle should be applied in similar cases. The court also noted that the decision in one wealth-tax reference also applied to another wealth-tax reference, ensuring consistency in valuation methodology.
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1967 (12) TMI 4
Issues:
1. Deductibility of wealth-tax liability in computing net wealth.
2. Justification of deletion of difference between market value and book value of shares.
3. Allowance of provision made for tax as a deduction in computing break-up value of shares.
Issue 1: Deductibility of wealth-tax liability in computing net wealth:
The appellant contested that wealth-tax should be deducted in computing net wealth for the relevant assessment years. The Appellate Tribunal initially allowed the claim, but the Commissioner of Wealth-tax challenged this decision. The High Court considered whether wealth-tax liability could be deducted as a liability for the respective years. The High Court ruled that wealth-tax liability crystallizes on the valuation date, not on the first day of the assessment year. The court referenced the principle established in a previous case, emphasizing that a liability to pay tax is a present liability, even if quantified later. The court held that wealth-tax liability on the valuation date should be considered a debt owed and deducted from the estimated value of assets for the assessment year. Consequently, the High Court answered in favor of the appellant, allowing the deduction of wealth-tax liability under section 2(m) of the Wealth-tax Act for the assessment years in question.
Issue 2: Justification of deletion of difference between market value and book value of shares:
The High Court also addressed whether the deletion of differences between market value and book value of shares held by a company was justified. The court ruled in favor of the appellant on this issue, stating that the deletion was justified under the circumstances and provisions of the Act. This decision favored the appellant against the department's contentions.
Issue 3: Allowance of provision made for tax as a deduction in computing break-up value of shares:
The third question raised was whether a provision made for tax and shown in the balance sheet should be allowed as a deduction in computing the break-up value of shares in a specific company. The High Court sided with the appellant on this matter, holding that the provision for tax should indeed be allowed as a deduction in computing the break-up value of shares. This decision supported the appellant's position in the case.
In conclusion, the Supreme Court allowed the appeals, with costs awarded to the appellant. The court upheld the deductions of wealth-tax liability, justified the deletion of differences in share values, and allowed the provision for tax as a deduction in computing share values. The judgments delivered by the High Court favored the appellant on all three issues, providing a comprehensive analysis and legal reasoning for each decision.
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1967 (12) TMI 3
Swiss company agreed with the assessee in consideration of payment of a `technical and research contribution for the use of its Indian patents and/or trade marks - payment made by the assessee to Ciba Ltd., Basle, in pursuance of the agreement is not an admissible deduction under the provisions of s. 10(2)
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1967 (12) TMI 2
Assessment of the firm originally made under 1922 Act as unregistered firm. Assessment rectified on the basis that firm was a registered firm - hence rectification of partners` assessment after repeal of 1922 Act. is saved by 1961 Act - assessee's appeal is dismissed
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1967 (12) TMI 1
Tribunal holding that the losses incurred prior to the reconstruction of the respondent-company are irrelevant for the purpose of application of s. 23A of the Act in subsequent years - Tribunal was not right in taking view that after adjustment of loss against capital the losses do not survive - Revenue's appeal is dismissed
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1967 (11) TMI 118
Issues Involved:
1. Admissibility of statements recorded by Customs officers under Section 108 of the Customs Act, 1962.
2. Applicability of Section 25 of the Indian Evidence Act to statements recorded by Customs officers.
3. Whether Customs officers can be considered as "police officers" under Section 25 of the Indian Evidence Act.
4. Impact of Article 20(3) of the Constitution of India on statements recorded by Customs officers.
5. Applicability of Section 162 of the Criminal Procedure Code to statements recorded by Customs officers.
Issue-wise Detailed Analysis:
1. Admissibility of Statements Recorded by Customs Officers Under Section 108 of the Customs Act, 1962:
The primary issue in these revision applications was whether statements recorded by Customs officers under Section 108 of the Customs Act, 1962, are admissible in evidence. The accused in all three cases contended that their statements were inadmissible as they were hit by Section 25 of the Indian Evidence Act.
2. Applicability of Section 25 of the Indian Evidence Act to Statements Recorded by Customs Officers:
The Court examined whether Section 25 of the Indian Evidence Act, which excludes confessions made to police officers from being admissible in evidence, applies to statements made to Customs officers. The Court noted that historically, confessional statements made before Customs officers have not been considered inadmissible under Section 25. The Supreme Court's ruling in State of Punjab v. Barkat Ram was referenced, which held that Customs officers are not police officers and thus, Section 25 does not apply to statements recorded by them.
3. Whether Customs Officers Can Be Considered as "Police Officers" Under Section 25 of the Indian Evidence Act:
The Court evaluated the argument that the Customs Act of 1962 conferred broader powers on Customs officers, making them akin to police officers. However, it reaffirmed the Supreme Court's stance in Barkat Ram's case and Badaku Joti v. State of Mysore, which distinguished the primary functions of Customs officers from those of police officers. The Court concluded that the primary purpose of Customs officers is to safeguard revenue and prevent smuggling, not to maintain law and order, and thus they do not fall under the definition of "police officers" for the purposes of Section 25.
4. Impact of Article 20(3) of the Constitution of India on Statements Recorded by Customs Officers:
The argument that statements recorded under compulsion by Customs officers are hit by Article 20(3) of the Constitution, which protects against self-incrimination, was also considered. The Court cited precedents, including State v. Devsi Dosa, and Narayanlal Bansilal v. M. P. Mistry, which held that Article 20(3) applies only when a formal accusation exists at the time of recording the statement. Since the statements in question were recorded before any formal accusation, Article 20(3) was deemed inapplicable.
5. Applicability of Section 162 of the Criminal Procedure Code to Statements Recorded by Customs Officers:
The contention that Section 162 of the Criminal Procedure Code (Cr. P. C.), which bars the use of statements made to police officers during an investigation, applies to statements made to Customs officers was rejected. The Court clarified that Customs officers are not police officers, and the Customs Act, 1962, provides its own procedure for investigation, making Section 162 Cr. P. C. inapplicable. Additionally, the offences under the Customs Act are non-cognizable, further negating the applicability of Section 162 Cr. P. C.
Conclusion:
The Court ultimately held that statements recorded by Customs officers under Section 108 of the Customs Act, 1962, are admissible in evidence and are not hit by Section 25 of the Indian Evidence Act, Article 20(3) of the Constitution, or Section 162 of the Criminal Procedure Code. The rule was discharged in all the applications, and the interim stay was vacated.
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1967 (11) TMI 117
The lower appellate court found that the signature on Exhibit P-1 did not exist when handed over to the plaintiff by the defendant. As a result, the plaintiff could not rely on the presumption under Section 118 of the Negotiable Instruments Act. The lower appellate court held that the execution of the promissory note was not proved, and this finding cannot be challenged in a second appeal. The court also noted a missing segment in the signature on Exhibit P-1, indicating tampering. The appeal was dismissed with costs.
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1967 (11) TMI 116
Issues Involved:
1. Legality of the application under Section 19(2) of the Foreign Exchange Regulation Act, 1947.
2. Authority of the Assistant Director to pass the order under Section 19(2).
3. Legality of the seizure of currency notes by the police.
4. Entitlement of the Enforcement Directorate to the custody of the seized currency notes.
5. Applicability of Section 523 of the Criminal Procedure Code.
Detailed Analysis:
1. Legality of the Application under Section 19(2) of the Foreign Exchange Regulation Act, 1947:
The application made by the respondent for handing over the currency notes was purportedly under Section 19(2) of the Act. The court found that Section 19(2) has no application to this case, and at any rate, currency notes do not come within its ambit. Section 19(2) allows the Central Government or the Reserve Bank to obtain and examine any information, book, or other document in the possession of any person. However, the Sub-Inspector of Police was not in possession of the currency notes or documents when the order was passed, as they had already been produced in court. Therefore, the application under Section 19(2) was invalid.
2. Authority of the Assistant Director to Pass the Order under Section 19(2):
The court noted that only the Reserve Bank of India or the Central Government is entitled to pass any order under Section 19(2) of the Act. In this case, the order was passed by an Assistant Director of the Enforcement Directorate, which is not authorized under the Act. The order did not state it was passed by virtue of any delegation of power, nor did it purport to be one passed on behalf of the Reserve Bank or the Central Government. Consequently, the order was invalid on its face.
3. Legality of the Seizure of Currency Notes by the Police:
The petitioner argued that the police had no power to seize the currency notes for any offence under the Act, making the seizure illegal. The court, however, found that the seizure was lawful. Offences under the Act are to be investigated by the officers of Enforcement, but the police are empowered to assist in the enforcement of the Act under Section 25A. Section 550 of the Criminal Procedure Code also allows a police officer to seize any property suspected to be involved in the commission of any offence. Therefore, the seizure of the currency notes by the Sub-Inspector was lawful.
4. Entitlement of the Enforcement Directorate to the Custody of the Seized Currency Notes:
The court considered whether the respondent (Enforcement Directorate) was entitled to the custody of the currency notes. Although the respondent's application was clumsily drawn and did not specify the legal provision under which it was made, the court found that under Section 523 of the Criminal Procedure Code, the Magistrate has the authority to make orders respecting the disposal of property seized by the police. The court held that the Enforcement Directorate was entitled to the currency notes for investigation purposes, as the notes were not required for any purpose in the court.
5. Applicability of Section 523 of the Criminal Procedure Code:
The court rejected the petitioner's contention that Section 523 of the Criminal Procedure Code does not apply to this case. The section applies to property seized by a police officer under circumstances creating suspicion of the commission of any offence. The court cited previous judgments to support this interpretation and concluded that the Magistrate's order to hand over the currency notes to the respondent was valid under Section 523.
Conclusion:
The court dismissed the revision petition, upholding the Magistrate's order to hand over the currency notes to the Enforcement Directorate. The court found that the application under Section 19(2) of the Act was invalid, the Assistant Director lacked authority to pass the order, the seizure by the police was lawful, and the Enforcement Directorate was entitled to the custody of the currency notes under Section 523 of the Criminal Procedure Code.
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1967 (11) TMI 115
Issues Involved:
1. Joint opening of the current and overdraft account.
2. Contract of interest at the rate of one percent per month.
3. Admission of debt by Defendant No. 3.
4. Alleged forgery regarding the confirmation of the balance.
5. Suit barred by limitation.
6. Suit maintainability against Defendant No. 1 as a Military servant.
7. Relief entitlement for the plaintiff.
Detailed Analysis:
1. Joint Opening of the Current and Overdraft Account:
The primary issue was whether the 1st defendant and his brother jointly opened a current and overdraft account with the plaintiff-Bank. The plaintiff produced account books and the Bank Manager as evidence. The court found the evidence of P.W.1 unimpeachable and concluded that the account was jointly opened by the two brothers. The joint execution of Exhibits P-2, P-4, and P-5 by both brothers further supported this conclusion, leading the court to hold both brothers jointly and severally liable for the account.
2. Contract of Interest at One Percent Per Month:
The court found that the parties agreed to pay interest at the rate of one percent per month. This finding was based on the evidence presented and was not contested further by the defendants.
3. Admission of Debt by Defendant No. 3:
The court found that Defendant No. 3 did not personally admit the debt in writing dated January 4, 1949 (Exhibit No. 1). Therefore, Issue 3 was decided against the plaintiff.
4. Alleged Forgery Regarding the Confirmation of the Balance:
The court examined Exhibit P-2 and concluded that it was not forged. The 1st defendant failed to prove that the words confirming the balance were added after his signature. Thus, Issue 4 was found against the defendants.
5. Suit Barred by Limitation:
The court held that the suit was not barred by limitation due to Exhibit P-2, an acknowledgment executed by the 1st defendant and his brother on 9-9-1947. The suit was filed on 9-9-1950, within the limitation period. Additionally, the court applied Article 85 of the Indian Limitation Act, considering the account as mutual, open, and current, which extended the limitation period.
6. Suit Maintainability Against Defendant No. 1 as a Military Servant:
This issue was not elaborated upon in the judgment, indicating that it was either not contested or not considered significant by the court.
7. Relief Entitlement for the Plaintiff:
The court decreed the plaintiff's suit for Rs. 54,956-15-8 O.S., including costs and interest at 6 percent per annum from 9-9-1947 until final payment. The suit was decreed against the property of Iftikhar Ali Khan in the hands of defendants 2 to 4. The plaintiff did not appeal the dismissal of a part of his claim, and the 1st defendant's appeal was dismissed.
Conclusion:
The court upheld the lower court's decision, finding the 1st defendant and his brother jointly liable for the overdraft account. The suit was within the limitation period, and the promissory notes executed as collateral securities were valid and supported by consideration. The appeal was dismissed with costs.
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1967 (11) TMI 114
Issues Involved:
1. Entitlement to recover possession under Section 326, Qanoon Mal, read with Section 163, Qanoon Ryotwari.
2. Obligatory legal process for dispossession of a tenant.
3. Interpretation of statutory provisions under Qanoon Ryotwari and Qanoon Mal.
4. Relevance of title in suits under Section 326, Qanoon Mal, and Section 9 of the Specific Relief Act.
5. Legal principles regarding forcible possession by landlords.
Issue-wise Detailed Analysis:
1. Entitlement to Recover Possession under Section 326, Qanoon Mal, read with Section 163, Qanoon Ryotwari:
The appellant contended that under Section 326, Qanoon Mal, read with Section 163, Qanoon Ryotwari, a plaintiff is entitled to recover possession if dispossessed from prior juridical possession within six months of the suit, and the question of title is irrelevant in such a suit. The Supreme Court agreed, stating that Section 326 is similar to Section 9 of the Specific Relief Act, 1877, where the question of title does not arise, and the focus is on unlawful disturbance of possession.
2. Obligatory Legal Process for Dispossession of a Tenant:
The Board of Revenue held that even if a tenant's right is extinguished under Section 82 of Qanoon Ryotwari due to arrears, the tenant must be legally dispossessed. The High Court, however, concluded that it was not obligatory for the defendant to file a suit under Section 137 of Qanoon Ryotwari. The Supreme Court disagreed with the High Court, emphasizing that possession should be obtained through legal means, not by force, supporting the Board's view that dispossession should follow the procedure outlined in Section 137 of Qanoon Ryotwari.
3. Interpretation of Statutory Provisions under Qanoon Ryotwari and Qanoon Mal:
The Supreme Court interpreted the statutory provisions, noting that Section 82 (3) of Qanoon Ryotwari does not automatically extinguish a tenant's right due to arrears, as the Collector can accept arrears under special circumstances. The Court found that Section 326 of Qanoon Mal, which deals with unlawful disturbance of possession, provides a shorter limitation period and summary procedure, indicating its focus on unlawful dispossession rather than title.
4. Relevance of Title in Suits under Section 326, Qanoon Mal, and Section 9 of the Specific Relief Act:
The Supreme Court emphasized that title is irrelevant in suits under Section 326 of Qanoon Mal, similar to Section 9 of the Specific Relief Act. The Court cited previous judgments, including Midnapur Zamindary Company Limited v. Naresh Narayan Roy and K.K. Verma v. Naraindas C. Malkani, which established that possession, even without title, is protected by law, and forcible dispossession is not permitted.
5. Legal Principles Regarding Forcible Possession by Landlords:
The Supreme Court reiterated that in India, landlords cannot take possession forcibly and must seek legal recourse. The Court referenced several cases, including Yar Mohammad v. Lakshmi Das and the Privy Council's observations, affirming that possession must be obtained through the Court, and forcible entry by landlords constitutes trespass.
Conclusion:
The Supreme Court held that the High Court erred in quashing the order of the Board of Revenue. The appeal was allowed with costs, the judgment of the High Court was set aside, and the order of the Board of Revenue was restored. The Court affirmed that legal possession must be obtained through proper legal channels, and forcible dispossession is not permissible.
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1967 (11) TMI 113
Issues:
- Competency of the licence inspector to file a complaint under specific sections of the Bombay Provincial Municipal Corporation Act, 1949.
Analysis:
The appeal before the Supreme Court of India challenged the judgment of the High Court of Gujarat in a criminal revision application. The central issue in this case was whether the licence inspector, Mangulal Chunilal, was competent to file a complaint under sections 376(1)(d)(i) and 392(1)(a) of the Bombay Provincial Municipal Corporation Act, 1949. The complaint was filed against an individual for carrying out certain activities without obtaining the required license. The High Court allowed the application and set aside the conviction and sentence of the accused, Manilal Maganlal. The core contention revolved around the interpretation of the term "take proceedings" in the Act.
The appellant contended that the power to take proceedings includes the authority to authorize others to institute proceedings under the Act. It was argued that there were no restrictions in the delegation order that mandated the Deputy Health Officer to file the complaint personally. The appellant relied on previous judgments to support their argument, emphasizing the binding nature of relevant precedents on the issue at hand. The respondents did not appear before the Supreme Court, leading to a decision based on the arguments presented by the appellant.
The Supreme Court analyzed the relevant provisions of the Act, particularly sections 69 and 481, to determine the scope of delegation of powers to municipal officers. The Court deliberated on the meaning of the term "take proceedings" in the context of the Act. It was observed that while certain actions under section 481(1) required the delegate to personally perform them, the term "take" in sub-clauses (a) and (e) was interpreted to allow delegation of the initiation of proceedings. The Court rejected the argument that "take proceedings" should be construed as "order proceedings to be taken," emphasizing the need to adhere to the plain meaning of the term.
Drawing on past judgments and legal principles, the Supreme Court affirmed that only designated authorities mentioned in the Act could initiate proceedings against individuals charged with offenses under the Act or related regulations. The Court highlighted the necessity for the complainant to demonstrate the legal authority to file a complaint, which cannot be conferred based on a historically accepted but incorrect interpretation. Ultimately, the Supreme Court dismissed the appeal and upheld the decision of the High Court, emphasizing the importance of statutory interpretation and adherence to legal provisions in filing complaints under municipal laws.
In conclusion, the Supreme Court's judgment clarified the interpretation of the term "take proceedings" in the Bombay Provincial Municipal Corporation Act, emphasizing the need for designated authorities to initiate legal actions against offenders. The decision underscored the significance of legal authority in filing complaints under municipal laws and upheld the ruling of the High Court in setting aside the conviction and sentence of the accused based on the competency of the licence inspector to file the complaint.
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1967 (11) TMI 112
Where there is a bargain for a certain quantity extra greater quantity, and there is h power of selection in the vendor to deliver which he thinks fit, then the right to them does not pass to the vendee until the vendor has made his selection, and trover is not maintain able before that is done
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1967 (11) TMI 111
Issues Involved:
1. Authority to appoint and transfer judicial officers.
2. Validity of the High Court's orders regarding the transfer of judicial officers.
3. Jurisdiction of the High Court over administrative posts within the judiciary.
4. Implementation of the High Court's transfer orders by the government.
Detailed Analysis:
1. Authority to Appoint and Transfer Judicial Officers:
The central issue revolves around the authority to appoint and transfer judicial officers within the Orissa Superior Judicial Service. The cadre includes both judicial and administrative posts. According to Article 229 of the Constitution, the Chief Justice has the exclusive power to appoint the Registrar of the High Court. The Governor holds the power to appoint secretaries to the government. Historically, the Governor exercised the power to transfer district judges in consultation with the High Court, a practice upheld until the Supreme Court's decision in the State of Assam v. Ranga Mahammad ([1967] 1 S.C.R. 454), which vested the power of transfer in the High Court under Article 235.
2. Validity of the High Court's Orders Regarding the Transfer of Judicial Officers:
The High Court's policy decision in February 1965 aimed to recall judicial officers from administrative posts after three years to prevent them from losing touch with judicial work. Despite repeated requests, the government did not comply. Following the Supreme Court's decision in Ranga Mahammad's case, the High Court unilaterally ordered the transfer of several officers on October 10, 1966, which included:
- Shri K.B. Panda as law secretary.
- Shri B.K. Patro as district and sessions judge of Ganjam-Boudh.
- Shri T. Misra as superintendent and legal remembrancer.
- Shri K.K. Bose as district and sessions judge of Mayurbhanj-Keonjhar.
- Shri P.K. Mohanti as deputy law secretary.
- Shri P.C. Dey as district and sessions judge of Bolangir-Kalahandi.
The High Court's orders were notified in the Orissa Gazette, but the government refused to implement them, leading to the filing of petitions for a writ of mandamus and quo warranto.
3. Jurisdiction of the High Court Over Administrative Posts Within the Judiciary:
The High Court argued that it had the authority to fill administrative posts included in the judicial service cadre, citing the decisions in Bagchi's and Ranga Mahammad's cases. However, the Supreme Court clarified that the High Court's control under Article 235 pertains to judicial posts and not administrative posts within the secretariat. The High Court's interpretation was deemed incorrect, as the posts of law secretary, deputy law secretary, and superintendent and legal remembrancer are not district courts or courts subordinate to district courts under Article 235.
4. Implementation of the High Court's Transfer Orders by the Government:
The Supreme Court held that the High Court was within its powers to recall and post judicial officers to district courts, as there was no fixed period for their administrative postings. However, the High Court exceeded its authority by transferring officers to administrative posts within the secretariat. Despite this, the government implemented the High Court's orders after the High Court's decision on March 6, 1967. The Supreme Court upheld the High Court's orders regarding the recall of officers to judicial posts but invalidated the transfers to administrative posts, noting that these should be managed by mutual understanding between the High Court and the government.
Conclusion:
The Supreme Court allowed the appeals in part, setting aside the High Court's ruling that the officers had no authority to hold their posts after October 10, 1966. It upheld the High Court's power to recall officers to judicial posts but invalidated its orders transferring officers to administrative posts within the secretariat. The judgment emphasizes the need for cooperation between the High Court and the government to avoid conflicts and ensure public interest. The parties were directed to bear their own costs.
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1967 (11) TMI 110
Issues:
- Appeal against order of acquittal
- Conviction under Section 409 IPC
- Entrustment and misappropriation of cement
- Fiduciary relationship and breach of trust
Analysis:
The Supreme Court of India heard an appeal filed by the State of Gujarat against the acquittal order by the High Court in a case involving the conviction of the respondent under Section 409 IPC. The case revolved around the alleged misappropriation of forty bags of cement entrusted to the respondent for a construction project. The appellant contended that the respondent breached trust by sending the cement to a godown instead of using it for the designated purpose. The prosecution's case focused on establishing entrustment and misappropriation. However, the High Court acquitted the respondent without detailed reasoning.
The Court highlighted that the absence of a complaint by the contracting party against the respondent raised doubts regarding the entrustment and misappropriation allegations. The Court noted the lack of evidence regarding the terms of the contract between the government and the contractor, emphasizing that the transaction appeared to be a sale rather than an entrustment creating a fiduciary relationship. The Court referenced legal precedents to define "entrustment" under Section 405 IPC, emphasizing the need for a trust relationship and ownership continuity for an act to constitute breach of trust.
Drawing parallels with a similar case, the Court emphasized the importance of intent and control over the property in determining entrustment. The Court rejected the appellant's argument by distinguishing a sale from an entrustment, emphasizing that the government's sale of cement did not establish a fiduciary relationship. The Court dismissed the relevance of a legal precedent cited by the appellant, as the core issue of entrustment was not in dispute in that case.
Ultimately, the Court concluded that the prosecution failed to prove the alleged entrustment, rendering the misappropriation claim irrelevant. Consequently, the Court dismissed the appeal, upholding the High Court's decision to acquit the respondent. The judgment elucidated the distinction between a sale and entrustment, emphasizing the need for a fiduciary relationship to establish a breach of trust under Section 409 IPC.
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