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1969 (9) TMI 121
The Supreme Court allowed three petitions under Article 32, stating that the detentions were illegal due to delays in considering representations by the State Government. The detenus were entitled to prompt consideration of their representations, which was not done, leading to their immediate release.
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1969 (9) TMI 120
Issues Involved:
1. Validity of the application for stage carriage permits under Section 46 of the Motor Vehicles Act, 1939.
2. Jurisdiction and power of the Regional Transport Authority and the Appellate Committee.
3. Compliance with the mandatory provisions of Section 46 and the prescribed form.
4. Authority of the High Court under Articles 226 and 227 of the Constitution.
Detailed Analysis:
Validity of the Application for Stage Carriage Permits under Section 46 of the Motor Vehicles Act, 1939:
The appellant, a State Corporation, applied for stage carriage permits on several routes. The applications were contested on the grounds that they did not fully comply with the mandatory information required under Section 46 of the Motor Vehicles Act, 1939, and the prescribed form. The Regional Transport Authority initially granted the permits to the appellant. However, the Appellate Committee later found that certain essential details were missing from the appellant's application, leading to a remand for reconsideration.
Jurisdiction and Power of the Regional Transport Authority and the Appellate Committee:
The Appellate Committee remanded the case to the Regional Transport Authority, directing the appellant to furnish complete information. The High Court later held that the Appellate Committee had no jurisdiction to allow the appellant to amend its defective application. The High Court remanded the appeals to the Appellate Committee to reconsider the applications of all parties except the appellant.
Compliance with the Mandatory Provisions of Section 46 and the Prescribed Form:
The High Court found that the appellant had not properly complied with the requirements of Section 46, particularly in columns 10, 14, and 15 of the prescribed form. The court held that the application lacked necessary particulars, making it defective and not deserving consideration. The Supreme Court, however, disagreed, stating that the form prescribed by the State Government is valid and within the rule-making power under Section 68 of the Act. The Court emphasized that while the application must substantially conform to the requirements, the authorities do not have the power to summarily reject an application for lacking certain details.
Authority of the High Court under Articles 226 and 227 of the Constitution:
The Supreme Court acknowledged the High Court's power under Articles 226 and 227 to quash an order when the error is apparent on the face of the record. However, it clarified that the High Court's view that the application was invalid due to non-compliance with certain particulars was incorrect. The Supreme Court held that the application should be considered on merits, and any deficiencies in information should be addressed during the consideration process, not as a ground for summary rejection.
Conclusion:
The Supreme Court set aside the High Court's order and restored the Appellate Committee's order, allowing the appellant to furnish additional particulars. The Court emphasized that the application must be considered on its merits, and any deficiencies should be addressed during the evaluation process, not as grounds for summary rejection. The respondents were ordered to pay the costs of the appellant.
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1969 (9) TMI 119
Issues Involved:
1. Whether the order of the Central Government under Section 33 of the Act is liable to be set aside on the grounds that it was passed by an officer not authorized to do so under Section 34 of the Act, because it was passed without giving an oral hearing to the petitioner and because he did not give reasons for the order?
2. Whether the order of the Chief Settlement Commissioner passed under Section 24(1) of the Act was bad for an error of law apparent on the face of the record and because he did not give reasons?
3. Whether the order of the Settlement Officer with the delegated powers of the Regional Settlement Commissioner, dated 6-11-1962, was wrong?
Issue-wise Detailed Analysis:
1. Order of the Central Government under Section 33 of the Act:
The petitioner challenged the order of the Central Government on three grounds: it was passed by an unauthorized officer, it was passed without giving an oral hearing, and it did not provide reasons for the dismissal. The court held that the Deputy Secretary was authorized to transact the business of the Government under the Transaction of Business Rules, thus rejecting the first ground. The court also found that the Central Government was not bound to give an oral hearing to the petitioner, as the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and the Rules framed thereunder did not require it. The court emphasized that the principles of natural justice do not necessitate an oral hearing at every stage. Lastly, the court held that the Central Government was not required to provide reasons for its order if it adopted the reasons given by the Chief Settlement Commissioner, which were found to be sufficient and fully reasoned.
2. Order of the Chief Settlement Commissioner under Section 24(1) of the Act:
The petitioner contended that the Chief Settlement Commissioner made an error of law by holding that no proceeding for partition was pending on 31-12-1960 and did not provide reasons for his order. The court found that the view taken by the Chief Settlement Commissioner was arguable, as the petitioner did not move the Assistant Settlement Commissioner for the division of the property following the remand order dated 11-1-1960. The court also noted that the Chief Settlement Commissioner alternatively assumed that a partition proceeding was pending and held that the property was not partible. The court concluded that the Chief Settlement Commissioner was entitled to adopt the reasons given by Shri Behl and that the order was not bad for want of reasons.
3. Order of the Settlement Officer with delegated powers of the Regional Settlement Commissioner, dated 6-11-1962:
The petitioner argued that the order of the Settlement Officer was wrong as it did not take into account the opinion expressed by Shri Parshotam Sarup. The court found that the order of Shri Behl was a fully discussed and reasoned order and that it was not shown to be wrong in any respect. The court emphasized that the merits of the questions decided by the officer acting under the Act are not for the court to review, as it is not sitting in appeal over those orders.
Conclusion:
The court dismissed the writ petition, finding no merit in the grounds raised by the petitioner. The court upheld the orders of the Central Government, the Chief Settlement Commissioner, and the Settlement Officer with the delegated powers of the Regional Settlement Commissioner, concluding that they were valid and properly reasoned. No order was made as to costs.
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1969 (9) TMI 118
Issues Involved:
1. Whether the Industrial Tribunal acted illegally and without jurisdiction in making the Board liable for payment of bonus.
2. Whether there exists an employer-employee relationship between the Board and the Dock Labour workmen.
Issue-wise Detailed Analysis:
1. Tribunal's Jurisdiction and Liability of the Board:
The appeal, by special leave, by the Vizagapatam Dock Labour Board (the Board), contests the Industrial Tribunal's award that directed the Board to pay bonus to dock workers for the years 1964-65, 1965-66, and 1966-67. The Central Government had referred the question of bonus payment to the Tribunal, which included the Board, the Visakhapatnam Stevedores Association, individual Stevedores, and two Unions representing workers.
The Unions claimed that the work at Visakhapatnam Port was similar to that at other major ports where settlements on bonus had been reached. They argued that since the Board and the Stevedores Association were governed by the Dock Workers (Regulation of Employment) Act 1948 and the Vizagapatam Dock Workers (Regulation of Employment) Scheme, 1959, their claim for bonus was justified.
The Stevedores Association contested the claim, asserting that the dock workers were employees of the Board, not the Stevedores, and thus, no claim for bonus could be made against them. The Board also contested, stating that it was a statutory body and not an industry under the Industrial Disputes Act, and the Stevedores were the actual employers responsible for the bonus.
The Tribunal, however, held the Board liable for the bonus, considering it the employer of the dock workers. It awarded bonus rates of 13 paise per ton for 1964-65, 14 paise per ton for 1965-66, and 15 paise per ton for 1966-67.
The Supreme Court found that the claim for bonus was primarily directed against the Stevedores Association and its members. The Tribunal was not justified in making the Board liable for the payment of bonus, as the claim was against the Stevedores. The Tribunal's understanding that the claim was against the Stevedores is evident from its own statements.
2. Employer-Employee Relationship:
The second contention was whether there existed an employer-employee relationship between the Board and the dock workers. The Supreme Court examined the Act and the Scheme, which regulate the employment of dock workers. The Board maintains a Dock Labour pool, supplies labor to the Stevedores, and collects wages from them to pay the workers. The Board also handles disciplinary actions and fixes wages.
The Court noted that the Board's primary responsibility is the administration of the Scheme, ensuring regular employment and adequate labor supply. The Stevedores are the actual employers who control and supervise the dock workers. The Board acts as an agent for the registered employers when allocating workers and handling payments.
The Court concluded that the Board could not be considered the employer of the dock workers. The relationship of master and servant exists between the Stevedores and the dock workers. The Board's functions under the Scheme do not establish an employer-employee relationship.
The Court also considered whether the Board could be considered an industry under the Industrial Disputes Act. It concluded that the Board does not carry on an industry, and thus, the Tribunal's direction for the Board to pay the bonus was incorrect.
Conclusion:
The Supreme Court set aside the Industrial Tribunal's order dated May 24, 1968, and remanded I.D. No. 10 of 1967 to the Tribunal for disposal according to law. The Tribunal is to consider the claim against the Stevedores Association and its members, excluding the Dock Labour Board from the proceedings. The appeal was allowed, and parties were directed to bear their own costs.
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1969 (9) TMI 117
Issues Involved:
1. Validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950.
2. Whether the licence fee for renewal constitutes a fee or a tax.
3. Examination of services rendered by Inspectors under the Factories Act 1948.
Issue-wise Detailed Analysis:
1. Validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950:
The appeal concerns the validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950, which prescribe the licence fee for factories. The appellant company, operating several factories in Delhi, challenged the annual licence fee of Rs. 12,775.00, arguing it was excessive and not commensurate with services rendered. The High Court dismissed the petition, and the company appealed.
2. Whether the licence fee for renewal constitutes a fee or a tax:
The appellant contended that the renewal fee was merely an endorsement for the next year and did not entail services commensurate with the amount charged, thus lacking the element of quid-pro-quo, which distinguishes a fee from a tax. The High Court, however, found that the work carried out by Inspectors under the Act, ensuring health and welfare provisions for workers, constituted services rendered in return for the fee. The court noted that 60% of the licence fee was used for running the department.
The Supreme Court referenced prior cases, including *Corporation of Calcutta v. Liberty Cinema* and *H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious & Charitable Endowments, Mysore*, to determine the nature of the levy. It was established that a fee does not lose its character due to compulsion or lack of direct service to individuals. The levy is a fee if there is a reasonable relation between the levy and the expenses for maintaining the service.
3. Examination of services rendered by Inspectors under the Factories Act 1948:
The Supreme Court examined the Factories Act provisions, highlighting the extensive duties of Inspectors, including ensuring compliance with health, safety, and welfare standards. Inspectors provide technical advice and guidance, which benefits factory owners by preventing dangerous conditions and ensuring timely repairs. The court concluded that the Inspectors' duties involve significant technical knowledge and provide substantial benefits to factory owners, thus justifying the licence fee.
The Supreme Court affirmed the High Court's finding that 60% of the licence fee was spent on services for factory owners, and there was no evidence that the fees were merged into the general public revenue. Therefore, the licence fee was not a tax but a fee appropriately levied.
Conclusion:
The Supreme Court dismissed the appeal, upholding the validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950. The court concluded that the licence fee for renewal was a fee, not a tax, and was justified by the services rendered by Inspectors under the Factories Act 1948. The appeal was dismissed with costs.
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1969 (9) TMI 116
Issues:
1. Validity of West Bengal Criminal Law Amendment (Special Courts) Amending and Validating Ordinance, 1965 and Act XXVIII of 1965.
2. Jurisdiction of the State Legislature to validate an order of transfer quashed by a writ of certiorari.
3. Scope and effect of Validating Act and Ordinance in relation to court judgments.
4. Competence of the legislature to pass retrospective laws and amend statutes.
5. Authority of the legislature to pass Amending and Validating Acts.
6. Effect and validity of retrospective legislation on court judgments.
Analysis:
Issue 1:
The appellant challenged the West Bengal Criminal Law Amendment (Special Courts) Amending and Validating Ordinance, 1965, and Act XXVIII of 1965. These laws aimed to validate the withdrawal or transfer of cases from Special Courts. The Ordinance and Act retroactively validated past actions taken by the State Government regarding case transfers.
Issue 2:
The appellant argued that the State Legislature and Governor could not validate an order of transfer previously quashed by a writ of certiorari. However, the High Court held that the retrospective operation of the Ordinance and Act validated the original transfer order from its inception.
Issue 3:
The Fourth Special Court's interpretation of the Validating Act and Ordinance was challenged. The High Court correctly held that the legislation validated past actions without affecting court judgments. The legislature's power to amend laws retrospectively was upheld, ensuring the legality of past transactions.
Issue 4:
The judgment highlighted the competence of a State Legislature to pass laws within its constitutional authority, subject to limitations. The legislature can enact laws prospectively or retrospectively, with the power to amend statutes to remedy defects or validate past actions.
Issue 5:
The concept of Amending and Validating Acts was discussed, emphasizing their role in amending laws retrospectively to protect and validate past actions. The legislature's jurisdiction to pass such Acts, even after court judgments, was affirmed through legal precedents.
Issue 6:
The judgment cited various cases, such as Udai Ram Sharma v. Union of India, to illustrate the effect and validity of retrospective legislation on court judgments. It established that if a law does not violate constitutional limitations, it can override court decisions and cure identified defects.
In conclusion, the appeal challenging the Validating Ordinance and Act was dismissed, affirming the legislature's authority to pass retrospective laws and validate past actions, even in the presence of court judgments.
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1969 (9) TMI 114
Issues:
1. Validity of the arbitration agreement under the Indian Arbitration Act.
2. Disclosure of arbitrators' names and its compliance with natural justice.
3. Conflict between the Rules of Arbitration of the Indian Chamber of Commerce and the provisions of the Act.
4. Impact of rules on the powers and jurisdiction of the court under relevant provisions of the Act.
Detailed Analysis:
Issue 1: The main issue in this case was the validity of the arbitration agreement under the Indian Arbitration Act. The appellant argued that the arbitration agreement was void and ineffective due to conflicting clauses in the contract. The contract specified that disputes would be referred to the Indian Chamber of Commerce for arbitration, but the appellant was not a member of the Chamber. The appellant contended that the Rules of the Tribunal of Arbitration of the Chamber were illegal and void. However, both the High Court and the Supreme Court rejected these contentions and upheld the validity of the arbitration agreement.
Issue 2: Another crucial issue raised was the non-disclosure of the names of the arbitrators by the Registrar of the Chamber of Commerce. The appellant argued that this non-disclosure violated natural justice and infringed the provisions of the Act. The appellant sought information regarding the arbitrators but was not provided with the names. The Court examined the Rules of Arbitration of the Chamber, which allowed for non-disclosure of arbitrators' names to non-members. The Court held that the power given to the Registrar was discretionary and did not conflict with the Act as parties would eventually know the arbitrators' names once proceedings commenced.
Issue 3: The appellant also contended that Rule III of the Rules of Arbitration of the Indian Chamber of Commerce conflicted with the Act. The Rule stated that the Tribunal would consist of persons selected by the Chamber's Committee. The appellant argued that this rule was in conflict with the Act. The Court examined a similar judgment of the Calcutta High Court but disagreed with its interpretation, holding that the Chamber's Rules did not offend any sections of the Act.
Issue 4: The final issue revolved around the impact of the Chamber's Rules on the powers and jurisdiction of the court under the relevant provisions of the Act. The Court emphasized that the appellant had agreed to submit to the arbitration of the Chamber, thereby being bound by all its Rules. The Court found no conflict between the Chamber's Rules and the Act, stating that the Rules did not interfere with the court's powers under the Act. The Court highlighted that the Chamber's non-disclosure rule aimed to prevent any party from influencing arbitrators before proceedings commenced.
In conclusion, the Supreme Court upheld the validity of the arbitration agreement, dismissed the appellant's contentions regarding non-disclosure of arbitrators' names, and found no conflict between the Chamber's Rules and the provisions of the Indian Arbitration Act. The Court emphasized the discretionary power of the Registrar and the importance of parties being able to raise objections during arbitration proceedings. The appeal was dismissed, with no order as to costs.
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1969 (9) TMI 113
Issues Involved:
1. Section 5(1) of the Minimum Wages Act, 1948 and Article 14 of the Constitution.
2. Constitutionality of the Act concerning Article 19(1)(g).
3. Necessity of appointing a committee under Section 5(1)(a) of the Act.
4. Quasi-judicial nature of fixing minimum wages and principles of natural justice.
5. Permissibility of fixing different minimum wages in different industries.
6. Division of the State into zones for fixing different rates of minimum wages.
7. Rational basis for the division of the State into zones.
8. Valuation of food provided to employees.
Detailed Analysis:
1. Section 5(1) of the Minimum Wages Act, 1948 and Article 14 of the Constitution:
The contention was that Section 5(1) of the Act is violative of Article 14 as it confers unguided and uncontrolled discretion on the Government to follow either of the alternative procedures prescribed in clauses (a) and (b). The Court held that the power under Section 5(1) is not arbitrary as the Government can be trusted to exercise that power to further the purposes of the Act. The legislative policy is clear, and the Government is merely charged with implementing that policy. Discretion to select one of the two procedures depends on the nature of the employment and the information the Government has in its possession.
2. Constitutionality of the Act concerning Article 19(1)(g):
The provisions of the Act were challenged as they allegedly interfered with the freedom of trade guaranteed under Article 19(1)(g). The Court reiterated that the Act aims to prevent the exploitation of unorganized labor and ensure minimum wages, which is a step towards fulfilling the mandate of Article 43 of the Constitution. The Act does not violate Article 19(1)(g) as the freedom of trade does not include the freedom to exploit.
3. Necessity of appointing a committee under Section 5(1)(a) of the Act:
It was argued that the Government must appoint a committee under Section 5(1)(a) to inquire and advise on fixing minimum wages. The Court held that the Government has the discretion to choose between the procedures in Section 5(1)(a) and Section 5(1)(b). The Government had sufficient data to proceed under Section 5(1)(b) and had consulted the advisory committee constituted under Section 7.
4. Quasi-judicial nature of fixing minimum wages and principles of natural justice:
The contention was that fixing minimum wages is a quasi-judicial act, and the Government failed to observe the principles of natural justice. The Court noted that whether the power is quasi-judicial or administrative, the principles of natural justice apply. However, the procedure adopted was adequate and effective, and reasonable opportunity was given to all concerned parties to represent their case.
5. Permissibility of fixing different minimum wages in different industries:
The argument that the Government cannot fix different minimum wages for different industries was dismissed. The Court referred to its earlier decision in M/s. Bhaikusa Yamasa Kahatriya v. Sangamner Akola Taluka Bidi Kamgar Union, which upheld the Government's power to fix different minimum wages based on varying economic conditions, cost of living, and nature of work.
6. Division of the State into zones for fixing different rates of minimum wages:
The division of the State into zones and fixing different rates of minimum wages for different zones was challenged. The Court held that such division is permissible under Section 3(3) and is consistent with the scheme of the Act. The Government's decision was based on rational considerations, such as the economic significance of Bangalore and Mangalore.
7. Rational basis for the division of the State into zones:
The Court found that the division into zones was done on a rational basis. The Government provided valid reasons for its decision, including the status of Bangalore as the state capital and Mangalore as a major port. The cost of living index was not the sole factor; other considerations were also relevant.
8. Valuation of food provided to employees:
The valuation of the food provided to employees was contested as unreasonably low. The Court found this argument petty and misconceived. The minimum wage calculation includes various components, not just food. The notification allowed employers to deduct the cost of meals provided, which was an option, not a duty. The relevant rule for valuation was Rule 22(2)(v), considering food as an amenity.
Conclusion:
The appeal and the writ petition were dismissed with costs. The Court permitted the owners of residential hotels and eating houses to pay the arrears of minimum wages within six months, subject to interest at 6% per annum.
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1969 (9) TMI 112
Issues Involved:
1. Determination of Standard Rent
2. Applicability of Section 14(2) of the Delhi Rent Control Act, 1958
3. Legal Presumption of Postal Money Order Dispatch
4. Deposit of Rent for Three Consecutive Months
Detailed Analysis:
1. Determination of Standard Rent
The appellant, Chawla, contended that the Controller was bound to determine the standard rent of the premises in the proceeding instituted by Sethi, and since the Controller failed to do so, the order in ejectment was illegal. The court clarified that under the Delhi Rent Control Act, 1958, the standard rent must be determined by the Controller. Sections 6 and 9 of the Act provide the framework for determining the standard rent, which must be done through an application made within two years from the commencement of the Act or from the date of letting. The court held that the prohibition against recovery of rent in excess of the standard rent applies only from the date on which the standard rent is determined by the Controller and not before that date. The court rejected the argument that the standard rent could be determined as a defense in an ejectment proceeding without adhering to the limitation period prescribed under Section 12 of the Act.
2. Applicability of Section 14(2) of the Delhi Rent Control Act, 1958
Chawla argued that the courts below erred in holding that he could not obtain the benefit of Section 14(2) of the Act. Section 14(2) provides that no order for the recovery of possession shall be made if the tenant makes payment or deposits as required by Section 15. However, the court noted that Chawla had previously committed default in payment of rent and had obtained the benefit of Section 14(2) by depositing the due amount in an earlier proceeding. Since Chawla had again defaulted in payment for three consecutive months, he was not entitled to claim the protection of Section 14(2). The court emphasized that the proviso to Section 14(2) is mandatory, and Chawla was not entitled to the benefit due to his previous default.
3. Legal Presumption of Postal Money Order Dispatch
Chawla contended that the legal presumption arising from the dispatch of a postal money order for Rs. 320 addressed to Sethi had been ignored by all the courts. The court found that Chawla failed to prove that the money order was duly addressed to Sethi and that Sethi refused to accept it. The only evidence was a postal receipt that did not bear Sethi's residential address. Sethi's testimony that no one had tendered the postal money order to him was believed by the courts. Therefore, this contention was dismissed.
4. Deposit of Rent for Three Consecutive Months
Chawla argued that he had made a deposit of rent for three months and if that deposit were taken into account, he was not in arrears for three consecutive months at the date of the initiation of the proceeding. The court noted that this plea was not raised before the Rent Controller or the Rent Control Tribunal and was sought to be urged for the first time before the High Court, which declined to entertain it. The court did not permit counsel to raise this plea as its determination depended on proof of facts that were never proved.
Conclusion:
The Supreme Court upheld the decisions of the Rent Controller, the Rent Control Tribunal, and the High Court. The appeal was dismissed with costs, affirming that the Controller's failure to determine the standard rent did not invalidate the ejectment order, and Chawla was not entitled to the benefit of Section 14(2) due to his previous defaults. The legal presumption regarding the postal money order was not substantiated, and the plea concerning the deposit of rent for three months was not entertained.
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1969 (9) TMI 111
Issues Involved:
1. Deceptive similarity between the trademarks "DROPOVIT" and "PROTOVIT".
2. Whether "DROPOVIT" is an invented word or descriptive.
Detailed Analysis:
1. Deceptive Similarity:
The primary issue addressed was whether the trademark "DROPOVIT" was deceptively similar to "PROTOVIT" under Section 12(1) of the Trade and Merchandise Marks Act, 1958. The court evaluated whether the respondent's mark so nearly resembled the appellant's mark as to be "likely to deceive or cause confusion." It was emphasized that the probable effect on ordinary customers must be considered, not the intention to deceive.
The court referenced the distinction between "to deceive" and "to cause confusion" as explained in Parker-Knoll Ltd. v. Knoll International Ltd., noting that confusion can occur without any false representation. The tests for comparing word marks, as formulated by Lord Parker in Pianotist Co., Ltd.'s application, were applied: examining the look and sound of the words, the goods they apply to, the nature of the customers, and all surrounding circumstances.
The court acknowledged the visual and phonetic similarities between "DROPOVIT" and "PROTOVIT," particularly the common suffix "VIT," which is a known abbreviation for vitamin preparations. However, it concluded that the uncommon elements in the words, particularly the differing consonants, made confusion unlikely. The presence of numerous other trademarks with the suffix "VIT" further reduced the likelihood of confusion.
It was also noted that vitamin preparations are typically sold by licensed dealers, which further diminishes the risk of confusion. The court ultimately agreed with the High Court and the Joint Registrar that there was no real tangible danger of confusion, and the application for rectification was dismissed.
2. Invented Word or Descriptive:
The second issue was whether "DROPOVIT" was an invented word or merely descriptive. Section 9(1) of the Act requires a trade mark to contain at least one invented word or words with no direct reference to the character or quality of the goods.
The appellant argued that "DROPOVIT" was a combination of "DROP OF VITAMIN," suggesting it was descriptive. However, the court referred to the Diabolo case, where an invented word was defined as one that does not convey any obvious meaning to ordinary English speakers. The court found that "DROPOVIT" did not immediately suggest "DROP OF VITAMIN" to an ordinary person without explanation.
The court also noted that the original application for rectification did not claim "DROPOVIT" was descriptive, implying that even the appellant's legal advisers did not initially view it as such. The court agreed with the High Court's reasoning that "DROPOVIT" was an invented word, as it did not remind an ordinary person of its component words without some thought or explanation.
Conclusion:
The appeal was dismissed, with the court holding that "DROPOVIT" was not deceptively similar to "PROTOVIT" and was an invented word entitled to registration. The application for rectification was therefore denied, and the respondent's trademark was allowed to remain on the Register. The judgment affirmed the decisions of the High Court and the Joint Registrar of Trade Marks.
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1969 (9) TMI 110
Whether the infringement is such as is likely to deceive or cause confusion?
Held that:- In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the plaintiff's trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondent's trade mark is deceptively similar o that of the appellant the fact that the word 'INDIA' is added to the respondent's trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark.
Appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiff's trade mark "RUSTON" and from using it in connection with the engines machinery and accessories manufactured and sold by it under the trade mark of "RUSTAM INDIA". The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of "RUSTAM" or "RUSTAM INDIA". The appellant is also granted a decree for nominal damages to the extent of ₹ 100/-
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1969 (9) TMI 109
Whether the phrase "person to whom a shop has been sold" in cl. 21 of r. 5.34 means a "person whose bid has been provisionally accepted"?
Held that:- In the present case the first part of cl. 21 applies. It is not disputed that the Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under cl. 33 of Ex. D-23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential pre-requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price. For these reasons we hold that the judgment of the Punjab High Court dated August 19, 1963 in L.P.A. No. 50-D of 1960 is correct and this appeal must be dismissed.
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1969 (9) TMI 108
Whether the order of reinstatement can be said to be improper as urged by counsel?
Held that:- The regional manager might well feel that if the respondent was capable of collecting evidence against the company, he might in future collect perhaps evidence of a more dangerous and harmful nature. Obviously, if he cannot repose confidence in the respondent, if reinstated, he cannot make any use of Ms services as a stenographer. In the circumstances, we think that the tribunal ought not to have directed his reinstatement despite its conclusion that the termination of his services was wrongfully made, but ought to have awarded suitable compensation instead.
As to the suitable compensation, considering the fact that the respondent had served the company only for a year and that it is not too difficult nowadays for competent stenographers to obtain suitable employment, we think it fair to direct the company to pay to him compensation equivalent to one year's salary at the rate of ₹ 307 per month. Set aside the order of reinstatement passed by the tribunal and order the appellant-company to pay to the respondent compensation equivalent to twelve months' salary at the rate of ₹ 307 per month with interest thereon at the rate of 6 per cent per annum from 17 July 1967 till payment
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1969 (9) TMI 107
Issues:
1. Whether the sale of cotton by auction under the cotton pool scheme is liable to tax under the M.P. General Sales Tax Act, 1958?
2. Are the oil-engines and centrifugal pumps sold by the society considered agricultural machinery?
3. Are oil-engines and centrifugal pumps sold to agriculturists for agricultural purposes considered agricultural machinery under the M.P. General Sales Tax Act, 1958?
Analysis:
Issue 1:
The Madhya Pradesh State Co-operative Marketing Society, Jabalpur, was assessed for sales under the cotton pool scheme and sales of oil-engines and pumping sets. The society contended it acted as an auctioneer, not a dealer, for cotton sales. However, the Assistant Commissioner and Tribunal held the society was liable for tax as a dealer. The society's control over the sales process and transactions indicated it was more than an auctioneer, leading to the conclusion that the society was a "dealer" as per the Act. The court found the society's involvement in the sales process went beyond that of a mere intermediary, distinguishing it from cases where auctioneers were not considered dealers. Therefore, the sales of cotton by the society were deemed taxable under the Act.
Issue 2:
Regarding the second issue, the Tribunal found that the oil-engines and pumping sets sold were not solely for agricultural purposes but also for other uses. Previous court decisions established that for machinery to be considered agricultural, its primary and principal use must be for agriculture. The society failed to prove that the oil-engines and pumps were commonly known as agricultural machinery in commercial circles. As a result, the court answered this question in the negative, indicating that the items sold were not classified as agricultural machinery.
Issue 3:
The final issue questioned whether the oil-engines and pumps sold to agriculturists for agricultural purposes were exempt under item 44 of Part II of Schedule II. The court clarified that the taxability of these items was based on their nature, not the buyer's purpose. Since the items were not classified as agricultural machinery, they were taxable under item 44, regardless of the buyer's intent. The question was deemed ill-conceived, and the court answered it in the negative.
In conclusion, the court affirmed that the sale of cotton by the society was taxable, the oil-engines and pumps were not considered agricultural machinery, and their taxability was determined by their classification under item 44. The reference was disposed of accordingly, with costs awarded to the Commissioner of Sales Tax, M.P.
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1969 (9) TMI 106
Issues Involved:
1. Construction of contract documents and whether the contract was divisible.
2. Legal validity of the Tribunal's order regarding the imposition of sales tax on switchgear.
Issue-wise Detailed Analysis:
1. Construction of Contract Documents and Divisibility:
The primary issue was whether the terms set out in the two agreements for the supply of materials stood independent of the execution and erection of the power supply system and cabling work. The court noted that if the supply of materials was an essential part of the erection of the electrical system, it could not be construed as a sale by the contractor to the customer, and thus, no sales tax would be applicable. Conversely, if the supply of materials was regarded as separate from the use of the materials in putting up the electrical system, then sales tax would be payable.
The Assistant Superintendent of Sales Tax and the Deputy Commissioner of Sales Tax held that the materials supplied were separate from the work done and thus taxable. However, the Commercial Taxes Tribunal disagreed, concluding that there was no independent transaction of sale and that the contract was an indivisible works contract. The Tribunal's decision was based on the terms of the agreements, which indicated that the supply of materials and the execution of work were part of a single transaction.
The High Court upheld the Tribunal's view, emphasizing that the property in the materials passed only with the delivery of the entire power system and the completion of the cabling work, thus supporting the indivisibility of the contract. The court referenced significant judgments, including the State of Madras v. Gannon Dunkerley and Carl Still G.m.b.H. v. The State of Bihar, to support its conclusion that the contract was a works contract and not subject to sales tax.
2. Legal Validity of Tribunal's Order on Switchgear:
The second issue was whether the State of Bihar could impose sales tax on the dealer for the sale of switchgear manufactured by Jyoti Galor Emeg. Ltd. The Tribunal found that the switchgear was dispatched from Baroda to Barsua (Orissa), and since the movement of goods commenced from Baroda, Bihar had no jurisdiction to impose sales tax on this transaction. The High Court agreed with the Tribunal, noting that the transaction was not subject to Central sales tax as it was an inter-State trade, and the tax could only be levied in the state from which the goods were dispatched.
The High Court concluded that the Tribunal's decision was correct and did not warrant a referral to the High Court. The court noted that the Advocate-General did not argue this issue further, indicating acceptance of the Tribunal's conclusion.
Conclusion:
The High Court held that the Tribunal correctly construed the contract as a works contract, not subject to sales tax under the Central Sales Tax Act. The court answered Question No. (1) in favor of the assessee and against the department, affirming the Tribunal's decision. The reference was answered accordingly, with no order as to costs.
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1969 (9) TMI 105
The High Court of Madhya Pradesh ruled that the turnover of Rs. 1,85,305-6-9 representing the value of cotton is not liable for sales tax in the hands of the assessee. The assessee was found to be acting as an agent on behalf of the mills in purchasing and supplying the cotton. The Tribunal's decision was upheld, and the assessee was awarded costs.
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1969 (9) TMI 104
Issues:
1. Interpretation of rules regarding deduction of credit sales for sales tax assessment.
2. Review jurisdiction of the Tribunal in rectifying orders of the Board of Revenue.
Analysis:
1. The judgment revolves around the interpretation of rules concerning the deduction of credit sales for sales tax assessment. The assessee, M/s. Budhram Kashiram, had credit sales to registered dealers, seeking deduction under section 5 of the Bihar Sales Tax Act, 1947. The assessing officer rejected the claim due to the absence of a declaration required under rule 18 of the Bihar Sales Tax Rules, 1949. Despite appeals, the Board of Revenue upheld the requirement of producing the declaration. The Tribunal also dismissed the dealer's contention, leading to a review application. The Tribunal's decision was based on the necessity of the declaration for claiming exemption on credit sales. The High Court was approached to determine if the Tribunal was justified in refusing to rectify the Board's order under section 24(5)(a) of the Act.
2. The Tribunal's decision was influenced by the Supreme Court's ruling in a similar case, emphasizing the importance of the declaration but allowing for exemption based on other evidence if the Sales Tax Officer is satisfied. The Court highlighted that the Board of Revenue lacked the power to review its order, and hence, the Tribunal could not possess a higher power. The Tribunal's jurisdiction for review was found to be limited by the provisions of the Bihar Sales Tax Act, 1947. The Court referenced a Supreme Court decision to support the Tribunal's stance on the review jurisdiction, emphasizing the distinction between an erroneous decision and an error apparent on the face of the record.
3. The central issue was whether the dealer was obligated to produce a declaration for credit sales to claim deduction from the taxable turnover. The Tribunal differentiated the Orissa case, stating that the selling dealer could be granted exemption without the declaration if the Sales Tax Officer was convinced by other evidence. However, without such satisfaction, the dealer could not benefit from the exemption. The Tribunal referred to rule 18 of the Bihar Sales Tax Rules, highlighting the conditions for claiming deduction from the gross turnover for sales to registered dealers. The absence of material supporting the goods' use as required by the rule led to the Tribunal's decision being upheld, resulting in the question being answered against the assessee.
In conclusion, the judgment elucidates the significance of adhering to statutory requirements, specifically the production of declarations for claiming deductions on credit sales for sales tax assessment. The Tribunal's jurisdiction for review was delineated within the framework of the applicable sales tax legislation, emphasizing the need for compliance with the rules governing such assessments.
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1969 (9) TMI 103
Issues:
1. Interpretation of the limitation period for filing revision applications under the U.P. Sales Tax Act.
2. Determining the date from which the limitation period must be computed for revision applications filed by the Commissioner of Sales Tax.
3. Whether the provisions of section 10(3-B) apply to revision applications made by the Commissioner of Sales Tax.
Analysis:
The judgment by the High Court of Allahabad dealt with the interpretation of the limitation period for filing revision applications under the U.P. Sales Tax Act. The Commissioner of Sales Tax had filed revision applications against assessment orders made by the Sales Tax Officer, which were filed more than one year after the assessment orders were issued. The central question was whether the limitation period started from the date of assessment and if the revisions were barred by time. Section 10(3)(i) and 10(3-B) of the U.P. Sales Tax Act were pivotal in determining the timeline for filing revision applications.
The Court analyzed the provisions of section 10(3-B) which state that the application for revision must be made within one year from the date of service of the order complained of, with a provision for extension up to six months on proof of sufficient cause. The crux of the issue was whether these provisions applied to revision applications by the Commissioner of Sales Tax. The Court emphasized the need for a reasonable construction of the statute and concluded that the Commissioner's revision application must adhere to the specified limitation period.
Regarding the computation of the limitation period for the Commissioner's revision applications, the Court held that the date on which the Sales Tax Officer made the assessment order should be considered as the date of service of the order on the Commissioner. The Court justified this by highlighting the Commissioner's role as the executive head of the sales tax department, representing the State's interests in revenue matters under the U.P. Sales Tax Act. The Court inferred that the Commissioner's knowledge of the assessment order through the Sales Tax Officer's actions should be deemed as notice of the order.
The judgment also referenced a previous decision by another Bench of the court in Commissioner of Sales Tax v. M/s. Mangal Sen Shyam Lal, which supported the Court's interpretation of the limitation period for revision applications. Consequently, the Court ruled that the revision applications filed by the Commissioner were time-barred. The references were answered accordingly, and the respondent was awarded costs.
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1969 (9) TMI 102
Issues:
Validity of assessment order based on notice issued to the wrong entity and served improperly.
Analysis:
The judgment pertains to a sales tax revision challenging an assessment order made by the Sales Tax Appellate Tribunal. The issue arose when a notice under rule 12 was issued in the name of an individual proprietor instead of the firm, leading to improper service. The Commercial Tax Officer proceeded with the assessment against the firm based on this flawed notice. The Tribunal accepted the appellant's contention that the notice was not served upon the firm, rendering the assessment order illegal and unenforceable against the firm.
The principal contention was whether the notice was validly issued and served. The notice was tendered to an unknown person at the firm's shop who refused to accept it. The court analyzed the provisions of rule 58 regarding the service of notices, emphasizing the importance of correctly addressing the notice to the dealer, in this case, the firm. The court highlighted that the notice was wrongly issued in the name of the individual proprietor, not the firm, and was served on a person not identified as a manager or agent of the firm, contrary to the rule requirements.
The court emphasized that the service of notice is crucial for a valid assessment order. Citing legal precedents, including State of Andhra Pradesh v. Hoosinbhoy Sons and Co., the court held that an assessment order without proper notice to the dealer would be illegal and ineffective. Additionally, the court noted that the order was made against the individual proprietor, not the firm, further invalidating the assessment. Consequently, the court concluded that the proceedings were vitiated due to improper notice issuance and service, rendering the assessment order illegal and unenforceable against the firm.
In the final decision, the court dismissed the revision case and directed the department to pay costs to the respondent. The judgment underscores the significance of proper notice issuance and service in tax assessments to ensure the validity and enforceability of orders against the correct entity.
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1969 (9) TMI 101
Issues:
- Whether sales tax can be imposed on the sales of coal ash and cinders in the year 1961 and of coal ash and empty drums in the year 1962 by M/s. Perfect Pottery Company Ltd., Ratlam.
- Whether the sales of coal ash and cinders and of empty drums were liable to tax based on the volume, frequency, continuity, and regularity of sales.
Analysis:
The High Court of Madhya Pradesh was tasked with determining whether sales tax could be imposed on the sales of coal ash, cinders, and empty drums by M/s. Perfect Pottery Company Ltd., Ratlam in the years 1961 and 1962. The Sales Tax Tribunal had initially held that these sales were not liable to sales tax as they were not part of the company's business activity but were merely to dispose of waste products or unserviceable stocks. However, the High Court analyzed the volume, frequency, continuity, and regularity of these sales to infer the company's intention to earn profits from these transactions. The court emphasized that the sales were not isolated incidents but were made regularly in the course of the company's usual business activity, contributing to its commercial profits.
Moreover, the court referred to a similar case where the Supreme Court had held that when subsidiary products are produced regularly and sold from time to time, an intention to carry on business in those items could be attributed to the company. The court highlighted that sales of coal ash, when regularly and continuously produced as a subsidiary product, were liable to be assessed for sales tax. Based on this precedent and the analysis of the sales activities of M/s. Perfect Pottery Company Ltd., the High Court concluded that the sales of coal ash, cinders, and empty drums were indeed subject to sales tax. The court answered the reference in the affirmative, ruling in favor of the Commissioner of Sales Tax and awarding costs to the Commissioner.
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