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Showing 141 to 160 of 1469 Records

• 1976 (11) TMI 206
  
  Issues Involved:
  1. Whether an order of 'anticipatory bail' can be competently made by a Court of Session or a High Court under section 438 of the Code of Criminal Procedure, 1973, in case of offences falling under Rule 184 of the Defence and Internal Security of India Rules, 1971.
  
  Detailed Analysis:
  
  Issue 1: Competency of Granting 'Anticipatory Bail' Under Section 438 of the Code of Criminal Procedure, 1973, for Offences Under Rule 184 of the Defence and Internal Security of India Rules, 1971:
  
  The core issue in this case was whether the power to grant 'anticipatory bail' under Section 438 of the Code of Criminal Procedure, 1973, is overridden by Rule 184 of the Defence and Internal Security of India Rules, 1971.
  
  Historical Context and Legislative Intent:
  
  The judgment begins by discussing the historical context and legislative intent behind Section 438. The Law Commission, in its Forty-First Report, highlighted the necessity of anticipatory bail due to the misuse of the legal system by influential persons. This recommendation was accepted by the Central Government, leading to the inclusion of Section 438 in the new Code of Criminal Procedure. The Law Commission stressed that this power should be exercised only in exceptional cases to prevent misuse.
  
  Textual Analysis of Section 438:
  
  Section 438 allows a person who anticipates arrest for a non-bailable offence to apply for bail. The section does not explicitly mention 'anticipatory bail,' but it is implied that the court may direct that the person be released on bail if arrested. This power is extraordinary and is meant to be exercised only in exceptional cases where there is a likelihood of false implication or misuse of liberty.
  
  Textual Analysis of Rule 184:
  
  Rule 184 imposes a ban on releasing a person accused or convicted of contravening the Rules unless two conditions are met: the prosecution must be given an opportunity to oppose the application, and the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such contravention. This Rule does not confer new powers but restricts existing powers under the Code of Criminal Procedure.
  
  Harmonious Construction:
  
  The judgment emphasizes the need for a harmonious construction of Section 438 and Rule 184. Section 438 applies at the stage of apprehension of arrest, while Rule 184 applies once the person is in custody. Therefore, there is no direct conflict between the two provisions. The court held that Rule 184 does not stand in the way of granting 'anticipatory bail' under Section 438.
  
  Guidelines for Exercising Power Under Section 438:
  
  Even though Rule 184 does not apply directly to anticipatory bail, the policy behind it should guide the court. The court should not grant anticipatory bail unless the prosecution is given an opportunity to oppose the application, and there are reasonable grounds for believing that the person is not guilty of the contravention.
  
  Case-Specific Application:
  
  In the present case, the High Court had dismissed the application for anticipatory bail based on its earlier decisions, which held that Rule 184 barred the granting of such bail. The Supreme Court set aside this order and remanded the case back to the High Court to decide the application on merits, emphasizing the need to give the prosecution an opportunity to be heard.
  
  Conclusion:
  
  The Supreme Court allowed the appeal, set aside the High Court's order, and directed the High Court to decide the application for anticipatory bail on merits. The appellant was allowed to remain on bail until the High Court's decision.
  
  Separate Judgment:
  
  Fazal Ali, J., concurred with the judgment of Bhagwati, J., and provided additional reasoning. He emphasized that the Defence and Internal Security of India Act and Rules were special laws meant for emergency situations but did not explicitly repeal Section 438 of the Code. He argued for a harmonious construction, stating that Rule 184 supplements Section 438 by providing guidelines for granting anticipatory bail. He also highlighted the importance of protecting the liberty of the citizen and ensuring that the provisions of both statutes coexist without conflict.
  
  Final Orders:
  
  1. Section 438 of the Code has not been repealed or overridden by Rule 184 of the Rules.
  2. There is no real inconsistency between Section 438 of the Code and Rule 184 of the Rules.
  3. Section 438 is an extraordinary remedy and should be exercised sparingly.
  4. In cases covered by Rule 184, the court must comply with the conditions mentioned in Rule 184 before granting anticipatory bail.
  
  The High Court was directed to re-admit the petition and decide it on merits, with the appellant continuing on bail until the High Court's decision.

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• 1976 (11) TMI 205
  
  Issues Involved:
  1. Allegation of corrupt practices by the successful candidate.
  2. Distribution of defamatory leaflets and copies of the newspaper PRACHAND.
  3. Credibility and reliability of witnesses.
  4. High Court's approach to evidence and findings.
  
  Issue-wise Detailed Analysis:
  
  1. Allegation of Corrupt Practices by the Successful Candidate:
  The appellant was elected to the Barwaha Assembly constituency, and the election result was contested on the grounds of corrupt practices. The High Court had set aside the appellant's election based on these allegations. The Supreme Court had to determine whether the allegations of corrupt practices were substantiated by reliable evidence.
  
  2. Distribution of Defamatory Leaflets and Copies of the Newspaper PRACHAND:
  The election petition alleged that the successful candidate and his agents distributed defamatory leaflets and copies of PRACHAND, which contained false statements about the second respondent. The leaflet and the newspaper were claimed to have been distributed in various villages within the constituency. The defense argued that neither the appellant nor his workers distributed these documents and suggested that the second respondent might have fabricated the story.
  
  3. Credibility and Reliability of Witnesses:
  The High Court relied on the testimonies of several witnesses to conclude that the leaflets and PRACHAND were distributed by the appellant and his agents. However, the Supreme Court scrutinized the credibility of these witnesses. The Court noted discrepancies in the witnesses' statements, such as the exact dates of distribution, and their ability to recall the defamatory content verbatim. The Court also observed that many witnesses were partisan or had connections with the second respondent, which raised doubts about their impartiality.
  
  4. High Court's Approach to Evidence and Findings:
  The Supreme Court criticized the High Court for not adhering to well-settled principles in evaluating the evidence. The High Court was found to have disregarded the quasi-criminal nature of the proceedings, which required allegations to be proved beyond reasonable doubt. The Supreme Court emphasized that oral evidence in election cases should be supported by "surer circumstances or unimpeachable documents" to be reliable. The High Court's reliance on the oral testimonies without sufficient corroboration from independent evidence was deemed inappropriate.
  
  Conclusion:
  The Supreme Court concluded that the evidence presented by the second respondent was neither sufficient nor convincing to prove the allegations of corrupt practices beyond reasonable doubt. The Court found serious infirmities in the evidence, including the credibility of witnesses and the lack of corroborative documentary evidence. Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment, and dismissed the election petition.

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• 1976 (11) TMI 204
  
  Issues:
  1. Validity of the cancellation of the notification under section 6 of the Land Acquisition Act.
  2. Compliance with the mandatory provisions of section 5-A of the Act.
  3. Opportunity given to the petitioners for objections under section 5-A.
  4. Effectiveness of the fresh notification issued under section 6.
  
  Analysis:
  1. The judgment involves the challenge of the validity of the cancellation of the notification under section 6 of the Land Acquisition Act. The court emphasized the importance of the proper sequence of events, stating that the notification canceling the section 6 declaration must appear first in the gazette before giving an opportunity to the petitioners. The court ruled that the cancellation of the notification under section 6 was not valid as the petitioners were not informed until its publication in the gazette, rendering the subsequent actions based on the cancellation invalid.
  
  2. The court examined the compliance with the mandatory provisions of section 5-A of the Act. It highlighted that the purpose of section 5-A is to provide landowners with an opportunity to raise objections to the proposed acquisition. The court found that there was a denial of opportunity and non-compliance with section 5-A in this case, as the petitioners were not adequately informed before the hearing for objections under section 5-A was scheduled, leading to a conclusion of plain injustice and a pretense of compliance.
  
  3. The issue of the opportunity given to the petitioners for objections under section 5-A was closely scrutinized by the court. It was noted that the petitioners were not informed of the cancellation of the earlier notification under section 6 before the hearing date, leading to a lack of proper communication and procedural irregularities. The court emphasized the mandatory nature of the provisions of section 5-A and the necessity for proper compliance to ensure fairness in land acquisition proceedings.
  
  4. The effectiveness of the fresh notification issued under section 6 was also a crucial aspect of the judgment. The court ruled that the fresh notification issued on January 16, 1969, under section 6 was invalid due to the procedural flaws and lack of compliance with the statutory requirements. The court highlighted the significance of publication dates and the need for adherence to legal procedures in issuing and canceling notifications under the Land Acquisition Act to uphold the integrity of the acquisition process.

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• 1976 (11) TMI 203
  
  Issues:
  1. Appeal against the order of the District Judge dismissing a Miscellaneous Appeal for restoration of a suit.
  2. Transfer of the suit from one Court to another and the authority of the Advocate.
  3. Petitioner's appeal dismissed by the District Judge on the grounds of unsatisfactory explanation for absence.
  4. Legal position regarding the authority of the Advocate in case of transfer of proceedings to a different Court.
  5. Review of the decision and setting aside the ex parte decree with conditions.
  
  Analysis:
  
  Issue 1: The revision before the High Court was against the order of the District Judge, Ratnagiri, dismissing the Miscellaneous Appeal for restoration of the suit. The suit had initially been filed in a different Court and was transferred to the Court where the ex parte decree was passed. The petitioner sought restoration of the suit for hearing on merits after the decree.
  
  Issue 2: The High Court deliberated on the authority of the Advocate in the transferred proceedings. The Court observed that the authority of the Advocate may not necessarily continue if the proceedings are transferred to a different Court. The Court emphasized that the Advocate's authority is specific to the Court for which it was given, and a transfer to a distinct Court might terminate that authority.
  
  Issue 3: The petitioner's appeal was dismissed by the District Judge, who was not satisfied with the petitioner's explanation for failing to attend the Court on the relevant date. The High Court noted that both lower Courts had taken a harsh view against the petitioner, highlighting the need for negligence to be compensated without disentitling the party from defending the suit on merits.
  
  Issue 4: The High Court discussed the legal position regarding the Advocate's authority in case of a transfer of proceedings to a different Court. The Court expressed doubts about the continuation of the Advocate's authority in such situations and emphasized the need for a specific connection to the Court where the proceedings are being conducted.
  
  Issue 5: The High Court ultimately set aside the ex parte decree with conditions. The petitioner was required to pay costs and file a Vakalatnama for another Advocate in the Court where the suit was pending. The Court directed the expeditious disposal of the suit and outlined specific timelines for compliance, ensuring that the restoration of the suit was subject to fulfilling the prescribed conditions.

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• 1976 (11) TMI 202
  
  Issues involved:
  The issues involved in this case are the promotion of a petitioner to the Indian Administrative Service, alleged supersession by juniors, delay in seeking redress, and the validity of the writ petition filed under Articles 226 and 227 of the Constitution.
  
  Promotion Dispute:
  The petitioner, a permanent member of the Orissa Administrative Service Class I, claimed he was senior to respondents 4 to 13 but was not included in the list for promotion to the Indian Administrative Service in 1960. He alleged that the list prepared in 1961 placed his name at the bottom, contrary to regulations. Despite making representations and memorials, his grievances were not addressed until he filed a writ petition in 1973.
  
  Delay in Seeking Redress:
  The Supreme Court noted an inordinate delay of eleven years from the rejection of the petitioner's representation in 1962 to filing the writ petition in 1973. The Court held that repeated representations without a satisfactory explanation did not justify the delay. The delay allowed for multiple appointments and promotions within the Indian Administrative Service, affecting the careers and benefits of other officers.
  
  Validity of Writ Petition:
  The State Government argued that the writ petition should be dismissed due to the significant and unexplained delay in seeking redress. The Court agreed with this argument, emphasizing that the High Court erred in not considering the delay as a reason for dismissal. Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment, and dismissed the writ petition without costs.
  
  This summary highlights the key issues of promotion dispute, delay in seeking redress, and the validity of the writ petition, culminating in the Supreme Court's decision to dismiss the petition due to the significant and unexplained delay in seeking redress.

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• 1976 (11) TMI 201
  
  Issues Involved:
  1. Admissibility of affidavits sworn before magistrates not in seisin of the case under Section 145 of the Code of Criminal Procedure.
  2. Interpretation and application of Section 8 of the Kerala Government Land Assignment Act, 1960.
  
  Issue-wise Detailed Analysis:
  
  1. Admissibility of Affidavits:
  The core issue in these appeals was whether affidavits sworn or affirmed before magistrates who were not in seisin of the case under Section 145 of the Code of Criminal Procedure could be read in evidence under that section. The High Court had ruled these affidavits inadmissible, prompting the appeals.
  
  - Legal Provisions Involved:
  - Section 145(1) of the Code of Criminal Procedure allows parties to adduce evidence through affidavits.
  - The Oaths Act, 1873, governs the swearing or affirmation of affidavits, while the Oaths Act, 1969, was deemed inapplicable.
  
  - Key Legal Interpretation:
  - Affidavits under Section 145 are considered evidence for proceedings before the concerned magistrate, notwithstanding the Evidence Act.
  - The Code does not specify courts or persons before whom such affidavits must be sworn, necessitating reliance on general provisions.
  
  - Application of the Oaths Act:
  - Section 4 of the Oaths Act authorizes courts and persons to administer oaths if acting "in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law."
  - Only magistrates dealing with the Section 145 proceedings could administer such oaths, not those unconnected with the case.
  
  - Conclusion:
  - As the affidavits in question were not sworn before the magistrates handling the disputes, they were deemed improper and inadmissible as evidence under Section 145.
  - The appeals were dismissed based on precedents and legal reasoning supporting the High Court's decision.
  
  2. Interpretation and Application of Section 8 of the Kerala Government Land Assignment Act, 1960:
  The second set of appeals involved the interpretation of Section 8 concerning whether further restrictions could be imposed on land after acquiring title from the government.
  
  - Background Facts:
  - An agreement in 1939 and modified in 1941 allowed Joseph and his father to reclaim land, with conditions on alienation until full payment.
  - Joseph fulfilled the terms, and in 1957, executed a deed of settlement for the land.
  - The Kerala Land Reforms Act of 1963 led to proceedings for land surrender, questioning whether the land should be treated as a single unit or separate units for compensation.
  
  - Key Legal Interpretation:
  - Section 8 validates all provisions, restrictions, conditions, and limitations in any Patta or document evidencing government land assignment.
  - The restraint on alienation in the 1941 agreement applied only until full payment was made, which was completed before 1957.
  
  - High Court's Findings:
  - The settlement deed of 1957 was recognized by the government, with mutations and pattas issued to Joseph's children.
  - The Kerala High Court found no conditions in the Patta to which Section 8 could apply post-payment.
  
  - Conclusion:
  - The High Court correctly interpreted that Joseph's children acquired rights under the settlement deed, entitling them to compensation for separate units.
  - The appeals were dismissed, affirming that no further restrictions could be imposed once the conditions of the original agreement were fulfilled.
  
  Overall Conclusion:
  The Supreme Court upheld the High Court's decisions in both sets of appeals. The affidavits not sworn before the appropriate magistrates were inadmissible under Section 145 of the Code of Criminal Procedure. Additionally, the terms of the 1941 agreement did not impose further restrictions once the land value was fully paid, allowing Joseph's children to be treated as separate unit holders for compensation purposes under the Kerala Government Land Assignment Act, 1960. The appeals were dismissed, affirming the High Court's interpretations and applications of the relevant legal provisions.

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• 1976 (11) TMI 200
  
  Issues:
  1. Right of private defence
  2. Trespass and possession
  3. Injuries and mutual fight
  4. Consistency of medical evidence with eyewitness testimony
  5. Appropriate conviction and sentencing
  
  Detailed Analysis:
  
  1. Right of Private Defence
  The court examined whether the accused had the right of private defence. The defence argued that the accused were asserting their lawful right over a public Chak Road encroached by the complainant and acted in self-defence. However, the court found that the complainant had established settled possession over the land for two to three weeks before the occurrence. Therefore, the accused had no right to forcibly dispossess the complainant, and their act of aggression could not be justified as self-defence. The court noted: "The appellants who were undoubtedly the aggressors and had opened the assault could not claim any right of private defence either of person or property."
  
  2. Trespass and Possession
  The court discussed the legal implications of trespass and possession. It was established that the complainant had encroached upon the Chak Road and cultivated paddy, thus establishing possession. The court cited previous rulings to emphasize that a true owner cannot forcibly dispossess a trespasser who has accomplished possession. The court stated: "In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land."
  
  3. Injuries and Mutual Fight
  The court addressed the injuries sustained by both parties and the nature of the fight. The defence argued that the prosecution did not explain the injuries on the accused, suggesting a mutual fight. The court found that the prosecution had provided sufficient explanation for the injuries, noting that the complainants were also armed and acted in self-defence. The court concluded: "The prosecution has given sufficient explanation for the injuries sustained by the accused persons and the prosecution case cannot be thrown out on this ground."
  
  4. Consistency of Medical Evidence with Eyewitness Testimony
  The court evaluated the consistency between medical evidence and eyewitness testimony. The defence pointed out discrepancies, particularly regarding the manner of the assault with a Biroo. The court found that the medical evidence supported the eyewitness accounts, stating: "There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo."
  
  5. Appropriate Conviction and Sentencing
  The court deliberated on the appropriate convictions and sentences for the accused. It upheld the conviction of Ram Sajiwan under Section 302 IPC for causing the death of the deceased, noting: "The appellant Ram Sajiwan was rightly convicted under s. 302 I.P.C." However, the court found no common intention among the other accused to cause grievous hurt, setting aside their convictions under Sections 326/34 IPC but affirming their convictions under Sections 324/34, 323/34, and 447 IPC. The court concluded: "For these reasons, therefore, we would affirm the convictions and sentences passed on the appellant Ram Sajiwan but allow the appeal of the other appellants viz. Ram Rattan and Ram Samujh to this extent that their convictions and sentences under ss. 326/34 I.P.C. are set aside, but their convictions and sentences under ss. 324/34, 323/34 and 447 I.P.C. will stand."
  
  Conclusion
  The appeal was dismissed for Ram Sajiwan, affirming his conviction under Section 302 IPC. The convictions of Ram Rattan and Ram Samujh under Sections 326/34 IPC were set aside, but their convictions under Sections 324/34, 323/34, and 447 IPC were upheld. The court emphasized the importance of legal recourse over taking the law into one's hands.

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• 1976 (11) TMI 199
  
  Issues Involved:
  1. Correctness of the selection list for promotion of Income Tax Officers to Assistant Commissioners.
  2. Requirement of 10 years' experience for promotion.
  3. Evaluation of merit by the Departmental Promotion Committee (DPC).
  4. Field of choice for promotion.
  5. Compliance with administrative instructions and statutory rules.
  6. Alleged arbitrariness and violation of Article 16 of the Constitution.
  7. Date for determining eligibility for promotion.
  
  Detailed Analysis:
  
  1. Correctness of the Selection List:
  The principal question was whether the selection list for promotion of Income Tax Officers to Assistant Commissioners was correct. The selection list was prepared by the Departmental Promotion Committee (DPC) based on the seniority list approved by the Supreme Court on April 16, 1974, in Bishan Sarup Gupta v. Union of India.
  
  2. Requirement of 10 Years' Experience:
  The Gujarat High Court held that the requirement of 10 years' experience for promotion, as laid down in a Government of India letter dated January 16, 1950, was violated because the DPC considered persons with 8 years' experience. However, the Supreme Court found that the requirement of 10 years' experience was modified to 8 years through administrative instructions and correspondence between the Finance Ministry, Home Ministry, and the Union Public Service Commission. The Court concluded that the requirement of 10 years' experience was not a statutory rule and had been effectively modified to 8 years.
  
  3. Evaluation of Merit by the DPC:
  The High Court held that the DPC did not properly evaluate the merit of persons in the field of choice. The Supreme Court disagreed, stating that the DPC followed the principles set out in the Memorandum dated May 16, 1957, which emphasized merit over seniority. The DPC classified officers as "outstanding," "very good," and "good" based on their service records and prepared the selection list accordingly.
  
  4. Field of Choice for Promotion:
  The High Court criticized the DPC for not extending the field of choice to five times the number of vacancies, as recommended in the Memorandum. The Supreme Court found that the field of choice had been prepared based on running seniority, an administrative practice followed for over 10 years. The DPC considered 276 names out of 336 sent by the Government, adhering to the principle of running seniority and the modified requirement of 8 years' experience.
  
  5. Compliance with Administrative Instructions and Statutory Rules:
  The respondents contended that the selection violated the rule framed by the Government of India for promotion to selection posts. The Supreme Court found that the administrative instructions from the Home Ministry dated May 16, 1957, were generally applicable and had been adapted by the DPC for promotions within the Income Tax Department. The Court upheld the DPC's adherence to these instructions.
  
  6. Alleged Arbitrariness and Violation of Article 16:
  The respondents argued that the selection was arbitrary and violated Article 16 of the Constitution. They claimed that promotee officers with more than 8 years' service were excluded, while direct recruits with less than 8 years' service were included. The Supreme Court found that the DPC's selection was based on running seniority and the modified 8-year experience rule. The Court held that the selection was neither arbitrary nor discriminatory.
  
  7. Date for Determining Eligibility for Promotion:
  The respondents contended that eligibility should be determined based on the dates of provisional promotions permitted by the Supreme Court on December 21, 1972, and subsequent Government orders. The Supreme Court clarified that the eligibility for promotion should be decided with reference to the date of the DPC meeting, as always done in past meetings. The Court emphasized that promotions to the post of Assistant Commissioners are to be made prospectively, not retrospectively.
  
  Conclusion:
  The Supreme Court set aside the judgments and orders of the Gujarat and Andhra Pradesh High Courts. It held that the selection list prepared by the Departmental Promotion Committee was correct, lawful, and valid. The appeals were allowed, and parties were directed to bear their own costs.

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• 1976 (11) TMI 198
  
  Issues Involved:
  1. Validity and binding nature of the disputed settlement.
  2. Fairness, justness, and reasonableness of the disputed settlement.
  3. Completeness of the disputed settlement.
  4. Principles applicable in granting dearness allowance to workers.
  
  Analysis of Judgment:
  
  1. Validity and Binding Nature of the Disputed Settlement:
  The Tribunal found that the disputed settlement was not valid and binding on the members of the Mumbai Mazdoor Sabha (Respondent No. 2). The Supreme Court, however, emphasized that when a recognized union negotiates with an employer, individual workers do not come into the picture. The settlement, being a product of collective bargaining, is entitled to due weight and consideration. The Court noted that the 2nd respondent did not produce evidence to show the number of workers who were its members and who could assert that the settlement was not binding under section 18(1) of the Industrial Disputes Act. The Court concluded that the settlement was binding on all workers, given that the majority had accepted it and received the arrears and emoluments accordingly.
  
  2. Fairness, Justness, and Reasonableness of the Disputed Settlement:
  The Tribunal found that the scheme of dearness allowance (D.A.) provided in the disputed settlement was not fair, just, and reasonable, particularly for workmen at or just above the subsistence level. However, the Supreme Court disagreed, stating that the settlement must be judged as a package deal. The Court highlighted that the settlement had provided better terms in wages, and even if there was some reduction in D.A., it did not make the settlement unfair or unreasonable. The Court emphasized that settlements in collective bargaining should be encouraged and judged in the spirit of mutual give and take, rather than strictly by adjudication principles.
  
  3. Completeness of the Disputed Settlement:
  The Tribunal held that the disputed settlement was incomplete because the terms and conditions for a small number of seasonal casual workmen were left to be mutually decided by the parties. The Supreme Court, however, noted that some terms had been settled for this category by mutual agreement. The Court concluded that the settlement could not be deemed bad on account of this minor incompleteness.
  
  4. Principles Applicable in Granting Dearness Allowance:
  The Tribunal applied principles from the Killick Nixon Limited case, advocating for cent percent or at least 95% neutralization of the cost of living in D.A. The Supreme Court clarified that while these principles are relevant for adjudication, they do not necessarily apply to voluntary settlements. The Court emphasized that settlements should not be judged by the strict principles of adjudication but by the mutual benefits and the spirit of collective bargaining. The Court found that reducing the D.A. to 85% and 87.5% did not render the settlement unfair or unjust, especially when considering the overall benefits and the context of the settlement.
  
  Conclusion:
  The Supreme Court upheld the disputed settlement as fair and just, substituting the award of the Tribunal with the settlement dated October 18, 1973. The appeal was disposed of with no order as to costs. The judgment emphasized the importance of collective bargaining and the need for industrial peace and harmony.

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• 1976 (11) TMI 197
  
  Issues Involved:
  1. Competence of the Deputy Commissioner to dismiss the appellant.
  2. Validity of Regulation 7 of the Delhi Municipal Corporation Service (Control and Appeal) Regulations, 1959.
  3. Whether the disciplinary authority's order was vitiated due to lack of recorded findings and reasons.
  4. Summary dismissal of the writ petition by the High Court without notice to the respondents.
  5. Allegations of mala fides against the respondents.
  
  Issue-wise Detailed Analysis:
  
  1. Competence of the Deputy Commissioner to Dismiss the Appellant:
  The appellant contended that his dismissal by the Deputy Commissioner (Education) was illegal as his appointing authority was the Commissioner under section 92 of the Delhi Municipal Corporation Act, 1957. The Court rejected this contention, noting that the appellant's appointment was made by the Deputy Commissioner, who had plenary powers delegated by the Commissioner. Therefore, there was no legal bar to the appellant's dismissal by the Deputy Commissioner, and no breach of the first proviso to sub-section (1) of section 95 of the Act occurred.
  
  2. Validity of Regulation 7:
  The appellant argued that Regulation 7, which conferred power on the Deputy Commissioner to dismiss municipal employees drawing a monthly salary of less than Rs. 350, was inconsistent with section 95 of the Act and thus void. The Court found that Regulation 7 was consistent with section 95, which allowed municipal employees to be dismissed by such authority as prescribed by the regulations. The prohibition in the first proviso to section 95(1) was applicable only if the dismissal was by an authority subordinate to the one that appointed the employee, which was not the case here.
  
  3. Vitiation of the Disciplinary Authority's Order:
  The appellant claimed that the disciplinary authority's order was vitiated as it neither recorded its findings on the charges nor provided reasons for the dismissal. The Court held that it was not necessary for the disciplinary authority to record findings if it concurred with the inquiry officer's report. The Deputy Commissioner's order clearly stated agreement with the inquiry officer's findings, thereby fulfilling the requirement. The Court referenced previous decisions, emphasizing that an order of concurrence does not need to be elaborate or detailed.
  
  4. Summary Dismissal of the Writ Petition:
  The appellant argued that the High Court should not have dismissed the writ petition in limine without issuing a notice to the respondents. The Court found that the High Court was justified in dismissing the petition summarily as it did not raise arguable points of law or make out a prima facie case requiring investigation.
  
  5. Allegations of Mala Fides:
  The appellant alleged mala fides against the respondents. The Court reiterated that allegations of mala fides must be supported by specific particulars making out a prima facie case. The allegations in the appellant's writ petition were deemed insufficient to establish malus animus. Thus, the High Court was correct in dismissing the petition in limine.
  
  Conclusion:
  The Supreme Court dismissed the appeal, affirming the validity of the Deputy Commissioner's authority to dismiss the appellant, the consistency of Regulation 7 with the Act, the sufficiency of the disciplinary authority's order, and the High Court's summary dismissal of the writ petition. The allegations of mala fides were found to be unsubstantiated. The appeal was dismissed without any order as to costs.

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• 1976 (11) TMI 196
  
  Issues involved:
  The issues involved in the judgment include contempt proceedings for not abiding by a court order, validity of a notice determining a license, renewal of a license for manufacturing liquor, and disposal of stock of spirit and distilling plant.
  
  Contempt Proceedings:
  The State filed an application for initiating contempt proceedings against the respondent for not abiding by the court order. The appeals were adjourned multiple times for settlement discussions, and eventually, the Distillery accepted that they would cease liquor manufacture after the license expiry. The court found it necessary to record that distillery operations at Karnal were not allowed due to the circumstances.
  
  Validity of License Notice:
  The appeals revolved around the validity of a notice determining the license, which was challenged by the Distillery. The court's dismissal of the appeals indicated that the contentions challenging the notice were not accepted. The Distillery was given time till 6 September 1976 to cease liquor manufacture under the license.
  
  Renewal of License:
  The Distillery sought renewal of the license for manufacturing liquor at Karnal. However, after the court order on 22 April 1976, the Distillery could not request renewal beyond 6 September 1976. The court clarified that it did not pronounce on the validity of any license.
  
  Disposal of Stock:
  The Distillery requested time to bottle the manufactured liquor for disposal. Rule 10 of the Punjab Distillery Rules 1932 mandates the disposal of stock, apparatus, and distilling plant under the direction of the Financial Commissioner. The court directed the Financial Commissioner to provide suitable directions for disposal.
  
  Conclusion:
  The appeal was accepted, and the High Court's order granting stay of dispossession was set aside. No order was passed on the contempt proceedings application, and no costs were imposed. The Distillery's actions in the High Court for license renewal were deemed misleading and for ulterior purposes.

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• 1976 (11) TMI 195
  
  Issues involved: Dismissal of petition under articles 226 and 227 of the Constitution of India by Rajasthan High Court regarding royalty demand for mining gypsum ore.
  
  Judgment Summary:
  
  The appellant leased land for mining gypsum ore and was demanded royalty at a specific rate per tonne based on the mineral's purity. Appellant claimed the gypsum contained less than 85% CaSO42H20, while respondents argued analysis reports were not provided to support this claim. Central Government upheld the royalty rate decision. The High Court dismissed the petition citing factual disputes and the availability of alternative remedies. The Supreme Court concurred with the High Court's decision, emphasizing that the gypsum's purity was a factual issue. Appellant's parallel pursuit of remedies was also noted, with the appellant's suit being dismissed in default but with a possibility of restoration. The appeal was ultimately dismissed without costs.

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• 1976 (11) TMI 194
  
  Issues:
  1. Interpretation of Order 37, Rule 3 of the Civil Procedure Code.
  2. High Court's interference with the Trial Court's discretion in granting unconditional leave to defend.
  3. Application of legal principles in granting leave to defend in cases of dishonored cheques.
  
  The Supreme Court judgment involved a case where a registered partnership firm filed a suit for the recovery of a dishonored cheque. The defendant admitted issuing the cheque but denied a contract with the plaintiff firm. The suit was filed under Order 37 Civil Procedure Code, requiring the defendant to apply for leave to defend. The Trial Court granted unconditional leave after reviewing both parties' cases. However, the High Court interfered with this order, setting conditions for the defendant to pay the claimed amount into Court. The main issue was whether the High Court could interfere with the Trial Court's discretion under Section 115 of the Civil Procedure Code. The Supreme Court referred to legal precedents, emphasizing that leave to defend must be given unconditionally where the defense is not dishonest. The Court highlighted the importance of not prejudging the honesty of a defense before evidence is presented. The judgment also referenced the principles set out in Santosh Kumar v. Bhai Mool Singh and Smt. Kiranmoyee Dassi v. Dr. J. Chatterjee to support its decision. Ultimately, the Supreme Court set aside the High Court's order and restored that of the Trial Court, stating that the case did not warrant imposing conditions for the defendant to deposit an amount in Court. The parties were directed to bear their own costs.

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• 1976 (11) TMI 192
  
  Issues Involved:
  1. Failure to maintain up-to-date R.G.I. register.
  2. Non-debiting of duty in Personal Ledger Account (P.L.A.) for cleared pumps.
  3. Seizure and confiscation of unaccounted pumps.
  4. Imposition of penalty and fine.
  
  Detailed Analysis:
  
  1. Failure to Maintain Up-to-Date R.G.I. Register:
  The Department discovered that the appellants had not written up the R.G.I. register for the period from 1-9-1973 to 21-9-1973. During this period, 92 pumps were manufactured, and the appellants cleared 49 pumps for home consumption and 80 pumps for export without making relevant entries in the R.G.I. register. The appellants admitted to this lapse but claimed it was due to employee negligence and not an intention to evade duty. They argued that other records showed the production and clearances, and the contravention was detected from their records.
  
  2. Non-Debiting of Duty in Personal Ledger Account (P.L.A.):
  The appellants failed to debit the duty in their P.L.A. for 8 pumps cleared under gate passes. They argued that this was not intentional as they had sufficient credit balance in their P.L.A. to cover the duty. They maintained a running account of the balance on the reverse of the gate passes, which was later transferred to the P.L.A. They contended that the failure could have been easily detected by themselves or the Department.
  
  3. Seizure and Confiscation of Unaccounted Pumps:
  85 pumps, valued at Rs. 6,76,919/- involving duty of Rs. 67,691/90, which were not entered in the R.G.I. register, were seized by the Department. The appellants contended that the major portion of the production and clearance was meant for export, where duty was not involved. They argued that the confiscation of goods, plant, machinery, etc., and the deterrent penalty imposed were unwarranted in the absence of mens rea.
  
  4. Imposition of Penalty and Fine:
  The Collector imposed a penalty of Rs. 1,00,000/- under Rule 173-Q of the Central Excise Rules, 1944, and appropriated Rs. 18,276/- towards the value of the seized 85 pumps. A fine of Rs. 5,000/- was also imposed in lieu of confiscation of land, building, plant, machinery, material, and other things. The appellants argued that the principles of criminal jurisprudence and natural justice should apply, citing several judicial decisions that mens rea is relevant for action "IN PERSONAM."
  
  Board's Findings:
  
  On Facts:
  The Board acknowledged that the basic facts were not disputed. The appellants had manufactured 92 pumps without entering them in the R.G.I. register, and 85 pumps were seized by the Department. The clearances of 49 pumps for home consumption and 80 pumps for export were also not entered in the R.G.I. register. The 8 pumps were cleared without debiting the duty in the P.L.A., but the appellants had sufficient balance to cover the duty.
  
  On Legal Arguments:
  The Board considered various judicial decisions cited by the appellants. It noted that Rule 173Q of the Central Excise Rules categorizes offences into four parts, with categories (a), (b), and (c) not requiring intent to evade duty, while category (d) does. The Board found that the cited judgments on mens rea were not directly applicable to the present case, as they primarily dealt with the burden of proof in smuggling cases.
  
  The Board referred to the Supreme Court judgment in Hindustan Steel v. State of Orissa, which stated that penalty for failure to carry out a statutory obligation should not be imposed unless the party acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest. The Board concluded that neglect of duty could attract a penalty if the adjudicating officer deemed it necessary, even in the absence of mens rea.
  
  Decision on Penalty and Fine:
  The Board found that the penalty of Rs. 1,00,000/- was excessive. Considering the extenuating circumstances and the absence of clear intent to evade duty, the Board reduced the personal penalty to Rs. 10,000/-. The fine of Rs. 5,000/- in lieu of confiscation of the appellants' land, factory, etc., was set aside. The appeal was allowed to this extent, but the amount of Rs. 18,276/- appropriated in lieu of the value of the 85 pumps was upheld.
  
  Conclusion:
  The appeal was partially allowed, with the personal penalty reduced to Rs. 10,000/- and the fine of Rs. 5,000/- set aside. The appropriation of Rs. 18,276/- towards the value of the 85 seized pumps was upheld.

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• 1976 (11) TMI 191
  
  Issues:
  1. Classification of products under Central Excise Tariff
  2. Justification of duty demand under rule 10A
  3. Denial of natural justice in the proceedings
  4. Time-bar for the demand of duty
  
  Analysis:
  
  1. Classification of products under Central Excise Tariff:
  The appellants contested the classification of three products - Perfect Wave Set Lotion, Cloudy Ammonia, and Magik Set Lacquer Refill - under Item No. 14-F(ii) of the Central Excise Tariff, arguing that they are not cosmetic or toilet preparations but are intended for hair beautification. The Appellate Collector examined the nature and advertised uses of the products. It was found that Perfect Wave Set Lotion and Magik Set Hair Spray are specifically designed for hair treatment, providing glossy waves and fixing hair styles. Even Cloudy Ammonia was marketed for prickly heat relief and as a shampoo. The products were deemed assessable under Item No. 14-F(ii) based on their intended uses for hair care.
  
  2. Justification of duty demand under rule 10A:
  The appellants challenged the duty demand under rule 10A, contending that the goods were cleared with prior approval as non-excisable and that the demand was served after a significant period following clearance. The Appellate Collector noted that there was no evidence of clandestine removal or lack of knowledge by Central Excise Officers regarding the clearance of goods. As a result, rule 10A did not apply, and the duty recovery fell under Rule 10 of the Central Excise Rules. Given the time-bar limitation under Rule 10, the demand for duty was considered unjustified, leading to the vacating of the Assistant Collector's order.
  
  3. Denial of natural justice in the proceedings:
  The appellants raised concerns about the lack of a personal hearing before the issuance of the order by the Assistant Collector. They argued that they had been orally heard by the Assistant Collector's predecessor and that the absence of communication regarding sample results amounted to a denial of natural justice. However, the Appellate Collector did not delve deeply into this issue as the primary focus was on the classification and time-bar aspects of the case.
  
  4. Time-bar for the demand of duty:
  The critical aspect of the judgment revolved around the time-bar for demanding duty. Since the goods were cleared with approval and no evidence suggested clandestine removal, the demand was considered time-barred under Rule 10 of the Central Excise Rules. Consequently, the Assistant Collector's order was vacated, and relief was granted to the appellants based on this finding.
  
  In conclusion, the Appellate Collector's decision primarily centered on the classification of products under the Central Excise Tariff and the time-bar limitation for demanding duty, ultimately resulting in the vacating of the duty demand due to the application of Rule 10 and the absence of evidence supporting the invocation of rule 10A.

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• 1976 (11) TMI 190
  

  Whether a quota prescription, willy nilly, does postulate exnecessitate a rota process in practice?

  Held that:- The quota system does not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription can be devised of which rota is certainly one. While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Art. 16, to choose 'a year' or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of implementing the quota rule. We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste.

  Seniority, normally is measured by length of continuous, officiating service--the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied. A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits. 1960-62 forms period A and 1962 onwards forms period. B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits 'who may turn up in succeeding periods.

  Promotees who have been fitted into vacancies beyond their quota during the period B--the year being regarded as the unit--must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota - On this basis, the judgment of the High Court stands substantially modified, but preparation of a new seniority list becomes necessitous - Appeal allowed.

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• 1976 (11) TMI 189
  
  Issues Involved:
  1. Legality of the Assistant Commissioner of Commercial Taxes' order.
  2. Applicability of section 20(2-A) of the Andhra Pradesh General Sales Tax Act.
  3. Limitation on the exercise of revision powers by the Deputy Commissioner.
  
  Issue-wise Detailed Analysis:
  
  1. Legality of the Assistant Commissioner of Commercial Taxes' Order:
  The petitioner argued that the orders of the Commercial Tax Officer and the Assistant Commissioner of Commercial Taxes were not illegal, and the Supreme Court's change in view should not necessitate rectification under revision powers. The court examined the Supreme Court's decision in Mod. Serajuddin v. State of Orissa, which clarified that only the contract between the foreign buyer and the Indian exporter can occasion the export, not the preceding contracts. The court emphasized that the Supreme Court did not lay down a new legal position but reiterated the established principle that only the last contract of sale between the exporter and the foreign importer can be considered as occasioning the export. Consequently, the court rejected the petitioner's contention, affirming that the Supreme Court's decision did not introduce a new legal interpretation but merely emphasized existing principles.
  
  2. Applicability of Section 20(2-A) of the Andhra Pradesh General Sales Tax Act:
  The petitioner contended that the same issue had been decided by the Sales Tax Appellate Tribunal for previous assessment years and was pending for the assessment year 1969-70, thereby invoking section 20(2-A) to prevent the Deputy Commissioner from exercising revision powers. The court clarified that the principle of res judicata does not apply to tax matters, as each year's assessment is distinct. The court cited precedents from the Supreme Court and other High Courts, emphasizing that decisions in one assessment year do not bind subsequent years. The court concluded that section 20(2-A) does not incorporate the concept of res judicata, and the Deputy Commissioner could exercise revision powers for the assessment years in question, irrespective of previous decisions or pending appeals.
  
  3. Limitation on the Exercise of Revision Powers by the Deputy Commissioner:
  The petitioner argued that the Deputy Commissioner was barred by limitation from exercising revision powers, as the period for revision under section 14(4-C) had expired. The court noted that the Deputy Commissioner issued the show cause notice within the permissible period under section 20(3), which allows revision within four years from the date the order was served on the dealer. The court referenced a Division Bench decision in Meenakshi Corporation v. Deputy Commissioner of Commercial Taxes, which upheld the limitation period under section 20(3). Consequently, the court rejected the petitioner's contention, affirming that the Deputy Commissioner acted within the statutory time limit.
  
  Conclusion:
  The court dismissed all six petitions, ruling against the petitioner on all three contentions. The court clarified that it did not address any points other than those specifically dealt with in the judgment, leaving the petitioner free to raise other contentions before the Deputy Commissioner. The petitions were dismissed with costs, and the court awarded an advocate's fee of Rs. 150 in each case.

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• 1976 (11) TMI 188
  
  Issues:
  Interpretation of agreement for repair services and supply of spare parts - Determination of whether charges for spare parts constitute sales or part of works contract.
  
  Analysis:
  The judgment of the Andhra Pradesh High Court involved a case where the assessee, a proprietary concern, had entered into an agreement with a government department to carry out repairs on various machines and supply spare parts. The key issue was whether the charges for the spare parts should be considered as part of a works contract or as independent sales of materials. The Tribunal had treated the supply of materials as sales subject to tax.
  
  The Court examined the agreement between the parties, which specified rates for servicing and overhauling machines, as well as the supply of spare parts. The agreement governed the rates for spare parts, which were to be allowed as per the rates approved by the Government of India. The Court considered various decisions, including a Supreme Court ruling emphasizing that distinguishing between a contract of sale and a contract for work and labor depends on the facts and circumstances of each case.
  
  The Court noted that the assessee charged separately for spare parts supplied while repairing machines and also levied sales tax on taxable items. However, the Court emphasized that the determination of whether the transaction constituted a sale or a works contract should be based on the agreement's terms. The Court found that all spare parts necessary for maintaining the machines were supplied at agreed rates, leading to the conclusion that the transaction was a sale rather than a works contract.
  
  In light of the Supreme Court's latest judgment and considering the specific facts of the case, the Court upheld the Tribunal's decision that the supply of spare parts amounted to sales under the sales tax law. The Court dismissed the tax revision cases in favor of the revenue, ruling against the assessee. No costs were awarded, and the petitions were ultimately dismissed.

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• 1976 (11) TMI 187
  
  Issues Involved:
  1. Validity of the order made under section 57 of the Bombay Sales Tax Act, 1959.
  2. Scope and power conferred by section 57 of the Act in tax revision matters.
  3. Distinction between assessment and reassessment under sections 35 and 57 of the Act.
  4. Jurisdictional limitations on the exercise of revisional power.
  5. Procedural correctness in the issuance of notices and the proposed orders.
  
  Detailed Analysis:
  
  1. Validity of the Order Made Under Section 57 of the Bombay Sales Tax Act, 1959:
  The petitioner, a dealer in foreign liquor, challenged the validity of the order dated 6th January 1970, made under section 57 by the Assistant Commissioner of Sales Tax. The original assessment order dated 28th November 1967 by the Sales Tax Officer was revised, and the petitioner was assessed to Rs. 76,599.05 as tax payable with additional penalties. The main contention was that the revisional order was made without jurisdiction or in excess thereof, arguing that the proper provision for reassessment was section 35, not section 57.
  
  2. Scope and Power Conferred by Section 57 of the Act in Tax Revision Matters:
  The court explained that section 57 provides the Commissioner with the power to call for and examine the record of any order passed by a subordinate officer and make an order deemed just and proper. This power includes correcting errors of law or procedure apparent on the record. It was emphasized that this supervisory power is distinct from the original assessment and reassessment powers and is meant for ensuring legality, propriety, and correctness of the assessment.
  
  3. Distinction Between Assessment and Reassessment Under Sections 35 and 57 of the Act:
  The court elucidated the difference between assessment (section 33) and reassessment (section 35). Assessment involves determining the tax liability based on the turnover, while reassessment is reopening the assessment due to reasons such as escaped turnover or wrong deductions. Section 57 deals with the revision of the assessment order, not reassessment. The court noted that the revisional power under section 57 is not curtailed by the reassessment power under section 35, as they operate in distinct fields.
  
  4. Jurisdictional Limitations on the Exercise of Revisional Power:
  The court referenced the Supreme Court's decisions in Swastik Oil Mills Ltd. v. H.B. Munshi and State of Kerala v. K.M. Cheria Abdulla & Co., which clarified that the revisional authority should not encroach upon powers reserved for other authorities, such as reassessment. However, the revisional power can correct errors in the assessment process. The court held that the revisional power under section 57 was appropriately exercised to correct the errors in the application of law, which were not in dispute.
  
  5. Procedural Correctness in the Issuance of Notices and the Proposed Orders:
  The petitioner argued that the particulars regarding set-off and deductions were not indicated in the proposed orders, making the orders procedurally defective. The court found no merit in this argument, stating that no new material was used against the petitioner and that the law was applied to existing facts and figures. The court concluded that the procedural requirements were met, and the order was valid.
  
  Conclusion:
  The court dismissed the petitions, upholding the revisional order made under section 57. It was determined that the power under section 57 was correctly invoked to correct apparent errors in the assessment, and there were no procedural defects affecting the validity of the order. The court refused the leave to appeal under article 133 of the Constitution of India, as the decision was based on the ratio of the Supreme Court's judgments.

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• 1976 (11) TMI 186
  
  Issues:
  Challenge to order of Bakijai Officer in Bakijai Case No. 66(T) of 1971-72, Retirement of partners from partnership firm, Liability of partners for dues under the Assam Finance (Sales Tax) Act, 1956, Jurisdiction of taxing authorities to attach properties of partners, Recovery of dues under the Act.
  
  Analysis:
  The petitioners challenged the order dated 17th December, 1971, passed by the Bakijai Officer in Bakijai Case No. 66(T) of 1971-72 and the proceedings in the said case. The petitioners claimed that they had retired from the partnership firm M/s. Kar Brothers and were not accountable for any dues under the Assam Finance (Sales Tax) Act, 1956. The retirement of partners was governed by Section 32 of the Indian Partnership Act, 1932, which outlines the conditions for retirement. The court found no evidence to support the retirement of the petitioners from the firm, thus holding them liable for the dues as partners until public notice of retirement was given.
  
  The definition of "dealer" under Section 2(2) of the Act includes a firm like M/s. Kar Brothers, making it liable for taxes. The information about the retirement of partners did not absolve them from legal liabilities under the Act. Section 37 of the Act requires information about changes in business to be furnished to the authorities. Since there was no legal evidence of retirement, the partners remained liable for the dues. The court held that the dues under the Act could be recovered from the partners who continued to be part of the firm.
  
  The jurisdiction of taxing authorities to attach properties of partners was disputed. The court clarified that taxes due by M/s. Kar Brothers should be realized from the firm or its partners, not from unrelated persons or entities. The court emphasized that if there were taxes due by the firm, they should be recovered in accordance with the law from the firm or its partners. The petition was dismissed, ruling that the taxing authorities could not attach properties belonging to individuals or entities not directly linked to the firm in question.
  
  In conclusion, the court rejected the petition, discharged the rule, and vacated the stay order without imposing any costs. The judgment highlighted the importance of legal evidence for retirement from a partnership firm and clarified the jurisdiction of taxing authorities in recovering dues under the Act from the appropriate entities or individuals.

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