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Showing 1 to 20 of 208 Records
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1980 (9) TMI 293
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... ... ..... he particular and integral aspect of the proceeding, and which thus may fall in between a purely interim or temporary order without in any way affecting any right or aspect, and the final adjudication of the main proceeding and thus it would obviously be not an interlocutory order. With equal certainty it can be said to be an order of moment. 33. In my opinion, therefore, the impugned order successfully survives the scrutiny on the touch-stone of all these tests and guidelines and that it does not bear the stamp of finality in the strict sense vis-a-vis the proceeding or the proceeding is kept alive there being no final adjudication as such on such features which must pale in the background whereas the real nature and concept of the order which is far away from an interlocutory one would be lifted and placed in the forefront. In the final analysis, therefore, the impugned order cannot be termed and styled as 'interlocutory order' by any yardstick. 34. Rule discharged.
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1980 (9) TMI 292
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... ... ..... ntract between the parties. The arbitrator will make his award within three months from the date of entering upon the reference. He will first determine the question whether there was accord and satisfaction between the parties and/or whether the contract was discharged and if the decision on this issue is in favour of the appellant, the arbitrator will not proceed further in the matter and dismiss the claim of the respondent. But, if, on the other hand, he finds that there was no discharge of the contract by accord and satisfaction or otherwise, he will proceed to determine the claim of the respondent against the appellant on merits. The fees of the arbitrator will be deposited initially, by the parties in equal shares and the arbitrator will ultimately decide as to who should bear the cost of the arbitration. This order will not be treated as a precedent in case of any other dispute between the appellant and any other party. There will be no order as to costs of the appeal.
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1980 (9) TMI 291
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... ... ..... re, I am of the opinion, that a judgment inter partes of a competent court in a previous writ petition would operate as res judicata in a subsequent suit between the same parties, where the issues directly involved in the two proceedings are the same, irrespective of the fact whether or not the decision in the earlier writ petition was founded on a view contrary to the one subsequently expressed by the Supreme Court in a different case as is canvassed by Mr. Tha-kur. I would accordingly, answer the second question in the affirmative and hold that the subsequent suit filed by the appellant was barred by the principles of res judicata. The judgment under appeal has been correctly decided and calls for no interference. This appeal must accordingly fail. 14. In view of the answer to question No. 2, I leave question No. 1 open and unanswered. 15. Parties shall, however, bear their own costs. Mufti Baha-ud-Din Farooqi, Ag. C.J. 16. I agree. Iqbal Kishen Kotwal, J. 17. I also agree.
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1980 (9) TMI 290
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... ... ..... n be forwarded to' the Advisory Board, also. The mere fact that the meeting of the Advisory Board had been held earlier was hot a valid excuse for the detaining authority in not considering the representation of the detenu at all. 10. It is well settled that in case of preventive detention of a citizen, Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to alford the detenu the earliest opportunity to make a representation and to Consider that representation speedily is distinct from the Government's obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. In the instant case, there has been a breach of these constitutional imperatives. 11. It was on this short ground, we had by our Order dated April 15 ,1980, allowed this writ petition and directed the release of the detenu forthwith.
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1980 (9) TMI 289
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... ... ..... vur Temple Renovation Committee, Kerala, C- R. P. No. 1127 of 1978, dated 27-7-1978, cannot be held a sustainable one, and therefore it will stand overruled. The view taken by Ramanuism, J. in Ramaswami Gounder v. Subramdnia 1yer, C. R. P. No. 163 of 1979, dated 12-2-1979 and Nainar Sundaram, J. in Raiu v. Sivaprakasam C. R. P. No. 1536 of 1979 dated 31-8-1979 will stand approved. 25. In the instant case, the court had already fixed the upset price and since no bidders were available, it has reduced the upset price for lots I and II. As we have held that the executing court has the power to fix the upset price for sale of property and such power will include within it the power to reduce the upset price as well, the court below has not committed any error of exercising a jurisdiction not vested in it or committed any illegality or irregularity in the exercise of jurisdiction vested in it. The revision will therefore, stand dismissed, but with no order 26. Revision dismissed.
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1980 (9) TMI 288
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... ... ..... osed turnover and since the assessee's turnover for the immediately preceding year was accepted by the Additional Judge (Revisions) though the accounts were rejected, for this year also the same view might be taken. After hearing counsel for parties I am not inclined to accept this submission either because in the first instance the Additional Judge (Revisions) has sustained the quantum of taxable turnover determined by the appellate authority keeping in view the assessee's previous history. Apart from that the net turnover disclosed by the assessee was not on the basis of the books but it was based on an estimate. When the assessee disclosed the net turnover on the basis of an estimate, I do not think that he can be heard to say that the turnover so disclosed should be accepted when the account books maintained by him are not accepted. 6. In the result, therefore, the revision fails and is dismissed with costs to the Commissioner which are assessed at ₹ 200/-.
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1980 (9) TMI 287
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... ... ..... duty is charged only on persons who import particular articles for sale, consumption and use within particular area constituting municipal limits. While fixing the sale-price of a particular manufactured article the person selling the goods or the State Government fixing the price takes into consideration the expenses incurred by the manufacturer, which includes the octroi duty paid by a particular concern on the articles consumed for manufacturing another article. Thus the appellant is not required to pay anything from its own pocket and the withholding of the injunction will not put the appellant to any irreparable loss, while the granting of injunction is likely to create comparative mischief and inconvenience to the respondent, which would be greater than that which is likely to arise from not granting injunction. 28. The net result of the above discussion is that the appeal is dismissed. In the circumstances of the case, the parties are ordered to bear their own costs.
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1980 (9) TMI 286
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... ... ..... se the reference is limited to section 45(2) only. (41) My conclusions are (1) There are no express and categorical words of prohibition on the powers of the High Court to grant stay of recovery of tax, in section 45(7) of the Act, or otherwise. (2) By process of interpretation a court of. law cannot add new words, namely, "Section 45(2)" in section 45(7) of the Act. (3) By virtue of the inherent powers under section 151, Civil Procedure Code . and by virtue of its special powers as a superior court to issue orders in the nature of mandamus, High Court has undoubted powers to grant stay of the recovery of tax, in exercise of its jurisdiction under section 45(2) of the Delhi Sales Tax Act, 1971. The Question is answered affirmatively. B.K. Kirpal, J. (42) I agree with Avadh Behari, J. Order by the Court The application for stay (C.M. 617 of 1980) is dismissed. The matter will now be placed before the Division Bench for disposal of these cases in accordance with law.
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1980 (9) TMI 285
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... ... ..... y rule should not be applied. o p /o p On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced in the Industrial Disputes Act, 1947 by Act No. 36 of 1964-the deletion of s. 2(eee) and the substitution of the present s. 25B for the original section-it is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of s. 25B. It is sufficient for the purposes of s. 25B(2) (a) (ii) that he has actually worked for not less than 240 days during the preceding period of 12 calendar months. The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen does not apply to situations governed by the subsequently substituted s. 25B of the Act. o p /o p With these observations, J concur with the order proposed by my learned brother. o p /o p P.B.R. Appeals allowed. o p /o p
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1980 (9) TMI 284
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... ... ..... nsel. A note appears to have been added to the impugned order later which reads as follows It is true that the case has been disposed of without hearing the counsel for the respondent as he could not appear at the time of the hearing because his name was not printed in the cause list. But this is a revision case where the respondent is not entitled to be heard as of right. Having regard to the facts of the case, I do not think any review of the order already passed is necessary. 2. This view taken by the High Court is manifestly contrary to the audi alteram par tarn rule of natural justice which was applicable to the proceedings before the High Court does not deserve to be maintained. Accordingly, we set aside that order and send the case back to the High Court with the direction that it should dispose of Cri.R.No. 411 of 1972 with in two months from the receipt of a copy of this order, after hearing both the parties. 3. The appeal is disposed of in terms of the above order.
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1980 (9) TMI 283
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... ... ..... are three kinds of laying (i) Laying without further procedure (ii) Laying subject to negative resolution (iii) Laying subject to affirmative resolution. The laying referred to in sub-section (3) of Section 40 is of the second category because the above sub-section contemplates that the rules would have effect unless modified or annulled by the House of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the courts from scrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government." It is, therefore, plain that the authority of the State Government under the delegation does not empower it to make retrospective rules. With this position clarified there is no surviving submission for appellant's counsel. The appeal must be dismissed and we do so with costs (one set). Appeal dismissed.
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1980 (9) TMI 282
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... ... ..... o his scheme if he were prosecuted. We leave the matter at that. Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected. All of them must share the same fate. State lotteries escalating year after year and enticing proletarian sections of the people across the States are dubious in morality and ruinous in impact. Moreover, a detailed study may disclose the diminishing returns and increasing establishment expenses, menace to peaceful life and a traffic and dubious consequences. So much so, a second look at the propriety of these State-run schemes and reversion to the old stance of the State setting an anti- lottery example, is worthwhile from many angles. For the reasons given above, we dismiss all the Writ Petitions, leaving the parties to bear their own costs. Petitions dismissed.
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1980 (9) TMI 281
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... ... ..... im must be attended to, dealt with and considered with watchful care and reasonable promptitude lest the safeguards provided in Article 22(5) of the Constitution and the statute concerned should be stultified and rendered meaningless. Here in the instant case, we find that the functionaries of the State in attending to the representation of the detenu have been guilty of gross negligence and chill indifference. For more than three weeks, the representation of the detenu remained unattended in the Office of the Superintendent of Jail, or the Inspector-General of Prisons. This inordinate, unreasonable and unwarranted delay of about 22 days amounted to a violation of Article 22(5), which guarantees to the detenu a right to have his representation considered with reasonable expedition. It was on this short ground that we had, as per our order dated August 20, 1980, allowed this writ petition, quashed the order of Saleh Mohammed's detention and directed his release forthwith.
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1980 (9) TMI 280
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... ... ..... Governor to proceed according to law-this should be our order ordinarily-, it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned Counsel for the appellant, had relieved us of our anxiety by stating "in view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification". We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merits of the supersession. We allow the appeal in the manner indicated. The appellant is entitled to his costs. Appeal allowed.
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1980 (9) TMI 279
whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention?
Held that:- The community has a vital interest in the proper enforcement of its laws, particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The Government must, therefore, ensure that the constitutional safeguards of Art. 22(5) read with sub-s. (3) of s. 3 of the Act are fully complied with
Whether there was such unreasonable delay in disposal of the detenu's application for revocation made under sub-s. (1) of s. 11 of the Act as to render his continued detention invalid is, in any event, basically irrelevant. For these reasons, the order of detention passed by the State Government of Maharashtra dated February 12, 1980 detaining Bhalabhai Motiram Patel under sub-s. (1) of s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is set aside. Appeal allowed.
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1980 (9) TMI 278
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... ... ..... penses are incurred not only to maintain the present level of turn over but to further boost it up and consequently the production. Accordingly that part of the publicity expenses which can be apportioned to the manufacturing cost should be added to arrive at the assessable value. The said calculation could be done according to the following formula - Where X Publicity charges during the relevant period. a Production during the previous corresponding period (quantity). b Increases in production during the relevant period (quantity). It may however be added that in case the increase in production in terms of number in the relevant period is negative (i.e., there is decrease in the production) or zero, publicity expenses attributable to the manufacturing cost would be all. 10. Subject to the extent condition prescribed and modifications made in pares 8 and 9 above, the 32 appeals listed in the annexure to this order are allowed with consequential relief.
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1980 (9) TMI 277
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... ... ..... ther evidence was collected to establish the alleged clandestine removal of V.P. by the appellants. 11. It is also observed that no effort was made to record the statement of Shri Kumar, the manager of the factory before framing charges against the appellants. It appears that no effort was made either, to substantiate the allegation against the appellants from various other private records maintained by them and or any other independent documentary evidence. 12. The Punjab National Bank as per their certificate dated 2-7-1980 furnished at the time of personal hearing have also confirmed that 3000 tins of 4 Kgs. each of V.P. were issued to the appellants on 12-3-1975 i.e. the day on which the offence was booked. 13. In consideration of the above facts, the Board observes that the allegation against the appellants have not been proved beyond doubt. The Board accordingly, gives them the benefit of doubt and sets aside the order under appeal and allows the appeal.
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1980 (9) TMI 276
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... ... ..... aken and the modification consequent on this order in revision in each case is set out in the tabular statement below - Order in original No. and date Fine fixed by the Collector Now reduced in this order to P.P. Fixed by the Collector Now reduced in this to 1. Order No. SG-86/77 S/10-25/79 L SIIB dated 11-4-1979 ₹ 9,93,000/- ₹ 1,25,000/- (one lakh twenty five thousands) ₹ 2,71,000/- NIL 2. Order No. SG-86/77A S/10-24/79 SIIB dated 11-4-1979 ₹ 75,000/- ₹ 10,000/- (Ten thousand) ₹ 27,000/- Nil 3. Order No. SG-86-8A/77A S/10-82/79L SIIB dated 9-1-1979 ₹ 1,25,000/- ₹ 20,000/- (Twenty thousand) ₹ 25,000/- Nil 4. Order No. SG-86/77A S10-83-78L SIIB dated 9-1-1979 ₹ 1,25,000/- ₹ 30,000/- (Thirty thousand) ₹ 25,000/- Nil The orders in appeal are modified to the extent indicated above and four revision applications are disposed of accordingly. Consequential relief shall be granted to the petitioners.
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1980 (9) TMI 275
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... ... ..... A reflection of this attitude is also apparent in this decision of the Central Board of Excise and Customs where in para 13 the Central Board of Excise and Customs have observed that “Board finds itself in agreement with the view taken by the High Court”. This expression gives the impression that the Central Board of Excise and Customs is superior to the High Court and may or may not agree with a High Court decision. It appears that the Board is not aware of the Constitutional provisions and the Supreme Court decision in the East India Commercial Co. - AIR 1962 S.C. 1893. The Central Board of Excise and Customs being a subordinate authority to High Courts is bound by the law declared by any High Court and cannot afford to disagree with a High Court decision. It is hoped that the Board will make a note of it so that a wrong impression is not created in the minds of subordinate officers that the Central Board of Excise and Customs is over and above the High Courts.
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1980 (9) TMI 274
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... ... ..... ame, character or use.” 9. If, therefore, even if it is held that something new has emerged it can as argued by the appellants, be no more than scrap which is more expressly covered by Tariff Item 27(a) (i) of the Central Excise Tariff. 10. The Board feels that the classification in this case under the residuary Item 68 is unwarranted and undesirable. The Board cannot put this better than in the manner observed by the Supreme Court in the case of Dunlop India Ltd. v. Union of India - A.I.R. 1977 S.C. 597 that “When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the percentage and consign it to an orphanage of the residuary clause.” 11. In the event the classification of the scrap under residuary Item was not warranted. 12. Accordingly, the Board upholds the appeal and in allowing it sets aside the order of the Collector.
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