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1996 (12) TMI 407
Issues:
1. Imposition of penalties under section 18(2) of the Foreign Exchange Regulation Act, 1973.
2. Lack of opportunity for defense due to ex parte order.
3. Allegation of inadequate investigation by the department.
4. Requirement of pre-deposit for penalties imposed.
5. Necessity for the department to prove contravention of section 18(2) and the exporter's reasonable steps for realization of export proceeds.
Analysis:
1. The judgment concerns appeals against penalties imposed for contravention of section 18(2) of the Foreign Exchange Regulation Act, 1973. The penalties were imposed on the appellants for failure to realize export proceeds, with varying amounts imposed on different parties.
2. The appellants argued that they were not given a fair opportunity to defend themselves as the order was passed ex parte without considering their request for an adjournment due to medical reasons. The appellants contended that they had made efforts for realization of export proceeds, which were not adequately considered.
3. The appellants further asserted that the department had not conducted a thorough investigation into the matter before issuing the show-cause notice. They claimed that evidence of interactions with the RBI and authorized dealers, including permissions and extensions granted, were not properly considered by the adjudicating authority.
4. Considering the lack of opportunity for defense and the incomplete investigation, the judge found merit in the appellants' contentions. The judge waived the requirement of pre-deposit for the penalties imposed, citing undue hardship to the appellants.
5. The judge emphasized the necessity for the department to prove contravention of section 18(2) by demonstrating the absence of extensions or indulgences by the RBI. The judgment highlighted that non-realization of export proceeds is not punishable if reasonable steps were taken for realization. The case was remanded for fresh adjudication with observations on the evidentiary requirements and the exporter's obligations under the Act.
In conclusion, the appeals were allowed, the impugned order was set aside, and the case was remanded for fresh adjudication, emphasizing the importance of proving contravention and the exporter's efforts in realizing export proceeds.
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1996 (12) TMI 406
Issues:
Appointment of respondent as Extra Department Branch Post Master bypassing the appellant.
Analysis:
The judgment revolves around the legality of appointing respondent No. 7 as Extra Department Branch Post Master, bypassing the appellant. The Central Administrative Tribunal, Patna Bench, Patna upheld respondent No. 7's appointment, citing the appellant's disqualification due to his cousin brother already working in the same Post Office. The appellant challenged this decision, arguing that the Tribunal's reasoning was erroneous.
The appellant contended that the Tribunal's decision was flawed both on grounds of limitation and merits. Respondent No. 7's counsel argued that the application should have been filed within one year of respondent No. 7's appointment in July 1992, but the appellant filed it in January 1994. However, the appellant provided evidence of illness from August to December 1993, justifying the delay. The Court held that the delay was minimal and deserved to be condoned in the interest of justice.
Regarding the merits, the Tribunal acknowledged the appellant's superior qualifications compared to respondent No. 7. The appellant had higher marks in examinations and a higher annual income. The only hurdles identified by the Tribunal were the cousin brother's employment in the same office and the issue of limitation. The Court found the limitation issue resolved and deemed the cousin brother's employment as an irrational ground for disqualification.
The Court criticized the decision to disqualify the appellant based on his cousin brother's role as a Peon in the Post Office, considering it arbitrary and irrational. The Court emphasized that such a ground cannot be sustained under Article 14 of the Constitution of India. The judgment concluded by allowing the appeal, quashing respondent No. 7's appointment, and directing the authorities to appoint the appellant as the Extra Department Branch Post Master. The Court emphasized that the appellant's merit should have been the sole consideration, and the irrational grounds for disqualification should not have been upheld by the Tribunal.
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1996 (12) TMI 405
Issues:
1. Interpretation of Defence Research and Development Organisation (Junior Scientific Officer) Recruitment (Amendment) Rules, 1988.
2. Effect of the 1988 Rules on the judgment of the Tribunal in R.P. Joshi v. Union of India and Ors.
3. Application of subject-wise seniority in promotion from Senior Scientific Assistant to Junior Scientific Officer.
4. Validity of the Tribunal's judgment dated March 17, 1987 in A.No. 497/86.
5. Compliance with the Tribunal's judgment in A.No. 497/86 in light of the 1988 Rules.
Analysis:
The Supreme Court considered the issue of whether the Defence Research and Development Organisation (Junior Scientific Officer) Recruitment (Amendment) Rules, 1988, nullified the Tribunal's judgment in R.P. Joshi v. Union of India and Ors. The Tribunal had directed a re-do of the promotion process from Senior Scientific Assistant (SSI) to Junior Scientific Officer (JSO) based on subject-wise seniority. The Court noted that the 1988 Rules repealed the 1967 Rules to the extent the 1980 Rules were applicable, but the Tribunal's binding decision could not be rendered non-existent by the new Rules. The Court emphasized that the rule-making authority cannot retrospectively nullify a binding decision. Thus, the respondents were directed to comply with the Tribunal's judgment in A.No. 497/86 regarding subject-wise promotion until a certain date, with the new Rules applicable only to promotions after that date.
The Court clarified that the Tribunal's judgment in A.No. 497/86 provided relief only to Joshi and not to any other individual. Therefore, the benefit of the judgment could not be extended to others seeking similar relief. The Court held that even a retired individual seeking the benefit of the judgment was not entitled to relief. In the absence of a validating clause in the 1988 Rules, the Court declined to interfere with the Tribunal's judgment. The Court concluded that the Tribunal's decision in A.No. 497/86 was specific to Joshi and did not apply to others, emphasizing the limited scope of relief granted by the Tribunal.
Overall, the Supreme Court upheld the Tribunal's judgment in A.No. 497/86, emphasizing the importance of complying with binding decisions and the limitations on retrospective nullification of such decisions by new rules. The Court's decision clarified the application of subject-wise seniority in promotions and the specific relief granted to the individual involved in the original case.
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1996 (12) TMI 404
Issues Involved:
1. Whether the agreement in favor of the plaintiff is legally and validly terminated by the defendant?
2. Whether the plaintiff is entitled to claim the decree for specific performance of the agreement dated 15.1.1988 between him and defendant No.1?
3. Whether the plaintiff is entitled to get a decree for injunction as sought for?
4. What order and decree?
Summary:
Issue No. 1:
The court examined whether the termination notice dated 31.8.1994 issued by the defendant was legal and valid. The plaintiff argued that the termination was illegal, void, and an abuse of the process of the court, contending that Clause 21 of the franchise agreement was void u/s 23 of the Indian Contract Act. The plaintiff also claimed the agreement was a franchise agreement, permanent and indeterminable in nature. The defendant countered that the suit was an abuse of the court process and argued that the agreement was not permanent and could be terminated with 90 days' notice without assigning any cause. The court found that Clause 21, allowing termination without cause, was valid and not against public policy. The court held that the agreement was legally and validly terminated by the defendant.
Issue No. 2:
The plaintiff sought specific performance of the agreement dated 15.1.1988. The court referred to Section 14 of the Specific Relief Act, which states that a contract which is in its nature determinable cannot be specifically enforced. The court held that the agreement was determinable and thus could not be specifically enforced. Compensation in money would be an adequate relief.
Issue No. 3:
The plaintiff sought an injunction to prevent the termination of the agreement. The court found that since the agreement was determinable and could not be specifically enforced, the plaintiff was not entitled to the injunction sought.
Order and Decree:
The suit filed by the plaintiff was dismissed with costs. The court concluded that the agreement was legally and validly terminated, and the plaintiff was not entitled to specific performance or an injunction.
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1996 (12) TMI 403
Issues Involved:
1. Validity of the ratio in Pratibha Rani vs. Suraj Kumar & Anr.
2. Whether the appellant made out a prima facie case of entrustment.
3. Whether the complaint was time-barred under Section 468 of the Code of Criminal Procedure.
Summary:
1. Validity of the ratio in Pratibha Rani vs. Suraj Kumar & Anr:
The Supreme Court revisited the ratio in Pratibha Rani vs. Suraj Kumar & Anr., [(1985) 2 SCC 370], which held that stridhana property is the exclusive property of the wife. The majority view was reaffirmed, stating that failure to return stridhana property constitutes a breach of trust u/s 405 IPC, punishable under Section 406 IPC. The minority view, which required a special agreement for entrustment, was not accepted.
2. Prima Facie Case of Entrustment:
The Court found that the appellant had made out a prima facie case of entrustment of her stridhana property to the respondent. The complaint indicated that the appellant's parents entrusted the jewellery and household goods to the respondent at the time of her farewell. The appellant alleged that despite repeated demands, the respondent refused to return the stridhana properties. The Court held that these averments constituted a prima facie case of criminal breach of trust under Section 406 IPC.
3. Limitation Period:
The Court addressed whether the complaint filed in September 1990 was time-barred. Section 468 of the Code prescribes a three-year limitation period for offenses punishable with imprisonment up to three years. The appellant demanded the return of her stridhana on December 5, 1987, and the respondent refused. Thus, the complaint filed within three years from this date was within the limitation period. The High Court's conclusion that the complaint was time-barred was based on an incorrect interpretation of the evidence.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment, and directed the trial court to proceed with the case from the stage at which it was pending. The observations made were solely for determining the prima facie case and should not influence the trial court's final decision.
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1996 (12) TMI 402
Issues: Interpretation of entry No. 5 in a notification dated 31-1-1985 regarding "Balanced Poultry Feeds."
The judgment by the Allahabad High Court, delivered by Justices Om Prakash and B.K. Sharma, addressed the issue of whether the entry No. 5 in a notification dated 31-1-1985, pertaining to "Balanced Poultry Feeds," includes poultry feed supplements or concentrates. The assessing authority had initiated recovery against the petitioner based on assessment orders for the years 1991-92 and 1992-93, contending that the petitioner dealt only in feed supplements, not in balanced poultry feeds exempt under the said notification. The court rejected the preliminary objection raised by the Standing Counsel, emphasizing that the controversy revolved around interpreting the specific entry in the notification.
In the assessment orders, the authority determined that the petitioner, a private limited company, traded in feed supplements like Vitamins A-B, B-12, C, and D, imported from outside the state, which were not considered poultry feed but rather supplements to enhance poultry health and productivity. The court analyzed the term "balanced poultry feed," highlighting that it differed from regular poultry feed and that the word "feed" was not defined in the U.P. Trade Tax Act, necessitating a dictionary interpretation. It was established that balanced poultry feed included essential concentrates and vitamins crucial for poultry maintenance and production.
The judgment delved into the significance of providing balanced poultry feed to ensure optimal poultry productivity economically. It differentiated between regular feed for maintenance and balanced feed containing vital nutrients for production purposes. The court emphasized that the inclusion of concentrates in poultry feed was essential to categorize it as balanced poultry feed, as concentrates like vitamins were integral for overall poultry health and productivity. The decision was supported by precedents from the Gujarat High Court, reinforcing the interpretation of balanced poultry feed.
Ultimately, the court ruled in favor of the petitioner, exempting the turnover of concentrates amounting to a specific sum from taxation under the category of "balanced poultry feed supplements" as per entry No. 5 in the notification dated 31-1-1985. The judgment directed the assessing authority to treat the turnover of balanced poultry feed supplements as exempt, leading to the quashing of recovery proceedings related to tax on these supplements for the relevant assessment years.
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1996 (12) TMI 401
Issues Involved:
The judgment involves the interpretation of Section 14(1)(b) of the Delhi Rent Control Act regarding the involuntary transfer of leasehold interest from a Foreign Company to an Indian Company, and whether it constitutes sub-letting or assignment.
Interpretation of Section 14(1)(b):
The main issue in this case is whether the transfer of leasehold interest from the Foreign Company to the Indian Company constitutes sub-letting within the meaning of Section 14(1)(b) of the Act. The contention was that since the transfer was compelled by the Foreign Exchange Regulation Act, it should not be considered sub-letting. However, the Court found that the transfer was indeed a case of sub-letting as the Indian Company took over the business without obtaining the written consent of the landlord, as required by the Act.
Comparison with Previous Judgments:
The judgment referred to previous cases such as P.H. Rao v. S.P.N.K. Jain and Venkatarama Iyer v. Renters Ltd. to support the conclusion that a transfer of leasehold rights, even if involuntary, falls under the purview of Section 14(1)(b) as either sub-letting or assignment. The Court emphasized the wide scope of the provision, which includes any mode by which possession of the tenanted premises is transferred.
Distinguishing Case Law:
The Court distinguished the case of Madras Bangalore Transport Co. (West) v. Inder Singh & Ors., where the nature of the companies involved led to a different conclusion regarding subletting. In that case, the entities were considered as one for practical purposes, unlike the distinct transfer of leasehold rights in the present case.
Final Decision:
In conclusion, the Court upheld the findings of the lower courts that the transfer of leasehold interest from the Foreign Company to the Indian Company constituted sub-letting under Section 14(1)(b) of the Act. Therefore, the appeal was dismissed with no costs incurred.
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1996 (12) TMI 400
Issues Involved:
1. Constitutional validity of Section 5(2) of the Telegraph Act, 1885.
2. Procedural safeguards against arbitrary telephone tapping.
3. Right to privacy under Article 21 of the Constitution.
4. Right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
5. Compliance with International Covenant on Civil and Political Rights.
Summary:
1. Constitutional Validity of Section 5(2) of the Telegraph Act, 1885:
The petitioner challenged the constitutional validity of Section 5(2) of the Telegraph Act, 1885, which permits telephone tapping on the occurrence of any public emergency or in the interest of public safety. The court upheld the validity of Section 5(2), noting that it lays down specific conditions under which the power can be exercised, such as sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, or preventing incitement to the commission of an offense.
2. Procedural Safeguards Against Arbitrary Telephone Tapping:
The court emphasized the need for procedural safeguards to prevent arbitrary exercise of power under Section 5(2). It highlighted the lack of rules framed under Section 7(2)(b) of the Act, which provides for precautions to prevent improper interception or disclosure of messages. The court directed the Central Government to frame necessary rules and laid down interim procedural safeguards, including:
- Orders for telephone tapping must be issued by the Home Secretary of India or the State Government.
- Orders should specify the communications to be intercepted and be limited to a period of two months, extendable up to six months.
- Authorities must maintain records of intercepted communications and their disclosure.
- A Review Committee at the Central and State levels will investigate the validity of the orders and ensure compliance with Section 5(2).
3. Right to Privacy Under Article 21 of the Constitution:
The court affirmed that the right to privacy is a fundamental right under Article 21, which includes the right to hold a telephone conversation in the privacy of one's home or office without interference. Telephone tapping infringes upon this right unless it is permitted under the procedure established by law.
4. Right to Freedom of Speech and Expression Under Article 19(1)(a) of the Constitution:
The court noted that telephone tapping also infringes upon the right to freedom of speech and expression guaranteed under Article 19(1)(a) unless it falls within the grounds of restrictions under Article 19(2). When a person is talking on the telephone, they are exercising their right to freedom of speech and expression.
5. Compliance with International Covenant on Civil and Political Rights:
The court referred to Article 17 of the International Covenant on Civil and Political Rights, which India is a signatory to, and emphasized that no one shall be subjected to arbitrary or unlawful interference with their privacy. The court interpreted Article 21 of the Constitution in conformity with international law, reinforcing the need for procedural safeguards to protect the right to privacy.
Conclusion:
The Supreme Court upheld the constitutional validity of Section 5(2) of the Telegraph Act, 1885, but mandated procedural safeguards to prevent arbitrary telephone tapping. The court recognized the right to privacy and the right to freedom of speech and expression as fundamental rights under Articles 21 and 19(1)(a) of the Constitution, respectively. It directed the Central Government to frame rules under Section 7(2)(b) and laid down interim safeguards to protect these rights.
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1996 (12) TMI 399
Issues Involved:
1. Validity of the High Court's decision to quash the contract awarded to AFCONS.
2. Evaluation of bids and determination of the lowest bidder.
3. Role and influence of the Asian Development Bank in the contract award process.
4. Judicial review of administrative decisions in the context of public contracts.
Summary:
1. Validity of the High Court's Decision:
The High Court quashed the decision of Paradip Port Trust to award the contract to AFCONS and directed negotiations with both AFCONS and Trafalgar House Construction of India Ltd. If negotiations failed within a month, the Port Trust was to initiate rebidding. The Supreme Court found that the High Court's interference was not justified, as there was no evidence of arbitrariness, unfairness, illegality, or irrationality in the award process.
2. Evaluation of Bids:
The Tender Committee of Paradip Port Trust, after evaluating the bids, initially found discrepancies in the bid documents. The Asian Development Bank (ADB) did not support the corrected bid evaluation that favored Trafalgar House Construction, asserting that AFCONS was the lowest evaluated substantially responsive bidder. The Supreme Court noted that the High Court's conclusion that Trafalgar House Construction was the lowest bidder was factually incorrect and that AFCONS remained the lowest bidder throughout the process.
3. Role and Influence of the Asian Development Bank:
ADB, which was financing the project, insisted that the contract be awarded to AFCONS, stating that no loan would be provided if the contract was awarded to anyone else or if rebidding occurred. The Supreme Court emphasized that ADB's role and its conditions were crucial, given the significant financial implications and the need for adherence to the specified procedures.
4. Judicial Review of Administrative Decisions:
The Supreme Court reiterated that judicial review in contractual matters is limited to preventing arbitrariness, favoritism, and ensuring public interest. The Court found no malice, ulterior motives, or procedural impropriety in the award process. It cited Tata Cellular vs. Union of India, emphasizing that courts should not interfere with administrative decisions unless there is a clear violation of legal principles.
Conclusion:
The Supreme Court set aside the High Court's judgment, affirming the contract awarded to AFCONS by Paradip Port Trust. It highlighted the importance of avoiding delays and cost escalations in large-scale projects and concluded that rebidding would be detrimental to public interest. The appeal was allowed without any order as to costs.
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1996 (12) TMI 398
The High Court quashed the impugned order of the Revisional Authority regarding entertainment tax and penalty, remanding the matter for reconsideration. The Revisional Authority failed to consider the ground of a previous checking, leading to the decision. The Revisional Authority was directed to decide the case within two months.
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1996 (12) TMI 397
Issues Involved:
1. Who should face eviction?
2. How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?
3. What should be done in case of those Government employees who had occupied quarters on out-of-turn basis, but who are not required to be evicted by now?
4. How should those who were denied allotment, despite the same having become due as per the Rules, be compensated?
5. Should there be any out-of-turn allotment? If the answer be in affirmative, how should it be regulated and what should be its limit?
6. Should private citizens (to wit, journalists, freedom-fighters, artists and social workers) be accommodated in Government quarters? If so, on what terms?
7. Should political parties and other organisations be given allotment of Government quarters? If so, which of them and on what terms?
8. Should high holders of political office, like President, Vice-President and Prime Minister be accommodated in Government quarters after demitting of office by them? If so, on what terms?
9. At what rate penalty has to be realised from those who were unauthorisedly occupying the Government quarters?
10. Has the Government any power to waive charges which have become payable as per the Rules in vogue?
11. What should be done regarding those Government employees who had sublet their premises; and what should be done as regards the occupants of these let premises?
12. Whether apart from the general pool and tenure pool, if required to be retained, there should be other pools; and, if so, for whom and how the same should be regulated?
13. How to prevent in future the scam of the type at hand?
Summary:
1. Who should face eviction?
The Court decided that those occupying quarters under Categories IV, VI, IX, X, XI, and certain Category VII allottees, who had not become entitled to in-turn allotment by the date of the reports, should face eviction. IAS, IPS, IFS officers occupying General Pool quarters despite eligibility for Tenure Pool would also be evicted. A new list would be drawn up, and notices would be served requiring them to vacate within 90 days.
2(a). How much licence fee should be charged from those out-of-turn allottees who would become liable to eviction on account of their illegal occupation of the quarters in question?
Out-of-turn allottees are to be treated as ineligible persons and charged twice the licence fee for Type III quarters and three times for Type IV and above.
2(b). What should be done in case of those Government employees who had occupied quarters on out-of-turn basis, but who are not required to be evicted by now?
These allottees should be charged the same licence fee as those being evicted, as per the rates mentioned above.
3. How should those who were denied allotment, despite the same having due as per the Rules, be compensated?
The additional licence fee collected from out-of-turn allottees would be used to compensate those employees who were illegally denied their allotments. The Ministry would frame a scheme within three months, and compensation would be paid within three months thereafter.
4. Should there be any out-of-turn allotment? If the answer be in affirmative, how should it be regulated and what should be its limit?
Out-of-turn allotment should be minimal and regulated with transparency. Ministries/Departments would frame rules within three months, and allotments would be limited to 5% of each type of house falling vacant annually. Reasons for allotments would be documented, and a yearly statement would be laid before Parliament.
5. Should private citizens (to wit, journalists, freedom-fighters, artists and social workers) be accommodated in Government quarters? If so, on what terms?
Future allotments to artists and social workers would be from the 5% discretionary quota. Present occupants would be dealt with according to specific guidelines. Journalists would be allotted accommodation from the Press Pool based on guidelines provided by the Press Council of India, excluding free lancers.
6. Should political parties and other organisations be given allotment of Government quarters? If so, which of them and on what terms?
Political parties would be allotted quarters based on guidelines to be framed, with advice from the Speaker of Lok Sabha and Vice-Chairman of Rajya Sabha. Other organisations would not be entitled to General Pool allotments but could be considered under the discretionary quota.
7. Should high holders of political office, like President, Vice-President and Prime Minister be accommodated in Government quarters after demitting of office by them? If so, on what terms?
High holders of political office should be accommodated in government premises after demitting office, with terms to be decided by the Government.
8. At what rate penalty has to be realised from those who were unauthorisedly occupying the Government quarters?
Penalties would be as per the relevant rules and Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
9. Has the Government any power to waive charges which have become payable as per the Rules in vogue?
The Court held that waiver orders have no sanction of law, and recovery proceedings would follow the order passed on 29.11.1996.
10. What should be done regarding those Government employees who had sublet their premises; and what should be done as regards the occupants of these let premises?
Departmental proceedings would be initiated against employees who sublet their premises, and sub-letees, being unauthorised occupants, would be evicted expeditiously.
11. Whether apart from the general pool and tenure pool, if required to be retained, there should be other pools; and, if so, for whom and how the same should be regulated?
Apart from the General Pool, Tenure Pool and Press Pool, quarters should be earmarked for high office holders and managed by relevant authorities.
12. How to prevent in future the scam of the type at hand?
To prevent future scams, the construction of more government quarters is necessary. A high-powered committee would be formed to report within six months. The Government should also consider debarment of employees owning houses in nearby towns from getting government accommodation in Delhi.
Conclusions:
The Court provided a detailed list of conclusions summarizing the decisions on each issue, including eviction procedures, licence fee charges, compensation, discretionary quotas, and measures to prevent future scams.
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1996 (12) TMI 396
Issues Involved:
1. Applicability of the UP Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Backward Classes) Act, 1994.
2. Validity of the Chancellor's direction to appoint respondents.
3. Right to appointment from the selection process initiated prior to the Act.
4. Retrospective application of the Act.
5. Issuance of mandamus in violation of the law.
Summary:
1. Applicability of the UP Public Services (Reservation of Scheduled Caste, Scheduled Tribes and Backward Classes) Act, 1994:
The Act came into force on March 22, 1994, with retrospective effect from December 11, 1993. Section 2(c) defines "public services and posts" to include educational institutions owned or controlled by the State Government. Section 3 mandates reservation percentages for Scheduled Castes, Scheduled Tribes, and Other Backward Classes. Section 4 entrusts the Vice-Chancellor with the responsibility of implementing the Act in the university. Section 6 empowers the Government to enforce compliance with the Act.
2. Validity of the Chancellor's direction to appoint respondents:
The Chancellor directed the Vice-Chancellor to appoint the respondents as Readers in Chemistry. However, the Vice-Chancellor sought guidance on implementing this direction in light of the Act. The Governor, exercising powers u/s 6 of the Act, cancelled appointments made in violation of the Act. The Supreme Court held that the Chancellor's direction was in violation of the Act since the selection process was initiated after the Act came into force.
3. Right to appointment from the selection process initiated prior to the Act:
The Court clarified that the initiation of the selection process is defined in Section 15(1) of the Act. For the selection process to be considered initiated, the written test or interview must have started before the Act came into force. In this case, the selection process for the posts of Readers in Chemistry started after December 11, 1993, and thus, the provisions of the Act applied. The respondents did not acquire any vested right to appointment from the selection process initiated after the Act's commencement.
4. Retrospective application of the Act:
The Court upheld the retrospective application of the Act to existing vacancies as of December 11, 1993. It emphasized that the legislature is competent to make laws with retrospective effect. The selection process initiated after the Act's commencement must comply with the Act's provisions, including the reservation requirements u/s 3(1).
5. Issuance of mandamus in violation of the law:
The Court held that a mandamus cannot be issued to violate the law. The High Court's direction to appoint the respondents as per the Chancellor's order was in violation of the Act. The Vice-Chancellor's actions in implementing the Act were justified, and the strictures against the appellants by the High Court were unwarranted.
Conclusion:
The Supreme Court allowed the appeals, set aside the High Court's judgment and orders, and dismissed the writ petition. The direction issued by the Chancellor was found to be in contravention of the Act, and the mandamus issued by the High Court was deemed illegal.
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1996 (12) TMI 395
Issues Involved:
1. Whether a "Foster Son" is a "member of family" within the meaning of Section 2(6A) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960.
2. Whether the eviction petition filed by the respondent on the grounds of personal need and wilful default is maintainable.
Summary of Judgment:
Issue 1: Definition of "Member of Family" u/s 2(6A)
- The primary issue was whether a "Foster Son" qualifies as a "member of family" under Section 2(6A) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960.
- The appellant contended that "Family" should be understood in its common meaning, including only natural sons.
- The respondent argued that the definition of "Family" in the Act is artificial and flexible, potentially including individuals not related by blood.
- Section 2(6A) defines "member of his family" as the landlord's spouse, son, daughter, grandchild, or dependent parent.
- The Court noted that definitions in statutes should be interpreted in context and should aid the purpose of the Act.
- The term "Family" is flexible and can include individuals not directly related by blood, as supported by various High Court rulings and the Supreme Court's observation in Corporation of the City of Nagpur v. The Nagpur Handloom Cloth Market Co. Ltd.
- The Court concluded that a "Foster Son" could be considered a member of the family if brought up with parental care and treated as a son.
Issue 2: Maintainability of the Eviction Petition
- The respondent filed an eviction petition u/s 10(2)(i) and 10(3)(a)(iii) of the Act, citing personal need and wilful default.
- The Rent Controller found the petition maintainable for bona fide need but not for wilful default.
- The appellate authority reversed this decision, stating that a "Foster Son" is not a family member.
- The High Court's Division Bench overruled the appellate authority, affirming that a "Foster Son" is a family member under the Act.
- The Supreme Court upheld the High Court's decision, confirming that Arunachala Bakthar, the "Foster Son," was a family member and the eviction petition was maintainable for the bona fide need of the respondent and her "Foster Son."
Conclusion:
The Supreme Court dismissed the appeal, affirming that a "Foster Son" is a "member of family" within the meaning of Section 2(6A) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, and upheld the eviction petition filed by the respondent. The appeal was dismissed with costs quantified at Rs. 15,000.
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1996 (12) TMI 394
The Supreme Court dismissed the Civil Appeal as the issue was covered by a previous decision in Wallace Flour Mills Co. Ltd. v. Collector of Central Excise, Bombay. No costs were awarded. (Citation: 1996 (12) TMI 394 - SC Order)
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1996 (12) TMI 392
Issues Involved:
1. Environmental Impact of Shrimp Farming
2. Enforcement of Coastal Regulation Zone (CRZ) Notification
3. Constitution of National Coastal Management Authority
4. Legal Provisions and Compliance
5. Sustainable Development and Environmental Principles
6. Compensation for Affected Persons and Restoration of Environment
Summary:
1. Environmental Impact of Shrimp Farming:
Shrimp farming in India has shifted from traditional rice/shrimp rotating systems to more intensive methods, producing thousands of kilograms per hectare. This shift has led to significant environmental degradation, including pollution, salinization of soil and groundwater, destruction of mangroves, and loss of biodiversity. Reports from NEERI and other experts highlight the adverse impacts, such as the discharge of untreated effluents, obstruction of natural water flow, and increased salinity affecting agricultural lands and potable water sources.
2. Enforcement of Coastal Regulation Zone (CRZ) Notification:
The petition under Article 32 of the Constitution sought enforcement of the CRZ Notification dated February 19, 1991, which prohibits certain activities within 500 meters of the High Tide Line (HTL). The Supreme Court directed that no shrimp culture farms could be set up within the CRZ, emphasizing that shrimp farming is neither "directly related to water front" nor "directly needing foreshore facilities." The Court ordered the demolition of all shrimp farms operating within the CRZ by March 31, 1997.
3. Constitution of National Coastal Management Authority:
The Court directed the Central Government to constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986, to protect ecologically fragile coastal areas. This authority, headed by a High Court Judge, would implement the "Precautionary Principle" and "Polluter Pays" principle, ensuring strict environmental scrutiny before permitting any shrimp farming activities.
4. Legal Provisions and Compliance:
The judgment highlighted the failure of shrimp farms to comply with various environmental laws, including the Environment (Protection) Act, 1986, the Water (Prevention & Control of Pollution) Act, 1974, and the Hazardous Waste (Management and Handling) Rules, 1989. The Court emphasized the need for shrimp farms to obtain necessary consents and authorizations from State Pollution Control Boards.
5. Sustainable Development and Environmental Principles:
The Court reiterated the principles of "Sustainable Development," "Precautionary Principle," and "Polluter Pays" principle as part of the environmental law of the land. These principles mandate that environmental measures must anticipate and prevent degradation, and polluters must compensate for the harm caused and the cost of restoring the environment.
6. Compensation for Affected Persons and Restoration of Environment:
The Court directed the newly constituted authority to assess the loss to the ecology and affected persons based on the "Polluter Pays" principle. The authority would determine compensation for individuals and the cost of reversing environmental damage. The compensation amount would be recovered from polluters and deposited in an "Environment Protection Fund" for disbursement and restoration activities.
Final Directions:
The Supreme Court issued several directives, including the closure and demolition of shrimp farms within the CRZ, prohibition of converting agricultural lands and other sensitive areas for shrimp farming, and the establishment of an eco-restoration fund. The workmen employed in the closed shrimp farms were to be compensated as per the Industrial Disputes Act, 1947. The writ petition was allowed with costs, directing the coastal States to pay the costs to the petitioner.
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1996 (12) TMI 391
The Supreme Court allowed the appeal and set aside the High Court's judgment quashing the charge-sheet served on the respondent in disciplinary proceedings. The Court stated that the High Court erred in going into the merits of the allegations before evidence was presented in the disciplinary proceedings. The appellants were permitted to continue with the disciplinary proceedings based on the charge-sheet.
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1996 (12) TMI 390
Issues Involved:
1. Interpretation of the term "forest" u/s 2 of the Forest Conservation Act, 1980.
2. Necessity of prior approval from the Central Government for non-forest activities.
3. Interim directions for the conservation and protection of forests across various states.
Summary:
Issue 1: Interpretation of the term "forest" u/s 2 of the Forest Conservation Act, 1980
The Supreme Court clarified that the term "forest" must be understood according to its dictionary meaning, covering all statutorily recognized forests, whether designated as reserved, protected, or otherwise. This interpretation applies to all forests irrespective of ownership or classification. The term "forest land" includes any area recorded as forest in government records, regardless of ownership.
Issue 2: Necessity of prior approval from the Central Government for non-forest activities
The Court emphasized that prior approval from the Central Government is mandatory for any non-forest activity within any forest area. Activities such as running saw mills, veneer or plywood mills, and mining are considered non-forest purposes and require prior approval. Any ongoing non-forest activity without such approval must cease immediately.
Issue 3: Interim directions for the conservation and protection of forests across various states
General Directions:
1. All non-forest activities in forest areas without prior Central Government approval must cease immediately.
2. Complete ban on tree felling in tropical wet evergreen forests of Tirap and Changlang in Arunachal Pradesh.
3. Tree felling in forests is suspended except as per approved Working Plans.
4. Ban on the movement of cut trees and timber from the North-Eastern States to other states.
5. State Governments to form Expert Committees to identify forest areas and degraded lands.
6. State Governments to report on the number of saw mills and their capacities.
7. Expert Committees to assess the sustainable capacity of forests for timber-based industries.
8. Committees to oversee compliance and file status reports.
State-Specific Directions:
- Jammu & Kashmir:
1. Ban on tree felling in forests, with exceptions for private plantations.
2. Removal of fallen or diseased trees by the State Forest Corporation.
3. Formation of an Expert Committee to set norms for tree felling.
4. Timber utilization within the state, with restricted movement outside.
5. Relocation of saw mills within 8 km of forest boundaries.
- Himachal Pradesh, Uttar Pradesh (Hill Regions), and West Bengal (Hill Regions):
1. Ban on tree felling in forests, with exceptions for private plantations.
2. Removal of fallen or diseased trees by the State Forest Corporation.
3. Formation of an Expert Committee to set norms for tree felling.
4. Compliance with the Forest Conservation Act for project-related tree felling.
- Tamil Nadu:
1. Complete ban on tree felling in forest areas, with exceptions for planted trees.
2. Formation of a committee to identify forest areas.
3. Tribals in social forestry programs may continue activities as per law.
4. Specific guidelines for felling shade and fuel trees in plantations.
5. Verification and removal of trees cut before the interim order.
6. Ban on felling in Janmam lands, subject to pending civil appeals.
7. This order supersedes any conflicting orders from other authorities or courts.
Additional Directions:
- Workers in closed saw mills or wood-based industries to receive full emoluments.
- Ministry of Railways to file an affidavit on the use of wooden sleepers and alternatives.
The matter is listed for further hearing on February 25, 1997.
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1996 (12) TMI 389
The Supreme Court dismissed the appeal in a case involving under-valuation of imported milk powder. The Customs Tribunal overturned the findings of the authorities below after considering all material on record. The Court found the Tribunal's conclusion reasonable. No costs were awarded.
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1996 (12) TMI 388
Issues Involved:
1. Whether the compromise decree was satisfied by the delivery of possession to the appellant's attorney.
2. Whether the decree was adjusted by the creation of a fresh licence.
3. Applicability of Section 47 and Order XXI Rule 2 of the Code of Civil Procedure.
Issue 1: Satisfaction of Compromise Decree
The appellant, the landlady of "Pink City Hotel," filed for eviction against the respondent, a tenant, which ended in a compromise decree on 16.9.1991. The decree required the respondent to vacate the premises by 10th February 1992 and pay rent until then. The respondent claimed to have handed over possession to the appellant's attorney, Ramesh B. Sharma, on 31.10.1991, and continued to occupy the premises as a licensee. The trial court accepted this claim, finding the decree satisfied and inexecutable.
Issue 2: Adjustment by Fresh Licence
The respondent argued that he was allowed to remain as a licensee, paying a higher fee, which amounted to an adjustment of the decree. The appellant countered that the power of attorney was canceled, and no fresh licence could be validly created. The trial court found that the attorney could legally create a fresh licence, thus satisfying the decree.
Issue 3: Applicability of Section 47 and Order XXI Rule 2 CPC
The appellant contended that any adjustment of the decree should have been certified under Order XXI Rule 2 CPC. The respondent argued that Section 47 CPC allowed the executing court to determine questions of execution, discharge, or satisfaction of the decree. The Supreme Court held that Section 47 and Order XXI Rule 2 must be harmonized. While Section 47 confers jurisdiction to decide execution-related questions, Order XXI Rule 2 mandates that any adjustment must be certified. The court emphasized that uncertified adjustments cannot be recognized by the executing court.
Conclusion:
The Supreme Court concluded that the respondent's plea of delivering possession and subsequent licence was an adjustment that required certification under Order XXI Rule 2. Since it was not certified, the executing court should not have recognized it. The appeal was allowed, setting aside the judgments of the trial court and High Court, and directing the executing court to proceed with the eviction decree. The appellant was awarded costs throughout.
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1996 (12) TMI 387
The Supreme Court condoned the delay and dismissed the special leave petition regarding duty on Carbon Electrode Paste due to time limitation under Section 28(1) of the Wealth Tax Act. (Case citation: 1996 (12) TMI 387 - SC)
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