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2006 (2) TMI 708
Issues:
- Legality of judgments granting back wages to terminated employees.
- Interpretation of Section 33-C(2) of the Industrial Disputes Act, 1947.
- Reinstatement and entitlement to back wages.
- Applicability of specific directions for payment of back wages.
Analysis:
The Supreme Court addressed the legality of judgments granting back wages to terminated employees in appeals involving identical issues. The Andhra Pradesh State Road Transport Corporation challenged the High Court's decisions granting back wages to respondents whose services were terminated. The Corporation argued that the employees were not directly employed by them but by independent contractors. However, the Labour Court held the terminations as illegal and ordered reinstatement, leading to the back wages claim under Section 33-C(2) of the Act.
The Corporation contended that since the Labour Court only directed reinstatement without specifying back wages, the employees were not entitled to such payments. Conversely, the respondents argued that back wages naturally follow reinstatement. The Court referred to previous judgments to clarify that reinstatement alone does not automatically entitle an employee to back wages unless specifically directed. The Court emphasized that back wages should be a consequence of a specific order, not merely implied by reinstatement.
Citing various precedents, the Court highlighted that the determination of back wages requires a detailed examination of the circumstances, including the nature of employment post-termination. The Court reiterated that the Labour Court is the appropriate forum to decide on back wages when a specific reference is made under Section 10 of the Act. The Court emphasized that the mere reinstatement does not automatically grant the right to claim back wages without a specific direction to that effect.
Ultimately, the Supreme Court set aside the orders of the Labour Court and the High Court, ruling in favor of the Corporation. The appeals were allowed without costs. The judgment underscores the importance of a specific direction for the payment of back wages and the need for a comprehensive examination of relevant factors before granting such relief, ensuring a fair and just resolution in industrial dispute cases.
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2006 (2) TMI 707
Issues:
1. Confirmation of demands of Service Tax on the appellant under the category of "Consulting Engineer" services.
2. Jurisdictional validity of the show-cause notice issued to the appellant.
3. Applicability of Service Tax on a non-resident entity for services provided outside India.
4. Interpretation of the term "Consulting Engineer" under the Finance Act, 1994.
5. Liability for penalty in the present case.
Analysis:
1. The appeal revolved around confirming demands of Service Tax on the appellant categorized as "Consulting Engineer" services. The appellant, a foreign-based company in the USA, had entered into a contract for engineering services. The appellant argued that they did not contravene any provisions of the Act, emphasizing that they did not provide consulting engineering services as defined under the Act. They contended that the show-cause notice lacked jurisdiction due to a rule amendment and highlighted their non-resident status. The Tribunal analyzed the services provided by the appellant and concluded that they did not directly offer consulting engineering services, thereby setting aside the demands of Service Tax.
2. The jurisdictional validity of the show-cause notice was challenged by the appellant, citing the lack of jurisdiction due to a rule amendment. The Tribunal agreed with the appellant, noting that the notice issued post-rule amendment lacked sustainability. The circular by CBEC further supported the argument that services provided beyond India's territorial waters are not subject to service tax, strengthening the appellant's position.
3. The issue of applicability of Service Tax on a non-resident entity for services rendered outside India was a crucial aspect of the case. The appellant argued that the provisions of Indian legislation could not be enforced on them as they were located outside India. The Tribunal considered this argument along with relevant judgments and circulars, ultimately ruling in favor of the appellant due to the absence of direct consulting engineering services provided by them.
4. Interpretation of the term "Consulting Engineer" under the Finance Act, 1994, was pivotal in determining the appellant's liability for Service Tax. The appellant contended that their primary activity was manufacturing industrial equipment, not consulting engineering services. Citing precedents and circulars, the appellant successfully argued that their services did not fall under the definition of "Consulting Engineer," leading to the appeal being allowed.
5. The liability for penalty in the present case was disputed by the appellant, who relied on previous judgments to support their stance. The Tribunal, after considering all grounds and submissions, found in favor of the appellant, setting aside the penalty along with the demands of Service Tax. The rulings in similar cases further supported the appellant's position, resulting in a comprehensive victory for the appellant in this legal judgment.
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2006 (2) TMI 706
Issues Involved:
1. Declaration of title and possession.
2. Adverse possession.
3. Identity of the property.
4. Admissibility of evidence given by Power of Attorney Holder.
Issue-wise Detailed Analysis:
1. Declaration of Title and Possession:
The respondent-plaintiff filed a suit for declaration and possession of the suit schedule property, claiming ownership through a registered sale deed dated 24.9.1990. The defendants contested this, denying the plaintiff's ownership and claiming the property belonged to their grandfather, asserting they had perfected their title through adverse possession. The Trial Court, after examining the evidence, held that the plaintiff had established his title to the property. This decision was affirmed by the Appellate Court, leading to the defendants' second appeal.
2. Adverse Possession:
The defendants claimed they had perfected their title by adverse possession, having lived on the property for over thirty years. However, the courts found that the defendants failed to establish this claim with cogent evidence. The courts noted that the defendants' mother had previously filed a suit for declaration and injunction on the grounds of adverse possession, which was dismissed. This dismissal implied an acknowledgment of the plaintiff's title to the property. Consequently, the courts concluded that the defendants' adverse possession claim lacked merit.
3. Identity of the Property:
The defendants argued that there was a discrepancy in the property boundaries as described in the sale deed and the plaint schedule. However, the court found this contention to be without substance. The court noted that the identity of the property was clearly established through documentary evidence, including the registered sale deed (Ex. P4) and the admission of the first defendant regarding the plaintiff's purchase of the property. The court held that the boundaries' discrepancy did not undermine the plaintiff's established title.
4. Admissibility of Evidence Given by Power of Attorney Holder:
The defendants contended that the plaintiff did not personally testify and instead relied on evidence presented by his Power of Attorney Holder, which they argued should be disregarded based on the Supreme Court's ruling in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Limited and Ors. The court clarified that the Supreme Court's decision was context-specific, addressing the competence of a Power of Attorney Holder to testify on matters requiring personal knowledge of the principal. However, in this case, the plaintiff's title was established through documentary evidence, which did not require personal knowledge. The court emphasized that the Power of Attorney Holder could present and prove documents, and the plaintiff's title was substantiated by examining the executant of the sale deed. Thus, the evidence provided by the Power of Attorney Holder was deemed admissible.
Conclusion:
The High Court rejected the second appeal, affirming the concurrent findings of the Trial Court and the Appellate Court. The plaintiff's title to the property was established through documentary evidence, and the defendants failed to prove their adverse possession claim. The court also upheld the admissibility of evidence presented by the Power of Attorney Holder, noting that the plaintiff's case did not rely on matters requiring personal knowledge. Consequently, no substantial question of law arose, and the appeal was dismissed at the admission stage.
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2006 (2) TMI 705
Issues:
1. Validity of eviction application for non-residential premises under Haryana Urban (Control of Rent and Eviction) Act, 1973.
2. Co-owner's right to file eviction suit without explicit consent of other co-owners.
Analysis:
Issue 1: Validity of eviction application for non-residential premises under Haryana Urban (Control of Rent and Eviction) Act, 1973:
The case involved the respondent seeking eviction of the appellant from a shop for his bona fide personal requirement to run a wholesale business in Ayurvedic medicines. The Rent Controller initially dismissed the application, citing lack of proof of bona fide requirement and absence of consent from the respondent's sisters, who were co-owners. However, the Appellate Authority allowed the appeal, finding in favor of the respondent's requirement. The High Court referred to previous judgments and held that eviction for personal requirement in non-residential buildings was permissible post the striking down of relevant provisions. Citing various precedents, including Harbilas Rai Bansal v. State of Punjab, the Supreme Court upheld the High Court's decision, allowing eviction based on the landlord's personal need for the non-residential property.
Issue 2: Co-owner's right to file eviction suit without explicit consent of other co-owners:
The judgment discussed the right of a co-owner to file an eviction suit without explicit consent from all co-owners. Referring to the case of India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla, the Court established that one co-owner can sue for eviction on behalf of all co-owners, assuming their consent unless proven otherwise. It was clarified that a co-owner cannot withdraw consent during the suit to prejudice other co-owners. The Court emphasized that a suit filed by a co-owner is legally maintainable without the need to demonstrate prior consent from other co-owners. In the absence of evidence showing objection from co-owners, the initiation of eviction proceedings by a co-owner remains valid. The judgment highlighted that there is no legal requirement for a co-owner to possess specific qualifications or experience to run a business on the property in question, as long as the bona fide requirement for eviction is established.
In conclusion, the Supreme Court dismissed the appeal, affirming the eviction based on the respondent's bona fide requirement for the non-residential property. The judgment clarified the legality of eviction applications for non-residential premises under the relevant Act and reiterated the rights of co-owners to file eviction suits without explicit consent from all co-owners, provided there is no objection from them during the proceedings.
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2006 (2) TMI 704
Issues Involved:
1. Misconduct and defalcation by the respondent.
2. Validity of the second show cause notice.
3. Authority of the Enquiry Officer to recommend punishment.
4. Quantum of punishment imposed by the disciplinary authority.
5. Judicial review of disciplinary proceedings.
Issue-wise Detailed Analysis:
1. Misconduct and Defalcation by the Respondent:
The respondent, an Assistant Field Officer, was found guilty of several misconducts, including violating instructions for seed distribution, misappropriating funds, remaining absent without permission, and failing to attend meetings. The Enquiry Officer's report concluded that the respondent misappropriated Rs. 26,104 collected from seed growers and was negligent in his duties, leading to a recommendation for punishment.
2. Validity of the Second Show Cause Notice:
The Managing Director issued a second show cause notice, canceling the earlier one, and proposed harsher penalties, including dismissal from service and recovery of defalcated amounts. The High Court found the issuance of the second show cause notice to be illegal, stating that it was not provided for under the rules. However, the Supreme Court noted that there was no statutory interdict preventing the issuance of a second show cause notice to rectify a mistake.
3. Authority of the Enquiry Officer to Recommend Punishment:
The Supreme Court highlighted that the Enquiry Officer did not have the statutory authority to recommend the quantum of punishment. The disciplinary authority, in this case, the Managing Director, was entitled to independently determine the punishment based on the gravity of the misconduct. The Court found that the Managing Director acted within his rights in issuing the second show cause notice and determining the appropriate punishment.
4. Quantum of Punishment Imposed by the Disciplinary Authority:
The High Court interfered with the quantum of punishment, directing reinstatement with continuity in service and full back wages, while imposing the punishment of withholding two increments of pay permanently. The Supreme Court disagreed, stating that the charges against the respondent were serious, involving defalcation and misappropriation. The Court held that the Managing Director was justified in imposing a harsher penalty, including dismissal from service, given the severity of the misconduct.
5. Judicial Review of Disciplinary Proceedings:
The Supreme Court emphasized that judicial review in disciplinary proceedings is limited. The High Court should not have interfered with the quantum of punishment unless it was shockingly disproportionate. The Supreme Court found that the High Court failed to provide sufficient reasons for its interference and noted that the disciplinary authority's decision was based on substantial evidence and compliance with principles of natural justice.
Conclusion:
The Supreme Court set aside the High Court's judgment, upholding the disciplinary authority's decision to dismiss the respondent from service. The Court allowed the appeal, stating that any amount paid to the respondent pursuant to the interim order should not be recovered. No order as to costs was made.
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2006 (2) TMI 703
Issues Involved:
1. Refusal to grant an ad interim order of injunction.
2. Prima facie case for specific performance of contract.
3. Applicability of Section 14(3)(c) of the Specific Relief Act.
4. Validity and revocability of an irrevocable Power-of-Attorney.
5. Balance of convenience and adequacy of damages.
Detailed Analysis:
1. Refusal to Grant an Ad Interim Order of Injunction:
The plaintiffs appealed against the refusal to grant an ad interim order of injunction by the Civil Judge (Senior Division), Alipore. The trial judge had issued a notice to show cause but did not grant the temporary injunction. The plaintiffs sought to restrain the defendants from entering into any fresh agreement with third parties for the development of the suit property.
2. Prima Facie Case for Specific Performance of Contract:
The plaintiffs contended that they had a prima facie case for specific performance of the development agreement. They argued that the trial judge erred in not granting the injunction, citing the significant investments made based on the agreement and the irrevocable Power-of-Attorney granted by the defendants. The plaintiffs claimed that the trial judge misread the materials on record and that the delay in filing the suit should not bar the injunction.
3. Applicability of Section 14(3)(c) of the Specific Relief Act:
The defendants argued that the suit for specific performance by the developer was barred under Section 14(3)(c) of the Specific Relief Act. This section states that certain contracts, including those for construction or execution of work on land, can only be specifically enforced if specific conditions are met. The court found that the plaintiffs, being developers, did not meet the criteria under Section 14(3)(c)(iii), which requires the owner to have handed over possession to the developer. Thus, the plaintiffs lacked a prima facie case for specific performance.
4. Validity and Revocability of an Irrevocable Power-of-Attorney:
The plaintiffs argued that the irrevocable Power-of-Attorney granted by the defendants could not be revoked, and they had invested significant amounts based on this Power-of-Attorney. However, the court held that an irrevocable Power-of-Attorney could be revoked unless it was coupled with an interest in the property. The court found that the Power-of-Attorney was granted solely for the purpose of development and did not create any proprietary interest in the property. Therefore, the revocation of the Power-of-Attorney was valid, and the plaintiffs' claim for permanent injunction based on its revocation was unfounded.
5. Balance of Convenience and Adequacy of Damages:
The court found that the balance of convenience favored refusing the injunction as the plaintiffs had an adequate remedy in the form of damages. The plaintiffs had already claimed damages in the suit, and thus, the refusal to grant the ad interim injunction did not cause irreparable harm. The trial judge's decision to refuse the injunction was upheld as the plaintiffs failed to establish a prima facie case, and the balance of convenience did not support their claim.
Conclusion:
The appeal was dismissed, and the trial judge's refusal to grant an ad interim order of injunction was upheld. The court found no prima facie case for specific performance of the contract as the plaintiffs, being developers, did not meet the criteria under Section 14(3)(c) of the Specific Relief Act. The irrevocable Power-of-Attorney was found to be revocable, and the balance of convenience favored the defendants. The plaintiffs were deemed to have an adequate remedy in the form of damages.
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2006 (2) TMI 702
Issues: Waiver of pre-deposit requirement of Service Tax penalty, limitation on penalty amount, discretion of assessing authority in penalty imposition.
Analysis:
1. Waiver of Pre-Deposit Requirement:
The case involved an application for waiver of pre-deposit requirement of the Service Tax penalty of Rs. 100 every day, as determined by the Commissioner in a review order. The Tribunal found that limiting the penalty equivalent to the amount payable in each case could not be upheld. The Tribunal referred to a decision of the Apex Court in the case of State of Madhya Pradesh v. Bharat Heavy Electricals, where it was held that the assessing authority has the discretion to levy a lesser penalty amount based on the facts and circumstances of each case. Consequently, the Tribunal concluded that the order of limiting the penalty of the Service Tax determined could not be upheld.
2. Limitation on Penalty Amount:
The Tribunal emphasized that even though a mandatory penalty of 100% was prescribed, it should not be upheld without a finding by the assessing officer as to why the penalty levels have been kept at the mandatory levels. The Tribunal noted that there were no reasons provided in the order, and the reasons that were mentioned appeared to be in conflict with the order. Therefore, the Tribunal held that the exercise of discretion by the Commissioner in this matter could not be upheld. As a result, the appeals were allowed at this stage, after the waiver of pre-deposit, by upholding the order of the lower authority and setting aside the impugned orders.
3. Discretion of Assessing Authority in Penalty Imposition:
The Tribunal reiterated the principle established by the Apex Court that the assessing authority has the discretion to determine the reasonable amount of penalty to be imposed, with the maximum penalty being ten times the amount of the entry tax. This discretion allows the assessing authority to levy a lesser penalty amount based on the specific facts and circumstances of each case. The Tribunal highlighted that the provision for levy of penalty equal to ten times the amount of entry tax should be construed as a maximum limit, and not a fixed amount, providing room for the imposition of a lesser penalty amount as deemed appropriate by the assessing authority.
In conclusion, the Tribunal's judgment emphasized the importance of considering the specific circumstances of each case in determining the appropriate penalty amount, highlighting the assessing authority's discretion in penalty imposition and the need for valid reasons to support the penalty levels set.
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2006 (2) TMI 701
Issues:
1. Interpretation of section 147 of the Income-tax Act regarding the reopening of assessments.
2. Allowance of deductions under sections 80-HH and 80-I when conditions are not fulfilled by the assessee.
Analysis:
1. The appeal before the Madhya Pradesh High Court involved the interpretation of section 147 of the Income-tax Act. The primary issue was whether the reassessment done under section 147 was valid or if it was merely a change of opinion by the Assessing Officer. The court referred to a decision of the Full Bench of the Delhi High Court in CIT v. Kelvinator of India Ltd., where it was held that a mere change of opinion cannot be the basis for reopening a completed assessment. The court agreed with this principle, stating that the legislative intent and the scheme of the Act do not allow reassessment based solely on a change of opinion. Consequently, the court ruled in favor of the assessee, holding that the reassessment was not proper under section 147.
2. The second issue in the appeal pertained to the allowance of deductions under sections 80-HH and 80-I even if the express conditions laid down under these sections were not fulfilled by the assessee. However, since the court had already decided in favor of the assessee on the first issue regarding the validity of reassessment, it deemed the second question to be academic in nature. The court declined to examine and answer the second question on its merits, leaving it to be decided in another case if necessary. Ultimately, the court dismissed the appeal, ruling against the appellant (revenue) and in favor of the assessee.
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2006 (2) TMI 700
Issues:
1. Appeal against detention under the Tamil Nadu Prevention of Dangerous Activities Act, 1982.
2. Grounds of detention based on multiple criminal cases against the appellant.
3. Challenge regarding the impact on public order.
4. Justification for detention despite the appellant being in custody.
5. Application of legal principles on preventive detention in the case.
Issue 1: Appeal against detention under the Tamil Nadu Prevention of Dangerous Activities Act, 1982.
The appellant appealed against the High Court's decision upholding his detention under the Tamil Nadu Prevention of Dangerous Activities Act, 1982. The detaining authority found the appellant to be a 'goonda' under the Act and detained him to prevent him from engaging in activities prejudicial to public order. The detention order was passed on December 15, 2004.
Issue 2: Grounds of detention based on multiple criminal cases against the appellant.
The appellant's detention was based on seven criminal cases where he was accused of exploiting followers, including sexually exploiting individuals and cheating them financially under false pretenses. The detaining authority found these activities to be detrimental to public order, justifying the detention under the Act.
Issue 3: Challenge regarding the impact on public order.
The appellant argued that the allegations against him pertained to individual cases and did not disturb public order significantly. However, the High Court upheld the detention, stating that the activities attributed to the appellant were shocking and illegal, posing a threat to public order. The High Court affirmed the detaining authority's subjective satisfaction.
Issue 4: Justification for detention despite the appellant being in custody.
The appellant's counsel contended that the appellant was already in custody when the detention order was issued, with no imminent chance of bail. Despite this, the detaining authority passed the detention order based on the possibility of the appellant seeking bail in the future. The Supreme Court held that preventive detention should not be exercised when there is no imminent chance of release from custody.
Issue 5: Application of legal principles on preventive detention in the case.
The Supreme Court referred to past judgments emphasizing that preventive detention should be used in exceptional cases and with caution. The Court highlighted the need for reliable material to justify detention, especially when the individual is already in custody. The Court found that in this case, there was no substantial evidence to support the detaining authority's belief that the appellant would seek bail imminently, leading to the Court ordering the appellant's release on December 13, 2005.
This detailed analysis covers the key issues raised in the legal judgment, providing a comprehensive overview of the case and the Supreme Court's decision.
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2006 (2) TMI 699
Issues Involved:
1. Allegations of illegal detention, custodial torture, and harassment.
2. The validity of the actions taken by the police in their efforts to locate Joginder Singh.
3. The credibility of the petitioner's claims.
4. The appropriate legal remedies and whether compensation should be awarded for the alleged violations of fundamental rights under Article 21 of the Constitution of India.
Detailed Analysis:
Allegations of Illegal Detention, Custodial Torture, and Harassment:
The petitioner alleged that he and his family were subjected to illegal detention, custodial torture, and harassment by the police in their efforts to locate his son, Joginder Singh. The petitioner claimed that he was beaten, his moustache was plucked, and he was forced to drink hot water with salt. His wife and daughters were also allegedly mistreated, and his licensed gun, cartridges, and gold ornaments were seized. The petitioner sought compensation for the social, physical, and financial loss suffered by him and his family.
Validity of Police Actions:
The police contended that their actions were part of legitimate efforts to locate Joginder Singh, who was involved in multiple serious criminal activities, including the murder of a police constable and escaping from police custody. The police argued that the petitioner and his family were questioned to ascertain Joginder's whereabouts.
Credibility of Petitioner's Claims:
The CBI conducted an inquiry and found that while there was some evidence of illegal detention and beating, the allegations of custodial torture were exaggerated and, to an extent, false. The CBI report noted that the petitioner had a history of criminal cases, and his son Joginder Singh was involved in numerous criminal activities. The petitioner's claims of disowning his son were found to be false, as evidence showed regular contact between the petitioner's family and Joginder.
Legal Remedies and Compensation:
The Supreme Court considered whether compensation should be awarded for the alleged violations of Article 21. The Court referred to established jurisprudence, noting that compensation as a public law remedy is appropriate for gross and patent violations of fundamental rights. However, in this case, the Court found that the allegations were not incontrovertible and were exaggerated. There was no medical evidence or visible marks to support the claims of torture.
The Court emphasized that while custodial violence is condemnable, compensation should only be awarded in cases where the violation is patent and incontrovertible, and where there is independent evidence of custodial torture. The Court concluded that this case did not meet the criteria for awarding compensation as a public law remedy.
Conclusion:
The Supreme Court held that there was no clear or incontrovertible evidence of custodial torture, and several allegations were exaggerated and false. Consequently, the Court did not consider it a fit case for awarding compensation. The Court noted that appropriate reliefs had already been granted by ordering a CBI inquiry and ensuring the prosecution of the police officers involved. The petition was disposed of with the observation that this order would not preclude any civil court from awarding compensation in a tort action or a criminal court from awarding compensation under Section 357 of the Code of Civil Procedure if the charges were established.
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2006 (2) TMI 698
Preservation of and restoration of status quo ante of tanks called `Avilala Tank' and `Peruru Tank' - Systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi Town - challenged the Government Orders, directed to hand over the tank bed areas of Avilala tank and Peruru tank to TTD and to A.P. Housing Board - Prayer made by the Indian Medical Association due to alarming increase of the toxic contents like Fluorides and other salts in the underground water due to steep fall in the underground water table level - Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources? - HELD THAT:- The set of facts in the present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the Division bench of the High Court of Andhra Pradesh despite there being overwhelming evidence of the tanks being in existence and were being put to use not only for irrigation purpose but also as lakes which were furthering percolation to improve the ground water table, thus serving the needs of the people in and around these tanks. The Division Bench of the High Court, in the impugned order, has given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of environment and protection of valuable and most cherished fresh water resources. No doubt, the wishful thinking and the desire of the appellant- forum , that the Tanks should be there, and the old glory of the tanks should be continued, is laudable. But the ground realities are otherwise.
We have already noticed the ground realities as pointed out by the Government of Andhra Pradesh, TUDA and TTD in their reply to the Civil appeals by furnishing details, datas and particulars. Now a days because of the poverty and lack of employment avenues, migration of people from rural areas to urban areas is a common phenomenon. Because of the limited infrastructure of the towns, the towns are becoming slums. We, therefore, cannot countenance the submissions made by the appellant in regard to the complete restoration and revival of two tanks in the peculiar facts and circumstances of this case. We cannot, at the same time, prevent the Government from proceeding with the proper development of Tirupathi town.
The two Government Orders which are impugned have been issued long before and pursuant to the issuance of the Government Orders, several other developments have taken place. Constructions and improvements have been made in a vast measure. Because of spending crores and crores of rupees by various authorities, the only option now left to the appellant and the respondents is to see that the report submitted by the Expert Committee is implemented in its letter and spirit and all the respondents shall cooperate in giving effect to the Committee's report.
The Respondents have claimed that the valuable right to shelter will be violated if the impugned Government Orders are revoked. On the facts of the present case, it seems that the respondents intend to build residential blocks of flat for High and Middle income families, institutions as well as infrastructure for the TTDS. If the proposed constructions are not carried on, it seems unlikely that anyone will be left homeless or without their basic need for shelter. Therefore, one feels that the right to shelter does not seem to be so pressing under the present circumstances so as to outweigh all environmental considerations.
Another plea repeatedly taken by the respondents correspond to the money already spent on developing the land. However, the decision of this case cannot be based solely upon the investments committed by any party. Since, otherwise, it would seem that once any party makes certain investment in a project, it would be a fait accompli and this Court will not have any option but to deem it legal. Therefore, under the present circumstances, the Court should do the most it can to safeguard the two tanks in question. However, due to the persistent developmental activities over a long time, much of the natural resources of the lakes has been lost, and considered irreparable. This, though regrettable, is beyond the power of this court to rectify.
One particular feature of this case was the competing nature of claims by both the parties on the present state of the two tanks and the feasibility of their revival. We thought that it would be best, therefore, if we place reliance on the findings of the expert committee appointed by us which has considered the factual situation and the feasibility of revival of the two tanks. Thus in pursuance of a study of that committee, this Court passes the following orders.
The appeals are disposed of with the following directions: With regard to Peruru tank: - (i) No further constructions to be made.
(ii) The supply channel of Bodeddula Vanka needs to be cleared and revitalized. A small check dam at Malapali to be removed to ensure the free flow and supply to the tank.
(iii) Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank, keeping in mind its advantage at being situated at the foot hills.
(iv) The area allotted by Mandal Revenue Office for construction of the tank to be increased to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts to be developed to recharge the unsaturated horizons up to 20 m. The design of the shafts etc. to be prepared in consultation with the CGWB. The proposed percolation tank to be suitably located along the bund keeping in view the inlets, irrigation sluices and surplus water.
(v) Feasibility and cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the Court.
(vi) Each house already constructed by the TTD must provide for roof top rain water harvesting. Abstraction from ground water to be completely banned. No borewell/ tubewell for any purpose to be allowed in the area.
(vii) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
With regard to Avilala tank: - (i) No further construction to be allowed in the area.
(ii) Each house already constructed by the APHB/ TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with the CGWB.
(iii) No borewell/ tubewell for any purpose to be allowed in the area.
(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.
(v) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
We place on record our deep appreciation for the valuable assistance rendered by all the counsel appearing in this case which made our job easier. The appeals are disposed of accordingly no costs.
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2006 (2) TMI 697
Issues Involved:
1. Whether the suit is barred by res judicata?
2. Whether the suit is barred by the law of limitation?
3. Whether the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 is applicable in this case and if the plaintiff is entitled to interest under the Act?
Issue-wise Detailed Analysis:
1. Whether the suit is barred by res judicata?
The appellants argued that the suit is barred by res judicata because the claim of interest was made in Money Suit No. 97 of 1996 and was also the subject matter in the writ application (C.W.J.C. No. 274 of 1994). The respondent countered that the issue of interest was not decided in either case. The judgment of Money Suit No. 97 of 1996 showed that no order was passed on the issue of interest due to the pending writ application. The High Court had allowed the withdrawal of the writ application to enable the filing of a properly constituted suit. Hence, the issue of interest was not heard and decided, and the suit is not barred by res judicata.
2. Whether the suit is barred by the law of limitation?
The appellants contended that the suit was barred by limitation. The respondent argued that the supplies continued until 30.4.1993, and the cause of action arose on 1.6.1993. The suit was filed on 20.12.1997, but the High Court's order dated 20.10.1997 in C.W.J.C. No. 274 of 1994 allowed the exclusion of the period from 10.1.1994 to 20.10.1997 under Section 14 of the Limitation Act. The lower court record confirmed that such an application was filed. Therefore, the suit was filed within the permissible period and is not barred by limitation.
3. Whether the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 is applicable in this case and if the plaintiff is entitled to interest under the Act?
The appellants argued that the Act is not applicable for three reasons: (1) there was no agreement for interest, (2) the Act came into force after the agreement was executed, and (3) the respondent failed to supply the materials on time. The respondent countered that the non obstante clauses in Sections 4 and 5 of the Act entitle them to interest regardless of any agreement. The Act came into force on 23.9.1992, and the cause of action for delayed payment arose on 1.6.1993. The Supreme Court's decision in Assam Small Scale Industrial Development Corporation Limited v. J.D. Pharmaceuticals established that the crucial date is the date of the supply order. Since the supply order in this case was placed on 16.7.1992, prior to the Act's commencement, the Act is not applicable. However, the Court allowed simple interest at the rate of 9% per annum in terms of Section 34 of the Code of Civil Procedure from 1.6.1993 till realization, modifying the trial court's decree of 24% compound interest.
Conclusion:
The appeal was allowed in part, modifying the trial court's judgment to award simple interest at the rate of 9% per annum from 1.6.1993 till realization instead of compound interest at 24%. The liability of payment of interest is subject to the decision of the First Appeal pending in the High Court arising out of Money Suit No. 97 of 1996.
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2006 (2) TMI 696
Issues Involved:
1. Quashing of the process issued by the Chief Judicial Magistrate (CJM), Alipore.
2. Allegations of criminal conspiracy and misappropriation of trust assets.
3. Validity and revocability of the mutual and reciprocal trusts.
4. Entrustment and breach of trust under Section 406 of the Indian Penal Code (IPC).
5. Allegations of cheating under Section 420 of IPC.
6. Applicability of inherent powers under Section 482 of the Code of Criminal Procedure (Cr.PC).
Issue-Wise Detailed Analysis:
1. Quashing of the Process Issued by CJM, Alipore:
These appeals challenge the High Court of Calcutta's refusal to quash the process issued by the CJM, Alipore, for alleged offenses under Sections 120-B, 406, 417, and 420 of the IPC. The CJM had held that a prima facie case was made out against the accused.
2. Allegations of Criminal Conspiracy and Misappropriation of Trust Assets:
The complainant, a former employee of the MP Birla Group, alleged that the accused conspired to misappropriate assets worth Rs. 2400 crores, which were vested in public charitable institutions through five mutual and reciprocal trusts. The complaint stated that these trusts were irrevocable and that the accused created false evidence to show that the trusts were dissolved before the execution of a will by Smt. Birla, which purportedly transferred all assets to R.S. Lodha.
3. Validity and Revocability of the Mutual and Reciprocal Trusts:
The complainant argued that the mutual wills and trusts executed by the couple in 1981, 1982, and 1988 were irrevocable and intended for charity. The accused, however, contended that the trusts were expressly revocable, and Smt. Birla had the authority to dissolve them and make new nominations.
4. Entrustment and Breach of Trust under Section 406 of IPC:
The complainant alleged that the accused, by revoking the trusts and converting the assets for personal gain, committed criminal breach of trust. The accused argued that there was no valid entrustment of property to constitute an offense under Section 406, IPC, as the trusts were private and revocable, and Smt. Birla had absolute power over the trust property.
5. Allegations of Cheating under Section 420 of IPC:
The complaint included allegations of cheating, claiming that R.S. Lodha induced Smt. Birla to sign the will by false representation, thereby converting charitable assets to his personal property. The accused argued that the complaint did not disclose the ingredients of the offense of cheating.
6. Applicability of Inherent Powers under Section 482 of Cr.PC:
The accused sought the quashing of the criminal proceedings under Section 482, Cr.PC, arguing that the complaint was frivolous, vexatious, and constituted an abuse of the process of law. The court held that the issues raised in the complaint involved complicated questions of civil law that should be decided in regular civil proceedings and not in a criminal court.
Conclusion:
The Supreme Court dismissed the appeals, holding that the complaint disclosed sufficient grounds to proceed with the criminal case. The court emphasized that the allegations of criminal conspiracy, misappropriation, and breach of trust needed to be fully inquired into, and it was premature to dismiss the complaint at this stage. The court reiterated that the observations made should not be construed as an opinion on the merits of the case.
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2006 (2) TMI 695
Issues:
1. Jurisdiction of the Trial Court to recall the order allowing withdrawal of the suit.
2. Application of Section 151 of the Code of Civil Procedure for recalling the order.
3. Interpretation of inherent powers of the Court to do justice between the parties.
Issue 1: Jurisdiction of the Trial Court to recall the order allowing withdrawal of the suit:
The case involved an agreement for sale of premises which was later cancelled. The respondent filed a suit for specific performance, which was later withdrawn without leave to file a fresh suit. The Trial Court allowed the withdrawal without granting leave. The High Court, in exercise of powers under Article 227, restored the suit for trial. The appellants contended that without a prayer for leave to file a fresh suit, the Trial Court or the High Court had no authority to entertain the respondent's application for restoration. However, the High Court relied on inherent powers under Section 151 of the CPC to restore the suit, emphasizing the need to do justice between the parties.
Issue 2: Application of Section 151 of the Code of Civil Procedure for recalling the order:
The Trial Court's initial order allowing withdrawal of the suit did not include any provision for filing a fresh suit. The respondent later sought to recall this order citing misrepresentation by the property owners. The Trial Court, in its discretion, rejected this application. The High Court, invoking its inherent powers under Section 151 of the CPC, restored the suit for trial, emphasizing the need to correct any injustice caused by the withdrawal of the suit based on misrepresentation.
Issue 3: Interpretation of inherent powers of the Court to do justice between the parties:
The High Court's decision to restore the suit was challenged on the grounds of lack of jurisdiction. However, the Court clarified that in the absence of specific provisions in the CPC, inherent powers under Section 151 can be utilized to ensure justice between the parties. The Court cited precedent where similar circumstances warranted the setting aside of an order permitting withdrawal of a suit. The principle of acting ex debito justitiae for substantial justice guided the Court's decision to uphold the restoration of the suit.
In conclusion, the Supreme Court dismissed the appeals, affirming the High Court's decision to restore the suit based on the application of inherent powers under Section 151 of the CPC to rectify any injustice caused by the withdrawal of the suit without leave to file a fresh suit. The Court emphasized the importance of ensuring justice between the parties in the absence of specific procedural provisions, citing precedent where similar actions were deemed necessary for substantial justice.
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2006 (2) TMI 694
Issues Involved:
1. Jurisdiction of the Court
2. Prima facie case and irreparable injury
3. Application of Civil Procedure Code (CPC) principles
Detailed Analysis:
1. Jurisdiction of the Court:
The appellant contended that the jurisdiction clause in the agreement specified that the Hyderabad Courts would have final jurisdiction, thus excluding other courts, including the Madras High Court. However, the objection to jurisdiction was not pressed during the initial hearing before the learned single Judge. The Court noted that the agreements were signed, goods and materials were sent, and payments were made at Chennai, creating a part of the cause of action within the jurisdiction of the Madras High Court. The Court emphasized that as per Section 21 of the CPC, objections to jurisdiction must be raised at the earliest opportunity. Since the appellant did not press the jurisdictional objection during the initial trial, they waived their right to raise it at the appellate stage. The Court cited Kiran Singh v. Chaman Paswan and Bahrein Petroleum Co. Ltd. v. P.J. Pappu to support the principle that objections to jurisdiction, if not raised timely, are considered waived.
2. Prima facie Case and Irreparable Injury:
The Court examined whether the first respondent made out a prima facie case for the grant of interlocutory reliefs. The appellant argued that they had a Power Purchase Agreement with the Garnishee, ensuring continuous earnings of Rs. 80 lakhs per month, which negated any apprehension of irreparable injury to the first respondent. The Court agreed with the appellant, noting that even if the first respondent succeeded in the arbitration proceedings, there would be no difficulty in recovering the money due to the continuous payments from the Garnishee. The Court concluded that the first respondent failed to demonstrate a prima facie case or irreparable damage, and thus, the prohibitory order was not justified.
3. Application of Civil Procedure Code (CPC) Principles:
The appellant argued that the principles of Order 38 Rule 5 and Order 39 Rules 1 & 2 of the CPC should apply, as the relief sought was in the nature of attachment before judgment and injunction. The Court acknowledged that while the Arbitration and Conciliation Act, 1996 does not explicitly incorporate these provisions, their principles are applicable. The Court referenced I.T.I. Ltd. v. Siemens Public Communications Network Ltd., which held that the CPC's procedural aspects should guide the exercise of power under Section 9 of the Act. The Court also cited a Delhi High Court decision, Goel Associates v. Jivan Bima Rashtriya Avas Samiti Ltd., which supported the application of CPC principles in arbitration proceedings.
Conclusion:
The appeal was allowed, and the prohibitory order of the learned single Judge was set aside. The Court held that the appellant had waived their jurisdictional objection by not pressing it during the initial hearing. Furthermore, the first respondent failed to establish a prima facie case or irreparable injury, and the principles of the CPC applied to the proceedings under the Arbitration and Conciliation Act, 1996. Consequently, the interim reliefs sought by the first respondent were denied.
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2006 (2) TMI 693
Issues Involved:
1. Settlement of Sales Tax Dues
2. Partner's Liability for Sales Tax
3. Validity of Ex Parte Assessment Orders
4. Non-Production of Relevant Files
5. Binding Nature of Civil Court Decree
Detailed Analysis:
1. Settlement of Sales Tax Dues
The petitioner claimed that a settlement with the State Minister for Finance absolved him of all sales tax dues for Samvat years 2034 and 2035. He argued that the Commissioner of Sales Tax quantified his liability at Rs. 4,52,006, which he paid, believing it to be a full and final settlement. However, the court found no evidence of a formal settlement order from the State Minister for Finance. The letters from the Commissioner did not indicate any such settlement, and the petitioner failed to produce any official settlement order. The court concluded that the petitioner could not rely on the alleged settlement to escape liability.
2. Partner's Liability for Sales Tax
The petitioner was held liable for the firm's sales tax dues as a partner. Despite his claims of being a "formal partner" and retiring from the firm, the court upheld the joint and several liability provisions under Section 18 of the Bombay Sales Tax Act (B.S.T. Act). The court emphasized that the liability of a partner is joint and several, and there was no provision in the B.S.T. Act allowing for the settlement of an individual partner's liability. The Commissioner of Sales Tax's quantification of liability based on the partnership deed was found to be contrary to the express provisions of the Act and not binding on the department.
3. Validity of Ex Parte Assessment Orders
The petitioner contested the ex parte assessment orders for Samvat years 2034 and 2035, arguing that he was not given adequate opportunity to present his case. The court noted that the petitioner had sought adjournments and delayed the proceedings, leading to the ex parte orders. The assessment orders confirmed significant tax demands, and the first appellate authority upheld these orders, rejecting the petitioner's claims of not being a partner. The court found no merit in the petitioner's challenge to the validity of the assessment orders.
4. Non-Production of Relevant Files
The petitioner argued that the non-production of relevant files by the respondents indicated deliberate withholding of evidence. The court, however, did not accept this contention. It noted that the respondents had consistently maintained that the files were untraceable, and there was no reason for the authorities to withhold files if a genuine settlement had been reached. The court found the petitioner's conduct, including not withdrawing pending appeals and suits, inconsistent with his claims of a settlement, further casting doubt on the genuineness of the alleged settlement.
5. Binding Nature of Civil Court Decree
The petitioner relied on a decree from the City Civil Court at Bombay, which declared that he was not a partner of the firm at any time. The court held that this decree did not bind the sales tax authorities, as they were not parties to the suit. The court emphasized that the concept of a "formal partner" is foreign to the Partnership Act, and the findings of the adjudicating authority and the first appellate authority regarding the petitioner's partnership status remained binding.
Conclusion:
The court dismissed the petition, ruling that the petitioner failed to establish any settlement absolving him of liability. The petitioner's liability as a partner for the firm's sales tax dues was upheld, and the ex parte assessment orders were found valid. The non-production of files did not warrant an adverse inference against the respondents, and the civil court decree did not affect the sales tax authorities' rights to recover dues from the petitioner. The petition was dismissed with no order as to costs.
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2006 (2) TMI 692
Issues:
Quashment of criminal proceedings under Section 138 of the Negotiable Instruments Act.
Analysis:
The respondent/complainant alleged that the accused company borrowed a sum for development and issued a cheque that was dishonored. The complaint was filed before the expiry of the 15-day notice period, which the accused argued was premature. The accused claimed the amount was repaid, and one of the cheques was misused. The court noted that disputed facts should be addressed during trial and cannot be decided under Section 482 of the Code of Criminal Procedure.
The court referred to the Supreme Court's ruling in Prem Chand Vijay Kumar v. Yashpal Singh, stating that the complaint must be filed within one month after the 15-day notice period expires. The court clarified that the limitation starts after the first notice's 15-day period ends. It cited a similar case where the complaint's premature filing does not absolve the accused from liability.
Section 138(c) of the Negotiable Instruments Act mandates payment within 15 days of notice receipt. Section 142 outlines the procedure for taking cognizance of offenses under Section 138. The court emphasized that the offense occurs when the drawer fails to respond within 15 days of notice receipt.
The court found that the complaint was filed before the accused's 15-day period ended but was taken cognizance of after the expiry. It held that such complaints taken after the notice period are sustainable. The court emphasized that the complaint must mature before court cognizance, and premature filing does not invalidate it. The complainant's actions to protect their rights, even before the cause of action matured, were deemed acceptable. Consequently, the petition to quash the criminal proceedings was dismissed, allowing the accused to raise their points during trial.
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2006 (2) TMI 691
Issues Involved:
1. Application for leave to defend under Order 37 Rule 3 of the Code of Civil Procedure, 1908.
2. Validity of the cheques as the basis for the summary suit.
3. Material alteration of cheques under Section 87 of the Negotiable Instruments Act, 1881.
4. Principles for granting leave to defend as per Supreme Court guidelines.
Issue-wise Detailed Analysis:
1. Application for leave to defend under Order 37 Rule 3 of the Code of Civil Procedure, 1908:
The defendant applied for leave to defend the summary suit instituted by the plaintiff. The plaintiff alleged that the defendant had engaged its services for conducting market research surveys in India concerning the sale of Canadian Gold Coins and had not paid for these services. The plaintiff's case was primarily based on four cheques amounting to Rs. 1,34,32,500/-, which were issued by the defendant but not honored.
2. Validity of the cheques as the basis for the summary suit:
The plaintiff's claim was based on four cheques issued by the defendant, two of which were dated 12.09.2000 and two were undated. The defendant argued that since the suit was based on cheques that were never presented, it should not be maintainable under Order 37 and should be treated as an ordinary suit for recovery of money. The court noted that the plaintiff had presented only the two undated cheques, which were returned with the endorsement 'Attachment Order,' while the other two cheques were not presented within their validity period.
3. Material alteration of cheques under Section 87 of the Negotiable Instruments Act, 1881:
The defendant contended that the undated cheques were subsequently dated by the plaintiff, constituting a material alteration under Section 87 of the Negotiable Instruments Act, 1881, which would render the cheques void. The court examined whether the alterations were made with the consent of the defendant or in furtherance of a common intention. The court found that the plaintiff presented the cheques without the defendant's confirmation, indicating no consent to the alteration, thus prima facie rendering the cheques void.
4. Principles for granting leave to defend as per Supreme Court guidelines:
The court referred to the principles set out in the Supreme Court decision in M/s Mechelec Engineers & Manufacturers v. Basic Equipment Corporation, which outlines conditions under which leave to defend should be granted. The court concluded that the defendant raised a friable issue regarding the validity of the cheques, warranting unconditional leave to defend. The court emphasized that the matter required a full trial to determine the validity of the cheques and the plaintiff's claim for recovery of money.
Conclusion:
The court allowed the defendant's application for leave to defend, stating that the defendant had raised a reasonable defense concerning the validity of the cheques. The observations made were of a prima facie nature, and the case would proceed to a full trial to resolve the issues. The application for leave to defend was thus disposed of.
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2006 (2) TMI 690
The Delhi High Court dismissed the appeal after the appellant's counsel conceded that the issues were already addressed in a previous Division Bench order dated 25th August 2005. The citation for this case is 2006 (2) TMI 690.
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2006 (2) TMI 689
Issues:
Challenge to order rejecting duty rebate on exported goods.
Analysis:
The petitioners challenged an order rejecting duty rebate on goods exported. The dispute arose from the refusal of the respondents to grant duty rebate on chassis manufactured and cleared by the petitioners for body building. The petitioners paid central excise duty on the chassis, and after body building, the motor vehicles were cleared and exported. The competent authority rejected the rebate claim stating that the exported goods were motor vehicles, not chassis, as the identity of the chassis was lost after body building. The petitioners' appeal and subsequent application were also dismissed. Both parties agreed that chassis numbers from shipping bills could establish the connection to the duty-paid chassis.
The Court referred to Rule 12 of the Central Excise Rules, 1944, which allows rebate of duty on exported goods subject to specified conditions. The Rule empowers the Collector to grant rebate if satisfied that the goods have been exported, even if all conditions are not met. The Court set aside the orders and directed the Commissioner of Customs to verify from records the duty paid chassis manufactured by the petitioners and exported as motor vehicles. The Court allowed the petition, making the rule absolute without costs.
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