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1989 (3) TMI 385
Issues Involved:
1. Promissory Estoppel
2. Eligibility for Concessional Duty under Heading No. 84.66
3. Definition of "Industrial Plant"
4. Authority of Customs Department
Detailed Analysis:
Promissory Estoppel:
The first issue addressed was whether the Customs Department is bound by promissory estoppel to allow concessional duty under Heading No. 84.66 and register the contract accordingly. The petitioner argued that representations made by the Department of Industry and the Joint Chief Controller of Imports and Exports, which endorsed the import license for concessional duty, should bind the Customs Department. The court noted that the Handbook of Import and Export Procedures allows the Customs Officer discretion to grant concessional duty based on the recommendation of the Sponsoring Authority. The court concluded that no clear and unequivocal promise was made by any governmental authority that the machinery would be eligible for concessional duty. Therefore, the Customs Department was not bound by promissory estoppel.
Eligibility for Concessional Duty under Heading No. 84.66:
The second issue was whether the machinery imported by the petitioner was eligible for concessional duty under Heading No. 84.66 of the Customs Tariff Act. The Customs Department contended that the machinery did not qualify as it was for the expansion of a film laboratory, which they argued was not an industrial plant. The court emphasized that the term "industrial plant" is not defined in the Customs Tariff Act and relied on dictionary meanings, which generally associate "plant" with industrial or mechanical business. The court found that the film processing laboratory could be considered an industrial plant as it involves mechanical processing, transforming the film into a new product. However, the court also noted that Heading No. 84.66 requires the industrial plant to be specified by the Central Government, and there was no evidence that the film processing laboratory was specified as such.
Definition of "Industrial Plant":
The court examined whether the film processing laboratory qualifies as an "industrial plant." The dictionary definitions of "plant" and "industry" were considered, and it was determined that an industrial plant involves mechanical or industrial business. The court found that the film processing laboratory fits this definition as it involves mechanical processing of films, transforming them into a new product. However, the court noted that the concessional duty under Heading No. 84.66 applies only to specified industrial plants, and there was no indication that the film processing laboratory was specified by the Central Government.
Authority of Customs Department:
The final issue was whether the Customs Department had the authority to refuse registration of the contract under Heading No. 84.66. The court held that the Customs Department has the exclusive jurisdiction to determine the eligibility for concessional duty and to register contracts accordingly. The court emphasized that the Customs Officer must exercise discretion fairly and independently, even if the Sponsoring Authority recommends concessional duty. The court concluded that the Customs Department acted within its jurisdiction and did not commit any illegality in refusing to register the contract.
Conclusion:
The writ petition was dismissed, and the court upheld the Customs Department's decision to refuse registration of the contract under Heading No. 84.66. The court found no binding promise or representation that would invoke promissory estoppel, and it concluded that the film processing laboratory was not specified as an industrial plant eligible for concessional duty under Heading No. 84.66. The Customs Department was within its rights to independently assess and refuse the registration.
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1989 (3) TMI 384
Issues Involved:
1. Constitutional validity of Rule 4(A) of the Rules framed by the Bombay Municipal Corporation for admission to post-graduate courses.
2. Constitutional validity of Rule 5 framed under the Government Resolution dated June 18, 1971 for admission to the Government Medical College.
3. Discrimination and violation of Article 14 of the Constitution.
4. Collegewise institutional preference for admission to post-graduate courses.
5. Evaluation of merit and standardization of practical examinations.
6. Justification of institutional continuity and preference based on institutional affiliation.
Detailed Analysis:
1. Constitutional Validity of Rule 4(A) and Rule 5:
The principal issue revolves around the constitutional validity of Rule 4(A) framed by the Bombay Municipal Corporation and Rule 5 framed under the Government Resolution dated June 18, 1971. Both rules provided for collegewise institutional preference for admission to post-graduate courses. The High Court struck down Rule 4(A) in its entirety and Rule 5 in part, deeming them discriminatory and violative of Article 14 of the Constitution, rendering them invalid.
2. Discrimination and Violation of Article 14:
The rules in question were challenged on the grounds of discrimination. The High Court found that these rules created an unjustifiable classification that favored students from specific colleges, thereby violating the principle of equality enshrined in Article 14. The Supreme Court upheld this view, emphasizing that any classification must have a rational nexus to the object sought to be achieved, which in this case was to prefer merit for post-graduate courses.
3. Collegewise Institutional Preference:
The Supreme Court examined whether collegewise institutional preference was permissible. It referred to the case of Dr. Pradeep Jain v. Union of India, where the Court had condemned wholesale reservation based on domicile or institutional preference that excluded more meritorious students. The Court clarified that the term "institutional preference" in Pradeep Jain's case referred to university-wise preference, not collegewise preference. Therefore, the Court did not uphold collegewise institutional preference.
4. Evaluation of Merit and Standardization of Practical Examinations:
The appellants argued that practical examinations conducted by individual colleges made it difficult to compare and evaluate the merits of candidates from different colleges. However, the Supreme Court rejected this contention, noting that practical exams were conducted by a mix of internal and external examiners appointed by the University. The Court found no evidence to support the claim that different standards were applied by different colleges.
5. Justification of Institutional Continuity:
The appellants also argued that institutional continuity justified collegewise preference, citing the convenience and familiarity of students with their own institutions. The Court, however, found this argument unconvincing, stating that institutional continuity did not justify discrimination against more meritorious students from other colleges.
6. Institutional Preference Based on Institutional Affiliation:
The Court examined the broader implications of institutional preference, noting that such preferences should not exceed 50% of the total number of open seats and should be subject to revision by the Indian Medical Council. The Court emphasized that any preference should be based on merit and not on the affiliation to a particular college.
Conclusion:
The Supreme Court upheld the High Court's decision to strike down Rule 4(A) and part of Rule 5, declaring them discriminatory and unconstitutional. The Court directed that students already admitted under the impugned rules should not be disturbed. It also allowed for the framing of new rules consistent with the judgment and Article 14 of the Constitution. The appeals were dismissed without any order as to costs. The Court also considered the reasonable requests for admission of certain students based on merit, provided seats were available.
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1989 (3) TMI 383
Issues Involved:
1. Valuation of the house and well.
2. Nature of the land (agricultural vs. urbanized developed land).
3. Consideration of potential value of the land.
4. Deduction of development charges from the agreed price.
5. Appropriate market value determination for compensation.
Detailed Analysis:
1. Valuation of the House and Well:
The appellant contended that the house and the well were grossly undervalued. The Tribunal observed that the house was in an extremely dilapidated condition with significant structural damage. The house was estimated to be 20-25 years old with a depreciation rate of 5% per year. The Tribunal awarded Rs. 5,000 for the house and Rs. 3,000 for the well. The Supreme Court found this valuation reasonable based on the evidence and upheld the Tribunal's award, stating there was no error in principle.
2. Nature of the Land:
The appellant argued that the land should have been treated as urbanized developed land rather than agricultural land. The Tribunal initially treated the land as agricultural due to the lack of substantial building activity. However, the High Court considered the potential for development and treated it as developed land. The Supreme Court agreed with the High Court's approach, emphasizing that the land's potential for future development should be considered in its valuation.
3. Consideration of Potential Value:
The appellant argued that the potential value of the land was not adequately considered. The Supreme Court highlighted that the market value should include potential uses of the land, referencing principles from Gajapatiraju v. Rev. Divisional Officer. The Court stated that the land's proximity to urban areas and its potential for residential development should be factored into its valuation. The High Court's failure to fully account for this potential was noted, and the Supreme Court adjusted the compensation accordingly.
4. Deduction of Development Charges:
The appellant contended that the High Court erred in deducting development charges from the agreed price instead of adding them. The Supreme Court agreed that the development charges should not consume the entire basic price agreed upon by the vendor and purchaser. The Court found it reasonable to deduct only 50% of the land for roads and other amenities, rather than a higher percentage, and adjusted the compensation to reflect this.
5. Appropriate Market Value Determination:
The High Court had enhanced the compensation for the land to Rs. 12,000 per acre from the Tribunal's Rs. 6,000 per acre. The Supreme Court, considering the potential value and development aspects, further enhanced the compensation to Rs. 14,000 per acre. The Court maintained the 15% solatium and raised the interest rate to 9% on the enhanced compensation from the date of the judgment until payment. The appellant was also given the option to seek higher interest and solatium based on subsequent judgments.
Conclusion:
The Supreme Court allowed the appeal, enhancing the compensation for the land to Rs. 14,000 per acre, maintaining the solatium at 15%, and raising the interest rate to 9%. The Court emphasized the importance of considering the land's potential for future development and corrected the High Court's error in deducting development charges. No order as to costs was made.
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1989 (3) TMI 382
Issues Involved
1. Title and ownership of the Naroda chawl property.
2. Adverse possession claim by Defendant No. 6 (Chandrakanta).
3. Validity and impact of the oral gift and revenue entries.
4. Reliance on account books and other documentary evidence.
5. Collection and management of rent from the chawl.
6. Legal implications of symbolic versus actual possession.
7. Fiduciary relationship and its impact on adverse possession.
Detailed Analysis
1. Title and Ownership of the Naroda Chawl Property
The primary issue was the ownership of the Naroda chawl property, which was initially acquired by Bapalal in 1932 using ancestral joint funds. The High Court found that the property belonged to the joint family and was liable for partition. However, Defendant No. 6 contended that the property was gifted to her by Bapalal in 1946 and thus belonged exclusively to her.
2. Adverse Possession Claim by Defendant No. 6 (Chandrakanta)
Defendant No. 6 claimed that she had acquired the property through adverse possession since 1946. The trial court accepted this claim, noting her exclusive possession and management of the property from 1946 onwards. However, the High Court reversed this finding, stating that her adverse possession began only in 1952, which was insufficient to establish a prescriptive title by the time the suit was filed in 1960. The Supreme Court, however, reinstated the trial court's decision, affirming her adverse possession from 1946.
3. Validity and Impact of the Oral Gift and Revenue Entries
Defendant No. 6 relied on statements made by Bapalal to the Revenue authorities in 1946, which led to her name being mutated in the revenue records. The Supreme Court noted that while these entries indicated possession, they did not transfer title as no registered instrument was executed. The court emphasized that the presumption from the revenue entry was limited to possession, not ownership.
4. Reliance on Account Books and Other Documentary Evidence
The High Court relied on account books and income tax returns to support the claim that the property was part of the joint family assets. However, the Supreme Court found these documents unreliable. The account books were not supported by primary evidence, and crucial documents like counter-foil rent receipts and income tax returns for the period 1946-1952 were not produced. The Supreme Court rejected the account books as unreliable.
5. Collection and Management of Rent from the Chawl
The management of rent collection was a significant issue. Defendant No. 6 claimed that Defendant No. 1 managed the property on her behalf until 1952, after which she took direct control. The Supreme Court found that rent receipts issued during this period described the property as belonging to Chandrakanta, supporting her claim of adverse possession.
6. Legal Implications of Symbolic Versus Actual Possession
The court addressed the argument that symbolic possession by the family continued due to the tenants' physical possession. The Supreme Court clarified that the title to the chawl as owner-landlord, subject to tenancy, was an interest in immovable property. The tenants' attornment to Defendant No. 6 and payment of rent to her established her effective possession, sufficient for adverse possession.
7. Fiduciary Relationship and Its Impact on Adverse Possession
The court emphasized the fiduciary relationship between Defendant No. 1 and Defendant No. 6, noting that the possession of an agent is the possession of the principal. Defendant No. 1's management of the property on behalf of Defendant No. 6 could not be claimed as his own possession. The Supreme Court cited precedents to support this view, concluding that Defendant No. 6's adverse possession through her agent was valid.
Conclusion
The Supreme Court allowed the appeals, set aside the High Court's decision, and restored the trial court's judgment. It was held that Defendant No. 6 had been in exclusive adverse possession of the Naroda chawl from 1946 onwards, and the decrees for accounts against Defendants No. 6 and 7 were dismissed. The parties were directed to bear their own costs throughout.
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1989 (3) TMI 381
Issues Involved:
1. Promotion of Supervisors Grade 'A' to Chargeman II
2. Alleged Discrimination and Violation of Article 16
3. Compliance with Court Orders
4. Eligibility and Conditions for Promotion
5. Reliefs Sought by Petitioners
Summary:
1. Promotion of Supervisors Grade 'A' to Chargeman II:
The petitioners, appointed as Supervisors Grade 'A' between 1962 and 1966, sought the same relief granted by the Supreme Court in Civil Appeal No. 441 of 1981. They claimed that despite satisfactory service, they were not promoted to Chargeman II as per a circular dated 6th November 1962. The circular stated that Diploma holders should be promoted to Supervisor 'A' after one year and to Chargeman after two years of satisfactory service.
2. Alleged Discrimination and Violation of Article 16:
The petitioners argued that the non-promotion constituted discrimination under Article 16 of the Constitution. The Supreme Court, however, noted that the earlier promotions were made under exceptional circumstances due to the expansion following the Chinese aggression. The subsequent rules and circulars, including an order dated 28th December 1965 and a circular dated 20th January 1966, required promotions to be based on selection by Departmental Promotion Committees and not merely on the completion of two years of service.
3. Compliance with Court Orders:
The petitioners in Civil Miscellaneous Petitions No. 3325 of 1987 and No. 9357 of 1983 contended that the direction given by the Supreme Court on 2nd February 1981 had not been fully complied with. They sought interim orders to restrain further promotions and to initiate contempt proceedings. The Supreme Court, however, found that the respondents had complied with the order by giving backdated promotions to the petitioners.
4. Eligibility and Conditions for Promotion:
The Supreme Court emphasized that promotions had to be made in accordance with the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956. The Court held that executive instructions like the circular dated 6th November 1962 could not override these Rules. The subsequent circulars had the effect of aligning promotions with the Rules, thereby eliminating the accelerated promotion based on the earlier circular.
5. Reliefs Sought by Petitioners:
The petitioners sought directions for their promotion to higher posts with effect from the dates they were entitled to, and for all consequential benefits, including arrears. The Supreme Court noted that the petitioners had already been promoted in due course and that the delay in filing the writ petitions (after nearly 17 years) weakened their case. The Court dismissed the writ petitions but directed that the appellants in Civil Appeal No. 441 of 1981 be given the same benefits as granted by the Madhya Pradesh High Court, which included notional seniority and re-fixation of present salary without retrospective financial benefits.
Conclusion:
The Supreme Court dismissed the writ petitions but granted limited relief to the appellants in Civil Appeal No. 441 of 1981, ensuring they received the same benefits as those granted by the Madhya Pradesh High Court. The Court also declined to initiate contempt proceedings against the respondents.
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1989 (3) TMI 380
Issues Involved:
1. Validity of the meeting postponement by the Mayor.
2. Legality of the election of respondents as Mayor and Deputy Mayor.
3. Applicability of Section 21 of the Bombay General Clauses Act, 1904.
4. Precedential value of Chandrakant Khaire's case.
5. Bonafide exercise of the Mayor's power to cancel the meeting.
Issue-wise Detailed Analysis:
1. Validity of the meeting postponement by the Mayor:
The central issue revolves around whether the Mayor had the authority to postpone a duly convened meeting. The appellants argued that the Mayor, who has the power to convene a meeting, also holds the implied power to cancel or postpone it under Section 21 of the Bombay General Clauses Act, 1904. The Division Bench of the Gujarat High Court, however, held that "a properly convened meeting cannot be postponed" and that members are entitled to ignore the notice of postponement and hold the meeting if they form a quorum.
2. Legality of the election of respondents as Mayor and Deputy Mayor:
The respondents claimed to have been elected as Mayor and Deputy Mayor at a meeting held on June 1, 1988, which the appellants argued was invalid due to the postponement notice. The Division Bench of the Gujarat High Court upheld the election, pointing out that the quorum was met, thus making the meeting valid. The Single Judge had earlier dismissed the writ petition, stating that the postponement was within the Mayor's statutory powers.
3. Applicability of Section 21 of the Bombay General Clauses Act, 1904:
Section 21 of the Bombay General Clauses Act, 1904, which allows for the rescinding of orders, was a point of contention. The appellants argued that this provision gave the Mayor the implied power to cancel or postpone the meeting. The Supreme Court concurred with this view, stating that the Mayor's powers are statutory and derived from the Bombay Municipal Corporation Act, and thus, Section 21 applies.
4. Precedential value of Chandrakant Khaire's case:
The Division Bench felt bound by the observations in Chandrakant Khaire's case, which stated that "a properly convened meeting cannot be postponed." However, the Supreme Court clarified that these observations were not the ratio decidendi of the case and were based on different facts where a meeting had already commenced. The Court noted that the principles underlying Section 21 of the Bombay General Clauses Act were not considered in Chandrakant Khaire's case.
5. Bonafide exercise of the Mayor's power to cancel the meeting:
The Supreme Court emphasized that while the Mayor has the power to cancel a meeting, this power must be exercised bonafide and for a proper purpose within the scope of the Act. The case was remanded to the Gujarat High Court to determine whether the Mayor's actions were bonafide or for a collateral purpose. The Court requested an expedited resolution by April 30, 1989, and extended the interim order until May 5, 1989.
Conclusion:
The Supreme Court allowed the appeal to the extent of remanding the case to the Gujarat High Court for determination of whether the Mayor's cancellation of the meeting was bonafide. The Court emphasized that the Mayor's statutory power to convene a meeting includes the implied power to cancel or postpone it, provided it is exercised in good faith and for legitimate reasons. The appeal was allowed with no order as to costs.
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1989 (3) TMI 379
Issues Involved:
1. Whether the proceedings for fixation of ceiling area under Chapter III-B of the Rajasthan Tenancy Act, 1955, could be initiated and continued after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.
2. Whether the provisions of the old law are saved and survive to govern pending cases.
3. Whether there were any rights "accrued" or obligations "incurred" under the old law to support initiation or continuation of the proceedings after its repeal.
Summary:
Issue 1: Continuation of Proceedings Under Repealed Law
The principal controversy was whether proceedings for fixation of ceiling area with reference to the appointed date (1.4.1966) under Chapter III-B of the Rajasthan Tenancy Act, 1955, could be initiated and continued after the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973, came into force on 1.1.1973. The High Court dismissed the appeals, affirming that the repeal of Chapter III-B did not affect the rights accrued and liabilities incurred under the old law. The Supreme Court agreed with the High Court's view that the old law could be invoked for pending cases.
Issue 2: Survival of Old Law for Pending Cases
The appellants contended that the 1973 Act manifested an intention inconsistent with the continuance of the old law. However, the Supreme Court held that the scheme of the 1973 Act did not manifest an intention contrary to the saving of the repealed provisions of Section 5(6A) and Chapter III-B of the 1955 Act for pending cases. The Court noted that provisions like Section 15(2) and Section 40(1) of the 1973 Act indicated that pending cases were to be governed by the old law.
Issue 3: Accrued Rights and Incurred Liabilities
The appellants argued that no rights had "accrued" in favor of the State nor any liabilities "incurred" by the landholders under the old law. The Supreme Court referred to Section 30E of the 1955 Act, which established the ceiling area and obligations with reference to the notified date (1.4.1966). The Court concluded that the right of the State to take over excess land vested as on the appointed day and was not merely inchoate. The liability to surrender the excess land related back to the appointed day, and thus, the rights accrued and liabilities incurred under the old law were preserved.
Conclusion:
The Supreme Court dismissed the appeals, special leave petitions, and the writ petition, upholding the High Court's decision that the old law's provisions were saved for pending cases and that the rights accrued and liabilities incurred under the old law were not effaced. There was no order as to costs.
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1989 (3) TMI 378
Issues Involved:
1. Validity of the order of discharge from service.
2. Compliance with principles of natural justice.
3. Legality of the transfer order and respondent's refusal to comply.
4. Application of Service Regulation No. 113.
5. Presumption of service of registered letters.
Summary:
1. Validity of the order of discharge from service:
The Supreme Court addressed the appeal against the Gujarat High Court's judgment, which quashed the respondent's discharge from service and directed reinstatement. The respondent, a Deputy Engineer with the Gujarat State Electricity Board, was discharged for not complying with a transfer order. The Supreme Court found that the High Court erred in allowing the writ petition and granting relief to the respondent.
2. Compliance with principles of natural justice:
The High Court had quashed the discharge order on the grounds of violation of natural justice, as no opportunity was given to the respondent before discharging him. However, the Supreme Court noted that the respondent was warned and given an opportunity to explain his unauthorized absence, thus satisfying the requirements of natural justice.
3. Legality of the transfer order and respondent's refusal to comply:
The Supreme Court emphasized that transfer is an incident of service, and no government servant has a legal right to be posted at a particular place. The respondent's refusal to comply with the transfer order from Surat to Ukai, despite warnings, justified disciplinary action.
4. Application of Service Regulation No. 113:
Service Regulation No. 113 allows for summary discharge of an employee for continued unauthorized absence despite warnings. The Supreme Court found that the respondent's discharge was in accordance with this regulation, as he remained absent without sanctioned leave and ignored warnings.
5. Presumption of service of registered letters:
The Supreme Court held that there is a presumption of service for registered letters returned with a postal endorsement of refusal. The respondent failed to rebut this presumption. The Court concluded that the respondent was duly warned through the letter dated 18th April 1974, which met the requirements of Regulation No. 113.
Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's orders, and dismissed the respondent's petition. The respondent's discharge from service was upheld as valid. The Court also directed that the amount already paid to the respondent under interim orders should not be recovered, considering the hardship it would cause.
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1989 (3) TMI 377
Issues: Jurisdiction of Designated Court, Sufficiency of Evidence, Sentencing
Jurisdiction of Designated Court:
The appellant challenged the jurisdiction of the Designated Court to try him under the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) as he was charged under Section 25 of the Arms Act, not under Section 3 of TADA. The court clarified that under Section 6 and 9 of TADA, if a person contravenes any provision under the Arms Act in a notified area, the Designated Court has jurisdiction. The State had notified the area under TADA, making the offence triable by the Designated Court. The argument against the court's jurisdiction was deemed untenable, and the appellant's contention was dismissed.
Sufficiency of Evidence:
The prosecution case relied on police officers' testimony who apprehended the appellant with incriminating articles. The appellant denied the allegations, claiming a false case was orchestrated by a local MLA. The court noted the circumstances of the arrest in the early morning on a secluded road made independent witnesses unlikely. The defense's claim of police collusion with the MLA was considered implausible. The court found the prosecution's case proved beyond a reasonable doubt based on the evidence presented.
Sentencing:
The appellant's counsel requested leniency in sentencing due to the appellant's age and family responsibilities. The court, considering these factors, reduced the substantive sentence of rigorous imprisonment from two years to one year while confirming the fine of &8377; 500. The court held that justice would be served by reducing the sentence, taking into account the appellant's personal circumstances. The appeal was partly allowed, modifying the sentence accordingly.
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1989 (3) TMI 376
Issues Involved:
1. Payment of less salary to a senior than his junior in the same cadre.
2. Violation of the Principle of "equal pay for equal work" under Article 39(d) read with Articles 14 and 16 of the Constitution of India.
3. Justifiability of higher pay to juniors under Fundamental Rules.
4. Application of Rule 27 of the Fundamental Rules.
Issue-wise Detailed Analysis:
1. Payment of less salary to a senior than his junior in the same cadre:
The primary issue in these appeals is whether paying a senior less salary than a junior in the same cadre, having the same pay scale, violates the Principle of "equal pay for equal work" enshrined in Article 39(d) read with Articles 14 and 16 of the Constitution of India. Various cases were considered where juniors were drawing higher salaries due to specific circumstances, such as pay fixation under Fundamental Rules, selection grades, and other increments.
2. Violation of the Principle of "equal pay for equal work" under Article 39(d) read with Articles 14 and 16 of the Constitution of India:
The Supreme Court observed that the abstract doctrine of "equal pay for equal work" cannot be read into Article 14. Reasonable classification based on intelligible criteria having a nexus with the object sought to be achieved is permissible. The Court noted that "equal pay for equal work" does not mean all members of a cadre must receive the same pay irrespective of their seniority, source of recruitment, educational qualifications, and other incidents of service. The Court cited previous judgments to support the view that differentiation based on rational criteria does not amount to discrimination.
3. Justifiability of higher pay to juniors under Fundamental Rules:
In all the cases, the pay fixation of juniors was done under the Fundamental Rules, and there were justifiable reasons for fixing juniors at a higher pay than their seniors in the cadre. The pay fixation was in conformity with the Fundamental Rules, and the validity of these rules was not challenged. The Court held that the High Court and the Tribunal erred in concluding that whenever a junior is given higher pay, the doctrine of "equal pay for equal work" is violated. The Court emphasized that higher pay to juniors can be justified under various circumstances, such as pay protection, selection grades, and other legitimate incidents of service.
4. Application of Rule 27 of the Fundamental Rules:
The argument based on Rule 27, which permits the competent authority to grant a pre-mature increment to a government servant on a time-scale of pay, was not raised before the High Court/Tribunal. The Court found no material or justification to direct the appellant authorities to act under Rule 27. The respondents may approach the appropriate authorities for relief under Rule 27 if so advised.
Conclusion:
The Supreme Court allowed the appeals, setting aside the judgments of the Andhra Pradesh High Court and the Andhra Pradesh Tribunal. The writ petitions/applications of the respondents before the High Court/Tribunal were dismissed. The Court directed that the additional salary paid to the respondents as a result of High Court/Tribunal judgments up to 31-3-1989 shall not be recovered from them, considering it would be too harsh to refund the salary already paid. The appeals were allowed with no order as to costs.
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1989 (3) TMI 375
Issues Involved:
1. Appointment and award of the arbitrator.
2. Claim of penalty for non-lifting of paddy.
3. Cost of non-delivery of rice.
4. Jurisdiction and grounds for setting aside the arbitrator's award.
Issue-wise Detailed Analysis:
1. Appointment and Award of the Arbitrator:
The dispute arose from a contract dated 15th May, 1979, where the appellant was to provide paddy to the respondent for conversion into rice. The Subordinate Judge, First Class, appointed an arbitrator on 17th March, 1980, upon the respondent's application. The arbitrator gave his award on 22nd January, 1982, which did not fully favor the appellant. The respondent filed an application under section 14 of the Arbitration Act, 1948, to make the award the rule of the court. The appellant filed objections under sections 30 and 33 of the Act. The Subordinate Judge initially modified the award in favor of the appellant, but the Additional District Judge reversed this decision, which was upheld by the High Court.
2. Claim of Penalty for Non-Lifting of Paddy:
The arbitrator addressed a claim of Rs. 55,060.29 as a penalty for not lifting the balance of the paddy. The arbitrator justified the millers' (respondents) actions and noted that even if the millers were at fault, the appellant could not recover the penalty without showing actual losses. The arbitrator emphasized that no evidence of actual losses was provided by the appellant, thus dismissing the claim for penalty.
3. Cost of Non-Delivery of Rice:
The appellant claimed Rs. 3,23,856.08 for the cost of non-delivery of 137.39549 tonnes of rice. The arbitrator examined clause g(i) of the contract, which stipulated a penal rate of 1.5 times the economic cost for short-supplied rice. The arbitrator found no definition of "Economic Cost" in the contract or law, and based on the evidence, determined the maximum price should be Rs. 100 per quintal, excluding additional charges. Consequently, the arbitrator allowed Rs. 1,96,277.00 for the undelivered rice, noting that the rice quality was accepted under the Punjab Rice Procurement Price Control Order, 1968.
4. Jurisdiction and Grounds for Setting Aside the Arbitrator's Award:
The court emphasized that the jurisdiction to interfere with an arbitrator's award is limited to cases of misconduct or errors apparent on the face of the award. The arbitrator's decision must adhere to justice, equity, law, and fair play. The court found that the arbitrator's award was a plausible construction of clause g(i) of the contract and did not demonstrate any misconduct or error of law. The court reiterated that it cannot re-examine the merits of the award or sit in appeal over the arbitrator's decision. The learned Additional District Judge's correction of the Subordinate Judge's order was justified, and the High Court's decision to dismiss the revision was upheld.
Conclusion:
The appeal was dismissed, affirming the arbitrator's award and the decisions of the Additional District Judge and the High Court. The court underscored the limited grounds for setting aside an arbitrator's award and the importance of upholding arbitration as a mode of dispute resolution. No order as to costs was made.
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1989 (3) TMI 374
Issues Involved:
1. Validity of the arbitrator's authority.
2. Proper stamping of the award.
3. Registration of the award.
4. Admissibility and enforceability of the award.
Issue-wise Detailed Analysis:
1. Validity of the Arbitrator's Authority:
The appellant contended that he had informed the sole arbitrator through registered and telegraphic notice that he had no faith in the arbitrator and repudiated his authority to proceed with the arbitration proceedings. The learned Trial Judge held that the appellant failed to prove that he had repudiated the authority of the arbitrator before the award was announced. The objections were treated as objections under Section 33 of the Arbitration Act, 1940, and were filed within the limitation period. The learned Sub-Judge IInd Class, Panipat, dismissed the objections and made the award the rule of the court.
2. Proper Stamping of the Award:
The appellant raised the issue that the award was on unstamped paper and thus could not be made the rule of the court. The learned District Judge held that the award was not properly stamped and could not be made the rule of the court. However, the High Court noted that the necessary stamp was purchased on 8th August 1974 before the award was filed on 9th September 1974, and thus, the award could not be argued to be unstamped. The High Court held that the learned District Judge was in error in allowing the stamp objection to be taken.
3. Registration of the Award:
The appellant contended that the award was unregistered and thus could not be made the rule of the court as it affected immovable property of more than Rs. 100. The learned District Judge, after analyzing the provisions of Section 17 of the Registration Act, 1908, concluded that the award declared a right in immovable property and since it was unregistered, it could not be made the rule of the court. The High Court, however, held that the award did not create any right as such in immovable property; it only admitted the already existing rights between the parties and hence did not require registration. The Supreme Court examined the award and concluded that it did create, declare, or assign a right, title, and interest in the immovable property, and thus required registration. The award was not a mere declaration of existing rights but the creation of new rights, making registration compulsory under Section 17 of the Registration Act, 1908.
4. Admissibility and Enforceability of the Award:
The Supreme Court held that an unregistered award affecting immovable property of the value of more than Rs. 100 could not be looked into by the court for pronouncement upon the award on the application under Section 14 of the Arbitration Act unless the award is registered. Section 49 of the Registration Act enjoins that the award cannot be received as evidence of any transaction affecting immovable property unless it is registered. The subsequent registration of the award after the relevant time did not validate it retrospectively. The Supreme Court found that the High Court was in error in accepting the award and pronouncing judgment in terms of the unregistered award. The appeal was allowed, and the judgment and order of the High Court were set aside.
Conclusion:
The Supreme Court concluded that the award required registration as it created new rights in immovable property. The subsequent registration of the award did not validate it retrospectively, and thus, the High Court's decision to accept the award was incorrect. The appeal was allowed, and the judgment and order of the High Court were set aside, with each party bearing their own costs.
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1989 (3) TMI 373
Whether the dispute mentioned in the contractor's application could have been referred to arbitration at all?
Held that:- In the light as read from the facts, unable to accept the position that the claim raised by the plaintiff in this application before the High Court was not covered by the arbitration clause. The clause as read gave the respondent a right to be considered. The respondent's grievance was, if properly considered his performance being 300% achievement he was entitled in the facts and circumstances set out hereinbefore to the grant of the contract and further similarly placed persons had been so given. That right had not been duly considered. That is the dispute in the present case and that dispute is clearly referable to the arbitration clause as mentioned hereinbefore, therefore, unable to accept the position that the order of reference passed by the High Court is bad.
Rhe interim directions given by the High Court that the "contractor be allowed to do the remaining work of extraction of timber of standing marked trees in compartment No. 59, Marwah" was beyond the competence of the Court. In this respect we agree with High Court.
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1989 (3) TMI 372
Whether the High Court has ignored to note that the statutory obligation cast on the Rent Controller as per the proviso attached to Section 13(2)(i) of the Act requiring him to calculate and determine the quantum of arrears of rent even at the first instance has not been complied with?
Whether that the application for ejectment was not in accordance with the mandatory provisions of Rule 4(c), 5(1) and 6 of the Rules framed under the Act and as such the impugned judgment is liable to be set aside on both the grounds.
Held that:- After a careful scrutiny of the Section 13(2)(i) and the first proviso annexed thereto, no force in the submissions of the learned counsel that there is any statutory duty cast on the Rent Controller even in the first instance to determine and calculate the arrears of rent and the interest but on the contrary the proviso requires the tenant to pay or tender the actual arrears of rent within 15 days of the first hearing of the application for ejectment after due service alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller. What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application, if any. If the argument of the learned counsel is to be accepted then in every case the Rent Controller has to hold an enquiry at the first instance and determine the arrears of rent even on the first date of hearing which is in the nature of things not possible without any evidence, nor is it contemplated under the scheme of the Act.Hence we hold that this argument advanced on behalf of the appellant is misconceived and fallacious.
The rules 4(c), 5(1) and 6 are not mandatory but only directory. In that view, we see no force in the contention of the learned counsel that the non-mentioning of the amount of arrears of rent due in the application for ejectment has adversely affected the proceedings of this case and as such the application for ejectment is liable to be dismissed on that score. Appeal dismissed.
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1989 (3) TMI 371
The Kerala High Court allowed the Revenue's petition, holding that "kattimore" is a milk product taxable under entry No. 3 of the Kerala General Sales Tax Act, 1963. The Tribunal's decision was set aside. (Case: 1989 (3) TMI 371 - KERALA HIGH COURT)
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1989 (3) TMI 370
Whether Clause 11 of the agreement having provided that any dispute arising out of this sale shall be subject to Kaira jurisdiction formed part of. the agreement?
Held that:- Coming to clause 11 as already found that this clause was included in the general terms and conditions of sale and the order or confirmation No. 68/59 dated 2.10.1974 with the general terms and conditions was sent from Udyognagar, Mohmadabad, Gujarat to the respondent's address at 12 Suramangalam Road Salem, Tamilnadu. The statement made in the Special Leave Petition that Udyognagar, Mohamadabad, Gujarat is within the jurisdiction of the Civil Court of Kaira has not been controverted. As seen that making of the contract was a part of the cause of action and a suit on a contract therefore could be filed at the place where it was made. Thus Kaira court would even otherwise have had jurisdiction.
Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded. We accordingly find no error or infirmity in the impugned judgment of the High Court. Appeal dismissed.
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1989 (3) TMI 369
Issues:
Challenge to the validity of the West Bengal Taxation Laws (Amendment) Act, 1987; Issuance of eligibility certificate and declaration forms; Allegation of illegal withholding of declaration forms; Constitutional validity of the amendment affecting small-scale industrial units; Interpretation of sales tax laws and exemptions.
Analysis:
The writ petition involved a challenge to the West Bengal Taxation Laws (Amendment) Act, 1987 by a partnership firm engaged in the manufacture and sale of electrical appliances. The petitioners sought a writ of mandamus to direct the tax authorities to issue an eligibility certificate and declaration forms, alleging that the amendment adversely impacted small-scale industrial units. The petitioners contended that the amendment, specifically section 2(4)(B)(b)(ii), was ultra vires the Constitution as it withdrew exemptions previously granted to small-scale units during the tax holiday period. They argued that the amendment was unreasonable and against the principles of taxing statutes, leading to a deprivation of benefits for existing small-scale industries.
The State-respondents contested the petition, asserting that the petitioners were not entitled to claim exemption from turnover tax as per the provisions of the West Bengal Sales Tax Act, 1954. They highlighted the procedural delays by the petitioners in pursuing the eligibility certificate and contended that even if granted, it did not automatically entitle exemption from turnover tax. The State-respondents argued that the turnover tax was levied under section 4AAA of the Act and the petitioners were liable to pay it, irrespective of the eligibility certificate.
The Court considered various legal precedents and principles governing taxation laws, including the delegation of legislative power, the imposition of taxes, and the interpretation of exemption provisions. It referenced decisions from different jurisdictions to analyze the validity of tax amendments and the scope of exemptions under sales tax laws. Ultimately, the Court found the challenge to the 1987 amendment unfounded and upheld the validity of the amendment. However, it directed the tax authorities to consider the petitioners' representation for the eligibility certificate within two months, ensuring a fair hearing and a reasoned decision.
In conclusion, the Court disposed of the writ petition without costs, maintaining that while the petitioners were not exempt from sales and turnover tax, their request for an eligibility certificate deserved proper consideration in accordance with the law. The judgment emphasized the importance of due process and reasoned decision-making by the tax authorities in such matters.
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1989 (3) TMI 368
Issues Involved:
The issue involves the interpretation of rule 6(cc)(i) of the Tamil Nadu General Sales Tax Rules, 1959 regarding the deduction of package charges when oil is sold in sealed tin containers.
Summary:
1. The Division Bench referred the case to a Full Bench due to a disagreement on whether the cost of tins can be deducted from the total turnover as package charges under rule 6(cc)(i) of the Tamil Nadu General Sales Tax Rules, 1959.
2. The Sales Tax Appellate Tribunal accepted the assessee's plea that the cost of tins should be considered as packing charges under rule 6(cc)(i) and granted deduction for the price of the tins separately charged in the bills.
3. The State filed revisions against the Tribunal's decision, citing a previous judgment that held the total price of oil in sealed tins is taxable without deduction for the tin containers. The Division Bench found it difficult to agree with this proposition and referred the matter to a Full Bench.
4. The Full Bench analyzed rule 6(cc)(i) which allows for deduction of packing charges from the total turnover. The Court agreed with the State's argument that the sale is of "tin of oil" as a composite good, making the price of the tin of oil taxable without separate taxation for the oil content and tin.
5. Referring to a Supreme Court case, the Court emphasized that charges for packing are not deductible when they are integral to the sale price. The Court also cited a Karnataka High Court decision regarding freight and handling charges to support its conclusion that the price of the tin container is not deductible as packing charges.
6. The Court disagreed with the previous judgment that advocated separate taxation for the oil and tin, asserting that only the price of the oil in the tin should be taxed as the intention of the sale is for the oil, not the tin container.
7. Consequently, the Court set aside the Tribunal's order and reinstated the Appellate Assistant Commissioner's decision, disposing of the references with no costs awarded.
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1989 (3) TMI 367
The assessee challenged Sales Tax Tribunal's order on tax difference collection under section 4-B(6) of U.P. Sales Tax Act for 1975-76. Assessee purchased raw materials at concessional rate, sent manufactured goods outside State. Tribunal upheld tax difference collection. High Court found no error, dismissed revision with costs of Rs. 200. Stay order vacated.
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1989 (3) TMI 366
Issues:
Interpretation of the Central Sales Tax Act regarding the liability of an assessee acting as a guarantor and commission agent for payment of goods.
Analysis:
The case involved revisions under section 11 of the U.P. Sales Tax Act, where the assessee, a sole proprietorship concern, acted as a guarantor for payment of goods and received commission for services rendered. The Sales Tax Officer imposed Central sales tax on the assessee, considering all sales to be made by the assessee. The Assistant Commissioner and the Tribunal upheld the decision, concluding that the assessee was a "dealer" as defined under the Central Sales Tax Act and liable to pay tax under section 3(b). The Tribunal's decision was based on fresh materials placed by the assessee.
Upon appeal to the High Court, the counsel for the assessee argued that the assessee was merely a guarantor and commission agent, and no property passed to the assessee as the District Magistrate was the owner. The counsel referred to specific findings by the Tribunal regarding the role of the District Magistrate and the assessee as a commission agent. The counsel also cited relevant provisions of the Central Sales Tax Act, emphasizing the requirement of property transfer during inter-State trade for taxation.
The counsel relied on the Supreme Court decisions in Tata Iron and Steel Co. Ltd. v. Sarkar and State of Bombay v. Ratilal Vadilal & Bros., where similar scenarios were considered, and the Court ruled in favor of the commission agent. The High Court agreed with the counsel's arguments, stating that no tax could be imposed under section 3(b) of the Central Sales Tax Act as property did not transfer to the assessee during the movement of goods. Consequently, the High Court allowed the revisions, quashed the Tribunal's order, and directed the parties to bear their own costs. The High Court's decision was communicated to the Tribunal as required under section 11(8) of the Act.
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