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• 1994 (3) TMI 391
  
  Issues Involved:
  1. Maintainability of the Appeal
  2. Delay in Considering the Representation
  
  Issue-wise Detailed Analysis:
  
  1. Maintainability of the Appeal:
  The primary issue raised by the respondent was the maintainability of the appeal, arguing that the appeal arises from an order made in the exercise of criminal jurisdiction and therefore, no Letters Patent Appeal lies. The respondent cited a previous decision where it was held that such appeals are incompetent under Clause X of the Letters Patent, as Letters Patent Appeals lie only against judgments rendered in civil proceedings.
  
  The court, however, distinguished the nature of writ petitions filed under Article 226 of the Constitution of India. It was noted that such petitions, even if they seek a writ of Habeas Corpus, are not necessarily criminal in nature. The court referred to the Supreme Court decision in Umaji Keshao Meshram, which clarified that an intra-court appeal is maintainable if such a right is provided in the charter of the High Court. The court emphasized that Article 226 creates a constitutional jurisdiction, which is original and cannot be classified strictly as criminal jurisdiction. Consequently, the court overruled the preliminary objection raised by the respondent regarding the maintainability of the appeal.
  
  2. Delay in Considering the Representation:
  The petitioner contended that there was an unexplained delay in considering his representations, which violated his rights under Article 22(5) of the Constitution. The petitioner had sent multiple representations, and the delay in their consideration was not adequately explained by the respondents.
  
  The court examined the timeline of events:
  - The first representation dated 3/5/1993 was forwarded by the Jail Superintendent to the Cofeposa Unit on 10/5/1993.
  - Comments on this representation were called on 11/5/1993 but were furnished only on 20/5/1993.
  - The case was processed and submitted to the Joint Secretary on 31/5/1993, with a delay of 8 days after excluding holidays.
  
  The court noted that the total delay of 23 days remained unexplained. The respondents failed to file a counter-affidavit to the writ petition and did not provide satisfactory explanations for the delays in their reply affidavit. The court highlighted that the right to expeditious disposal of representations is a fundamental right under Article 22(5), and any unexplained delay violates this constitutional mandate.
  
  The court referred to several Supreme Court decisions, emphasizing that the requirement to consider representations expeditiously is a constitutional obligation. Delays due to negligence, callous inaction, or avoidable administrative reasons are not acceptable. The court concluded that the unexplained delay in the instant case rendered the continued detention of the petitioner illegal.
  
  Conclusion:
  The court allowed the Letters Patent Appeal, directing the immediate release of the petitioner unless he was required to be detained under any other order or proceedings. The judgment underscores the importance of timely consideration of representations in detention cases and reaffirms the constitutional safeguards provided under Article 22(5).

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• 1994 (3) TMI 390
  
  Issues:
  Challenge to detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act based on irrelevant documents and delay in disposal of representation.
  
  Analysis:
  1. The petitioner challenged the detention order passed under section 3(1) of the Act, contending that the detaining authority relied on irrelevant documents and there was an unexplained delay in disposing of the petitioner's representation.
  
  2. The detention order was issued on the grounds of preventing the petitioner from dealing in smuggled goods. The Customs officers seized gold biscuits from the premises of the petitioner's firm, alleging they were smuggled as no supporting documents were produced. The petitioner claimed the gold biscuits were legally purchased and accounted for, and the confessional statements were not voluntary.
  
  3. The detaining authority passed the impugned detention order on April 26, 1993, under section 3(1) of the Act, citing the necessity to prevent the petitioner from dealing in smuggled goods.
  
  4. During arguments, the petitioner's counsel challenged the detention order on two grounds: reliance on irrelevant documents and delay in disposing of the petitioner's representation. The counsel specifically focused on these two grounds during the proceedings.
  
  5. The petitioner's counsel argued that the detaining authority's reliance on irrelevant documents displayed non-application of mind, citing legal precedents like Ramesh v. State of Gujarat and others to support the contention.
  
  6. Legal principles emphasizing the importance of the detaining authority's real and rational satisfaction, based on relevant factors and not random divination, were highlighted through past judgments like Sadhu Roy v. The State of West Bengal and Smt. Shalini Soni v. Union of India & Others.
  
  7. The petitioner's counsel contended that certain documents relied upon by the detaining authority were irrelevant, including loose documents, summons, partner petitions, and a Panchnama. The relevance of each document was examined in detail during the proceedings.
  
  8. The court found that some documents, like loose sheets recovered from a partner, were indeed irrelevant as they pertained to personal business and not the firm's activities, supporting the petitioner's argument.
  
  9. The relevance of other documents, such as summons and partner petitions, was also analyzed, with the court determining the significance of each document based on its content and context.
  
  10. The court concluded that the detaining authority had considered some irrelevant documents, which undermined the proper application of mind required for issuing a detention order.
  
  11. While the delay in disposing of the petitioner's representation was also raised as a ground for challenge, the court granted relief solely based on the issue of reliance on irrelevant documents, finding the detention order to be illegal.
  
  12. As a result, the writ petition was allowed, and the petitioner was ordered to be set at liberty unless required in any other case, emphasizing the importance of proper application of mind in such legal proceedings.

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• 1994 (3) TMI 389
  
  The Delhi Electric Supply Undertaking appealed water cess assessment under the Water and Air (Prevention and Control of Pollution) Cess Act, 1977. The appellate authority upheld the assessment, stating that water consumption was measured by meters at the factory's entry. The High Court affirmed this decision. The Supreme Court dismissed the appeals, with no costs.

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• 1994 (3) TMI 388
  
  Issues:
  1. Dismissal of writ petition on grounds of belated filing.
  2. Communication of rejection orders on post-confirmation petition.
  3. Consideration of laches in writ petitions.
  4. Impact of ex parte orders on subsequent petitions.
  5. Jurisdictional challenge in the impugned order.
  
  Analysis:
  1. The Supreme Court dismissed a special leave petition challenging the Delhi High Court's order dismissing a writ petition on the grounds of being highly belated. The petitioner, a former army officer, was found guilty of irregularities in a court-martial in 1972 and was awarded dismissal and imprisonment. The final orders were communicated to him in September 1972, and subsequent petitions were filed over the years, including one in 1983, which led to the current writ petition.
  
  2. The petitioner claimed that he received the rejection orders on his post-confirmation petition only in 1983, while the government asserted that the rejection was communicated in 1973 to his advocate. The Court accepted the government's version, citing various instances where the petitioner did not contest the rejection earlier, leading to a finding of laches on the petitioner's part.
  
  3. The Court emphasized the importance of timely pursuit of legal remedies and highlighted that delay in seeking relief can impact the court's discretion in granting writ petitions. The petitioner's argument that no third-party rights were affected due to the delay was not considered sufficient to overlook the significant delay in seeking relief.
  
  4. The Court also addressed the impact of ex parte orders made in a previous petition, emphasizing that such orders do not override the need for timely pursuit of legal remedies. The petitioner's reliance on the ex parte order was deemed insufficient to justify the delay in seeking relief in subsequent petitions.
  
  5. Lastly, the petitioner's challenge regarding the jurisdiction of the impugned order was not substantiated, leading the Court to conclude that there was no merit in the special leave petition, which was consequently dismissed without any costs. The Court did not find it necessary to address the petitioner's arguments regarding the jurisdictional challenge in the impugned order.

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• 1994 (3) TMI 387
  
  Issues Involved:
  1. Validity and applicability of Office Memorandum No. F-19(4)-E.V./79.
  2. Alleged discrimination and arbitrariness under Article 14 of the Constitution.
  3. Cut-off date for pension benefits.
  4. Encashment of earned leave.
  5. Family pension scheme.
  
  Detailed Analysis:
  
  1. Validity and Applicability of Office Memorandum No. F-19(4)-E.V./79:
  The respondents, retired government servants, contested the validity of Office Memorandum No. F-19(4)-E.V./79, issued by the Government of India, which treated a portion of the dearness allowance as pay for retirement benefits for those who retired on or after 30-9-1977. They argued that these benefits should be extended to all retired government servants, regardless of their retirement date. The High Court allowed the writ application based on the judgment in D.S. Nakara v. Union of India, declaring the memorandum discriminatory. However, the Supreme Court noted that the memorandum introduced a scheme to treat a portion of the dearness allowance as pay for government servants who retired on or after 30-9-1977, with specific percentages of dearness pay fixed for different pay ranges for retirement benefits.
  
  2. Alleged Discrimination and Arbitrariness under Article 14 of the Constitution:
  The Supreme Court examined whether the memorandum was discriminatory and arbitrary, violating Article 14 of the Constitution. The Court emphasized that public service is bilateral, where a public servant is remunerated for services rendered, and pension is an integral part of employment. The Court recognized that the government revises pension rates and provides additional benefits over time, but it is not always feasible to extend these benefits to all retirees regardless of their retirement dates. The Court held that any revised scheme with a reasonable and rational cut-off date does not violate Article 14. The Court concluded that the concept of 'dearness pay' was evolved with different percentages for different pay ranges, and the option given to retirees to choose between two alternatives was not arbitrary.
  
  3. Cut-off Date for Pension Benefits:
  The Court addressed the issue of the cut-off date, 30-9-1977, for implementing the scheme. It noted that the cut-off date was linked to the price index level at 272, which fell on 30-9-1977, and was based on the Third Pay Commission's recommendation. The Court held that the cut-off date was not arbitrary and was necessary for implementing the scheme within the government's financial resources. The Court cited previous judgments, including D.R. Nim v. Union of India, Action Committee South Eastern Railway Pensioners v. Union of India, and Krishena Kumar v. Union of India, to support the validity of having a cut-off date for pension benefits.
  
  4. Encashment of Earned Leave:
  Regarding the grievance about encashment of earned leave up to a maximum of six months, the Court pointed out that it was a new facility allowed to serving government servants, and a date had to be fixed for its application. The respondents, who were not in service on the relevant date, could not claim this benefit.
  
  5. Family Pension Scheme:
  The Court addressed the family pension scheme, which was contributory until 22-9-1977 and then made non-contributory. The respondents, who were not in service on the said date, were not eligible for the non-contributory benefit, and there was no question of refunding the amount they contributed under the old scheme.
  
  Conclusion:
  The Supreme Court concluded that the High Court erred in applying the principle of D.S. Nakara to the present case. The Court held that the cut-off date of 30-9-1977 was not arbitrary, and the decision to merge a part of the dearness allowance with pay was based on rational considerations linked to the price index level. The appeal was allowed, and the High Court's judgment was set aside, with no order as to costs.

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• 1994 (3) TMI 386
  
  Issues:
  Conviction under Section 302 of the Penal Code based on High Court's judgment.
  
  Analysis:
  The appellant was acquitted by the trial court but convicted by the High Court for an offense under Section 302 of the Penal Code. The incident involved a scuffle at a cinema hall where the appellant, after a dispute over cycle stand charges, assaulted the victim with a knife, resulting in the victim's death. The High Court set aside the trial court's acquittal and sentenced the appellant to rigorous imprisonment for life based on the appeal filed by the State.
  
  The defense argued that the information given by the Head Constable over the telephone, which was treated as the first information report, did not mention the names of the accused, casting doubt on the identification of the appellant as the assailant by the informant. The defense contended that the cryptic nature of the telephonic message should not have been accepted as the first information report, as it did not provide specific details about the incident.
  
  The judgment discussed the legal requirements for a first information report (FIR) under Section 154 of the Code of Criminal Procedure. It distinguished between cryptic telephonic messages requesting police presence at the scene and detailed reports providing information about a cognizable offense. The court cited precedents to illustrate that not all telephonic messages constitute FIRs, especially when lacking essential details about the offense and the individuals involved.
  
  The court emphasized that the statement made by the informant to the Investigating Officer at the hospital, immediately after the incident, should be considered the first information report in this case. The informant identified the appellant as the assailant and provided details of the occurrence, which were consistent with his court testimony. The court rejected the notion that the telephonic message from the Head Constable served as the FIR, affirming the informant's identification of the appellant as the perpetrator.
  
  The court also highlighted corroborating evidence, including witness testimonies and the recovery of the knife used in the crime by the appellant during the investigation. The absence of any suggested motive for falsely implicating the appellant further strengthened the prosecution's case. Ultimately, the High Court's decision to convict the appellant based on the evidence presented was upheld, and the appeal was dismissed, ordering the appellant to serve the remaining sentence in custody.

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• 1994 (3) TMI 385
  
  Issues Involved:
  1. Retrospective appointment of a Consolidation Officer
  2. Compensation for land reserved in the scheme under the second proviso to Article 31A(1)
  3. Validity of the scheme prepared by an unappointed officer
  4. Interpretation of "acquisition" under Article 31A(1)
  
  Issue-Wise Detailed Analysis:
  
  1. Retrospective Appointment of a Consolidation Officer:
  The appellant argued that Gurkirpal Singh, who commenced consolidation proceedings and prepared the draft scheme, did not have legal authority to do so as he was not appointed as a Consolidation Officer at that time. The High Court acknowledged that there could be no retrospective appointment of a Consolidation Officer but dismissed the objection due to laches, as the appellant delayed in raising the issue. The Supreme Court agreed that a person must be appointed as a Consolidation Officer before exercising any functions and that retrospective appointment by the government cannot clothe him with authority retrospectively. However, the appeal could not succeed on these grounds due to the appellant's delay in raising the objection and lack of manifest injustice.
  
  2. Compensation for Land Reserved in the Scheme:
  The appellant contended that compensation must be paid for land reserved for various purposes under the scheme, as required by the second proviso to Article 31A(1). The High Court held that the second proviso was prospective and did not apply to the scheme, as the rights became vested once the scheme was sanctioned. The Supreme Court examined whether the reservation of land for common purposes amounted to "acquisition" within the meaning of the second proviso. It concluded that the scheme did not amount to acquisition by the State, as the title remained with the proprietary body, and the land was used for the common needs and benefits of the estate, managed by the Panchayat on behalf of the proprietors. Therefore, there was no acquisition within the second proviso, and the appellant was not entitled to compensation.
  
  3. Validity of the Scheme Prepared by an Unappointed Officer:
  The appellant argued that the scheme prepared by Gurkirpal Singh was invalid as he was not legally appointed at the time. The High Court rejected this contention on the grounds of laches and on merits, noting that Harcharan Singh, who had the power to appoint a Consolidation Officer, must have appointed Gurkirpal Singh before he began acting in that capacity. The Supreme Court agreed that there was a presumption of proper appointment under Section 114 of the Indian Evidence Act, and the objection could not be entertained due to the delay in raising it.
  
  4. Interpretation of "Acquisition" under Article 31A(1):
  The Supreme Court analyzed the meaning of "acquisition" in the context of Article 31A(1) and the second proviso. It noted that Article 31A(1)(a) mentions four categories: acquisition by the State of an estate, acquisition of rights in an estate, extinguishment of rights, and modification of rights. The Court distinguished between acquisition, where the State is the beneficiary, and modification or extinguishment, where the State is not the beneficiary. It concluded that the reservation of land for common purposes under the scheme did not amount to acquisition by the State, as the title remained with the proprietary body, and the land was used for the common benefit of the estate. Therefore, the second proviso to Article 31A(1) did not apply, and the appellant was not entitled to compensation.
  
  Separate Judgment by Hidayatullah, J.:
  Hidayatullah, J. concurred with the majority on the issue of retrospective appointment, noting that the objection could not be entertained due to laches. On the issue of compensation, he provided a detailed analysis of the relevant constitutional provisions and the legislative intent behind Articles 31 and 31A. He concluded that the reservation of land for common purposes under the scheme did not amount to acquisition by the State within the meaning of the second proviso to Article 31A(1), and the appellant was not entitled to compensation.
  
  Order:
  In accordance with the opinion of the majority, the appeal was dismissed without costs.

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• 1994 (3) TMI 384
  
  Issues Involved:
  1. Permissibility of reservations u/s 15(4) of the Constitution in postgraduate medical courses.
  2. Impact of reservations on societal advancement and merit.
  3. Whether admission to postgraduate medical courses constitutes a promotional post.
  4. Statutory regulations by the Indian Medical Council regarding reservations.
  
  Summary:
  
  Issue 1: Permissibility of Reservations u/s 15(4)
  The appellants contended that Article 15(4) does not permit reservation of seats in educational institutions. The Court rejected this argument, stating that the words "any special provision" in Article 15(4) are of wide amplitude and include reservation of seats in educational institutions. The Court referenced previous judgments, including M.R. Balaji v. State of Mysore and Indra Sawhney v. Union of India, to support the permissibility of reservations under Article 15(4).
  
  Issue 2: Impact of Reservations on Societal Advancement and Merit
  The appellants argued that reservations are detrimental to societal interests as they result in less competent doctors. The Court dismissed this assumption, referencing Indra Sawhney, which acknowledged that while reservations might imply selection of less meritorious persons initially, given an opportunity, members of backward classes can overcome initial disadvantages. The Court emphasized that reservations are provided only at the entry stage, and all candidates must meet the same proficiency standards to pass their examinations, thus addressing concerns about merit.
  
  Issue 3: Admission to Postgraduate Courses as Promotional Post
  The appellants argued that admission to postgraduate medical courses is akin to a promotional post and thus reservations should not be allowed. The Court found no substance in this argument, stating that admission to such courses cannot be equated to an appointment to a post or an appointment by promotion.
  
  Issue 4: Indian Medical Council Regulations
  The appellants and the Indian Medical Council contended that the regulations made by the Indian Medical Council prohibit reservations in postgraduate medical courses. The Court examined the Indian Medical Council Act and its provisions, concluding that the Act does not deal with or regulate admissions to graduate or postgraduate medical courses. The Court held that the regulations made by the Indian Medical Council are advisory and not binding, and cannot override the constitutional power under Article 15(4). The Court also noted that the 1992 recommendations by the Indian Medical Council had not been approved by the Central Government and thus could not govern admissions.
  
  Conclusion:
  The Court dismissed the appeals, upholding the provision for reservations in postgraduate medical courses as permissible under Article 15(4) and not in conflict with the Indian Medical Council regulations. The Court emphasized the need to harmonize constitutional provisions and statutory regulations, ensuring that reservations aim to achieve social justice without compromising educational standards.

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• 1994 (3) TMI 383
  
  Issues Involved:
  1. Vires of the Circular issued by the Commissioner of Commercial Tax, Patna.
  2. Applicability of the Bihar Entertainment Tax Act, 1948 to Cable T.V. Operators.
  3. Requirement of amendment in the Act to levy tax on Cable T.V. Operators.
  4. Constitutionality under Article 265 of the Constitution of India.
  
  Detailed Analysis:
  
  1. Vires of the Circular Issued by the Commissioner of Commercial Tax, Patna:
  The petitioners challenged the circular issued by the Commissioner of Commercial Tax, Patna, which directed the collection of entertainment tax from cable T.V. operators under the Bihar Entertainment Tax Act, 1948. The circular was based on the opinion of the Advocate General of Bihar. The petitioners argued that the circular was ultra vires as it did not consider whether the Act could be applied to cable operators.
  
  2. Applicability of the Bihar Entertainment Tax Act, 1948 to Cable T.V. Operators:
  The core issue was whether the Act contained provisions for imposing tax on the distribution of programs through dish antennas. The Act, which came into force on October 1, 1948, was enacted to impose tax on amusement and other entertainment in Bihar. The relevant definitions under Section 2 of the Act were considered, particularly "entertainment," which included any exhibition, performance, amusement, game, sport, or races to which persons are admitted for payment. The petitioners contended that their operations did not fall under this definition as there was no admission for payment.
  
  3. Requirement of Amendment in the Act to Levy Tax on Cable T.V. Operators:
  The petitioners asserted that the Act did not specifically cover cable T.V. operations, and thus, an amendment was necessary to bring cable operators within the Act's purview. The court examined Section 3, which provides for the imposition of entertainment tax, and noted that the definition of "entertainment" required persons to be admitted for payment, which did not apply to cable T.V. operators.
  
  4. Constitutionality under Article 265 of the Constitution of India:
  The court highlighted that under Article 265, no tax shall be levied or collected except by authority of law. The Supreme Court in various judgments, including State of Mysore v. Cowasji and Rayalaseema Construction v. Dy. Commercial Tax Officer, emphasized that taxation must be based on an Act of the Legislature and cannot be imposed through an executive order or circular without express statutory authority.
  
  Conclusion:
  The court held that the impugned circular was ultra vires the Bihar Entertainment Tax Act and Article 265 of the Constitution of India. The Act, as it stood, did not provide for the imposition of entertainment tax on cable T.V. operators without an amendment. Consequently, the show cause notices issued to the petitioners were quashed. The writ application was allowed, and the circular was declared void. There was no order as to costs.

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• 1994 (3) TMI 382
  
  Issues Involved:
  1. Validity of discontinuation of donor seats.
  2. Binding nature of the arrangement between the Government and the donor.
  3. Applicability of the Unnikrishnan judgment.
  4. Res judicata effect of the previous Gujarat High Court judgment.
  5. Requirement of natural justice in terminating the arrangement.
  6. Discrimination in filing appeals.
  
  Summary:
  
  1. Validity of discontinuation of donor seats:
  The Government of Gujarat's decision to discontinue the twelve donor seats in M.P. Shah Medical College was challenged by the respondent trust. The Supreme Court upheld the Government's decision, stating that the arrangement allowing the donor to nominate students was contrary to Articles 14 and 15 of the Constitution, as it was inconsistent with the principles established in the Unnikrishnan judgment, which mandated that all admissions in professional colleges, whether private or government, must be based on merit.
  
  2. Binding nature of the arrangement between the Government and the donor:
  The respondent trust argued that there was a binding contract between the Government and the donor established in 1954, which was upheld by the Gujarat High Court in a previous judgment (Nanavati case). However, the Supreme Court found that even if such a contract existed, it could not override constitutional principles. The arrangement was not a formal contract u/s 299 of the Constitution and was not legally enforceable.
  
  3. Applicability of the Unnikrishnan judgment:
  The Supreme Court clarified that the principles laid down in the Unnikrishnan judgment, which prohibited reservations for any community, group, or family in private professional colleges, were equally applicable to government colleges. Thus, the Government of Gujarat was justified in terminating the arrangement based on this judgment.
  
  4. Res judicata effect of the previous Gujarat High Court judgment:
  The respondent trust contended that the previous judgment of the Gujarat High Court in the Nanavati case operated as res judicata, preventing the Government from challenging the validity of the arrangement. The Supreme Court disagreed, stating that the previous judgment was not a judgment in rem but in personam, and did not create an estoppel against the Government from acting in accordance with constitutional principles.
  
  5. Requirement of natural justice in terminating the arrangement:
  The Supreme Court held that the termination of the arrangement by the Government was not a quasi-judicial act requiring the observance of natural justice principles. It was a matter governed by a contract, and the writ petition challenging it was not maintainable as it fell within the realm of private law.
  
  6. Discrimination in filing appeals:
  The respondent trust argued that the Government's decision to appeal only in the case of M.P. Shah Medical College and not in the case of the pharmacy college was discriminatory. The Supreme Court found no substance in this argument, explaining that the Government's decision was based on the significance of the number of seats involved and the distinction between the two cases.
  
  Conclusion:
  The Supreme Court allowed the appeals, setting aside the judgments of the Gujarat High Court, and upheld the Government of Gujarat's decision to discontinue the donor seats in M.P. Shah Medical College. No order as to costs was made, and no orders were issued on interlocutory applications.

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• 1994 (3) TMI 381
  
  Issues Involved:
  1. Whether it is permissible to withdraw the consent given by the State Government u/s 6 of the Delhi Special Police Establishment Act, 1946.
  2. The effect of such withdrawal of consent on matters pending investigation on the date of withdrawal.
  3. Legislative competence of Parliament to enact Sections 5 and 6 of the Act.
  4. Allegations of political motivation and delay in filing the writ petition.
  
  Summary:
  
  1. Permissibility of Withdrawal of Consent u/s 6 of the Act:
  The writ petition raised the question of whether the State Government can withdraw the consent given u/s 6 of the Delhi Special Police Establishment Act, 1946, which allows the Delhi Special Police Establishment (DSPE) to exercise powers and jurisdiction for investigating specified offenses in any area of the State. The petitioner contended that there is no provision in the Act empowering the State Government to withdraw the consent once given. The Court held that even if Section 21 of the General Clauses Act is applicable, an order revoking consent u/s 6 of the Act can only have prospective operation and would not affect matters where action had already been initiated.
  
  2. Effect of Withdrawal of Consent on Pending Investigations:
  The Court declared that the notification dated 7-1-1987, withdrawing the consent given by the Government of Sikkim, operates only prospectively. Therefore, the withdrawal does not apply to cases that were pending investigation on the date of issuance of the notification. The CBI was competent to complete the investigation in the cases registered against Respondent 4 and other persons and submit the report u/s 173 CrPC in the competent court.
  
  3. Legislative Competence of Parliament:
  The contention regarding the legislative competence of Parliament to enact Sections 5 and 6 of the Act was addressed by referencing the Constitution Bench decision in Advance Insurance Co. Ltd. v. Gurudasmal, which held that members of a police force belonging to a Union Territory can have their powers and jurisdiction extended to another State with the consent of that State's Government.
  
  4. Allegations of Political Motivation and Delay:
  The Court dismissed the argument that the writ petition was politically motivated, noting that the allegations of corruption against a person holding the high public office of Chief Minister warranted judicial determination. The Court also found that the delay in filing the writ petition was justified due to the Central Government's efforts to persuade the Government of Sikkim to restore consent, which ultimately failed, leading to the filing of the petition in 1993.
  
  Conclusion:
  The writ petition was allowed, and it was declared that the notification dated 7-1-1987, withdrawing the consent given by the Government of Sikkim, operates only prospectively and does not preclude the CBI from submitting the report in the competent court u/s 173 CrPC based on the investigation conducted in the specified cases. No order as to costs was made.

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• 1994 (3) TMI 380
  
  1. ISSUES PRESENTED and CONSIDERED

  The core legal questions considered by the Court in this judgment are:

  (a) Whether the President of India has unfettered powers to issue Proclamation under Article 356(1) of the Constitution, dismiss State Governments, and dissolve State Legislative Assemblies;

  (b) Whether a Proclamation issued under Article 356(1) is amenable to judicial review and, if so, what is the scope and extent of such review;

  (c) The meaning and ambit of the expression "a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution" as used in Article 356(1);

  (d) The constitutional nature of the Indian federal structure and the implications of Article 356 on Centre-State relations;

  (e) The role and duties of the Governor in reporting to the President under Article 356;

  (f) The constitutional concept of secularism in India and its relevance to the exercise of power under Article 356;

  (g) The effect of parliamentary approval or disapproval of a Proclamation under Article 356(3) and the consequences of judicial invalidation of such Proclamations;

  (h) The justiciability of the President's satisfaction under Article 356(1) and the impact of Article 74(2) on judicial scrutiny of ministerial advice;

  (i) The validity of specific Proclamations issued in respect of the States of Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Rajasthan, and Himachal Pradesh;

  (j) The extent to which political parties may incorporate religious or communal elements in their programmes and the constitutional consequences thereof.

  2. ISSUE-WISE DETAILED ANALYSIS

  (a) Nature and Scope of Presidential Power under Article 356(1)

  Article 356(1) empowers the President, on receipt of a report from the Governor or otherwise, to issue a Proclamation if satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. The President may assume all or any functions of the Government or Governor, declare that the State Legislature's powers shall be exercisable by Parliament, and make incidental provisions, excluding powers vested in High Courts.

  The Court held that this power is extraordinary and must be exercised sparingly, only when the constitutional machinery in a State has failed. The term "cannot be carried on" connotes a situation of constitutional breakdown or impasse, not mere maladministration or minor infractions. The power is a conditioned power, not absolute; the satisfaction of the President must be based on relevant material.

  The Court rejected the notion that the President can assume only some functions of the Government while leaving the State Government in office, emphasizing that two Governments cannot coexist in the same sphere. The power to dissolve the Legislative Assembly is implicit in Article 356(1)(a), but its exercise is subject to approval by both Houses of Parliament under Article 356(3). Dissolution prior to such approval is invalid.

  (b) Justiciability and Judicial Review of Proclamation under Article 356(1)

  The Court unanimously held that Proclamations under Article 356(1) are subject to judicial review, but the scope is limited. The President's satisfaction is subjective and political in nature, often involving imponderables and fast-changing situations lacking judicially manageable standards. Therefore, courts should exercise restraint and not substitute their judgment for that of the President or the Union Council of Ministers.

  Judicial review is available to examine whether:

  • There was any relevant material before the President;
  • The satisfaction was mala fide, based on extraneous or irrelevant grounds;
  • There was no satisfaction at all.

  The Court emphasized that the adequacy or correctness of the material cannot be questioned, only its relevance. The deletion of the finality clause (Article 356(5)) by the 44th Amendment reinforced the availability of judicial review.

  Article 74(2), which bars inquiry into the advice given by Ministers to the President, does not prevent courts from scrutinizing the material on which such advice was based. The material is distinct from the advice itself and may be subject to judicial examination, subject to claims of privilege under the Evidence Act.

  In cases where a strong prima facie case is made out, courts may issue discovery orders to compel production of material, to be examined in camera.

  Interim relief, such as injunctions restraining fresh elections, may be granted to prevent frustration of judicial review, but courts will not stay the issuance or operation of the Proclamation itself.

  (c) Federal Character of the Indian Constitution and Centre-State Relations

  The Court analyzed the Indian Constitution's federal structure, describing it as "quasi-federal" with a strong bias towards the Centre. Unlike the United States, Indian States are not sovereign entities; Parliament has power to alter State boundaries, create or abolish States, and amend the Constitution to curtail State powers.

  Executive and legislative powers are distributed, but the Union enjoys residuary powers and financial predominance. The Constitution envisages a single citizenship, an integrated judiciary, and a strong Centre to maintain national unity and integrity.

  Article 355 imposes a duty on the Union to protect States against external aggression and internal disturbance and to ensure constitutional governance. Article 356 is a mechanism to enforce this duty in case of failure of constitutional machinery.

  The Court emphasized that States are constitutional entities with independent existence and that the exercise of Article 356 power must preserve the federal balance and democratic principles.

  (d) Role and Duties of the Governor

  The Governor is a vital constitutional functionary and a link between the Union and the States. He is expected to act impartially and with constitutional responsibility, reporting to the President when the constitutional machinery in the State has failed.

  The Court held that the Governor's report forms the basis of the President's satisfaction under Article 356(1). The Governor must verify facts, explore possibilities of alternative governments, and recommend President's Rule only as a last resort. The practice of bypassing a floor test to determine majority support is improper and contrary to democratic principles.

  (e) Concept of Secularism under the Constitution

  Secularism is a basic feature of the Indian Constitution, though the word was explicitly added to the Preamble only by the 42nd Amendment. The Court traced the historical and philosophical foundations of secularism in India, emphasizing equal treatment of all religions by the State, freedom of conscience and religion, and the prohibition of State patronage of any particular religion.

  Secularism entails separation of religion from the secular activities of the State. The State maintains neutrality and ensures equality, liberty, and fraternity among all citizens regardless of religion. Political parties and Governments must abide by this constitutional mandate and not mix religion with politics.

  The Court held that acts or policies of a State Government that subvert or sabotage secularism can be grounds for invoking Article 356.

  (f) Effect of Parliamentary Approval or Disapproval of Proclamation

  Article 356(3) requires every Proclamation to be laid before both Houses of Parliament and ceases to operate after two months unless approved by resolutions of both Houses. The Court held that:

  • If Parliament disapproves or does not approve the Proclamation within two months, the Proclamation lapses and the status quo ante is restored, including revival of the dismissed Government and reactivation of the Legislative Assembly (if dissolved or suspended).
  • If Parliament approves the Proclamation, the dismissal and dissolution are valid and final, and the Government and Assembly do not revive after the Proclamation's expiry or revocation.

  The Court rejected the view that the Assembly and Government do not revive even if Parliament disapproves the Proclamation, holding that such a view would render the parliamentary check ineffective and violate parliamentary supremacy.

  (g) Validity of Specific Proclamations

  Karnataka: The Governor's report was based on letters from legislators withdrawing support, some of which were later retracted. The Governor did not verify these retractions or permit a floor test. The Court held the Governor's report and the consequent Proclamation mala fide and unconstitutional, as it bypassed the constitutional forum of the Assembly for testing majority.

  Meghalaya: The Governor ignored Supreme Court orders and the votes of certain MLAs, allowed the Speaker to act contrary to the Court's directions, and recommended dismissal. The Proclamation was held prima facie invalid and mala fide, but no relief was granted as fresh elections had been held.

  Nagaland: The Governor's report was based on allegations of a party split and political machinations without allowing the claimant to prove majority on the floor. The Proclamation was held unconstitutional for failure to allow floor test and for being based on unverified and partisan material.

  Madhya Pradesh, Rajasthan, Himachal Pradesh: Following the demolition of the Babri Masjid, the BJP Governments in these States were dismissed and Assemblies dissolved. The Governors' reports indicated law and order breakdown, political leadership's support to banned organizations, and failure to implement bans. The Court held these Proclamations valid, as the material before the President was relevant and the situation was extraordinary, involving breach of secularism, a basic feature of the Constitution.

  (h) Role of Political Parties and Religion in Politics

  The Court emphasized that political parties must bear true faith and allegiance to the Constitution, including its basic features of secularism and democracy. Mixing religion with politics or espousing religious or communal platforms violates constitutional mandates and renders parties and Governments amenable to action under Article 356.

  Manifestos or actions that subvert secularism, promote communal disharmony, or incite violence are unconstitutional. The Court held that the BJP's election manifestos and conduct, including the campaign for construction of Ram Temple and the events leading to the Babri Masjid demolition, constituted a breach of secularism justifying the dismissal of the Governments in Madhya Pradesh, Rajasthan, and Himachal Pradesh.

  3. SIGNIFICANT HOLDINGS

  "The validity of the Proclamation issued by the President under Article 356(1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power."

  "Article 74(2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction."

  "Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a), (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation."

  "If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante to the issuance of the Proclamation and hence to restore the Legislative Assembly and the Ministry."

  "Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution."

  "The satisfaction reached by the President for issuing the Proclamation under Article 356 must be tested only on those grounds of unconstitutionality, but not on the grounds that the material which enabled him to reach the satisfaction was not sufficient or inadequate."

  "The President shall exercise the power to dissolve the Legislative Assembly only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly."

  "The Governor should normally leave the test of confidence in the Ministry to a vote in the Assembly and should not decide the question himself except in extraordinary situations where a free vote is not possible."

  "The power under Article 356 is not an absolute power to be exercised at the President's whim but a conditioned power based on relevant material and satisfaction formed in good faith."

  "The political party or organisation which mixes religion with politics or espouses unsecular policies violates the basic features of the Constitution and is amenable to action under Article 356."

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• 1994 (3) TMI 379
  
  Issues Involved:
  1. Legislative Competence
  2. Definition of "Abet"
  3. Power to Declare "Terrorist Affected Area"
  4. Validity of Sections 3 and 4 of the 1987 Act
  5. Section 5 of the 1987 Act
  6. Sections 8, 9, 10, and 11 of the 1987 Act
  7. Section 15 of the 1987 Act
  8. Section 19 of the 1987 Act
  9. Section 20 of the 1987 Act
  10. Jurisdiction of High Courts under Article 226
  
  Summary:
  
  1. Legislative Competence:
  The Parliament has the legislative competence to enact The Terrorist Affected Areas (Special Courts) Act, 1984, The Terrorist and Disruptive Activities (Prevention) Act, 1985, and The Terrorist and Disruptive Activities (Prevention) Act, 1987, under Entry 1 of List III of the Seventh Schedule.
  
  2. Definition of "Abet":
  The definition of "abet" in Section 2(1)(i)(a) of the 1987 Act is vague and imprecise. To avoid ambiguity, "actual knowledge or reason to believe" should be read into the provision.
  
  3. Power to Declare "Terrorist Affected Area":
  The power vested in the Central Government under Section 3(1) of the 1984 Act to declare any area as a "terrorist affected area" does not suffer from any invalidity.
  
  4. Validity of Sections 3 and 4 of the 1987 Act:
  Sections 3 and 4 of the 1987 Act, which define and penalize terrorist and disruptive activities, are not liable to be struck down for vagueness. These sections cover acts that constitute offenses under ordinary laws but are distinguishable due to their aggravated nature.
  
  5. Section 5 of the 1987 Act:
  Section 5, which criminalizes the possession of unauthorized arms in specified areas, should be invoked only if there is material to show that the arms were intended to be used for terrorist or disruptive activities or were actually used as such.
  
  6. Sections 8, 9, 10, and 11 of the 1987 Act:
  - Section 8, dealing with the forfeiture of property, is not violative of Articles 14 and 21 of the Constitution.
  - Section 9, regarding the constitution of Designated Courts, is valid. However, no one should be appointed as a Designated Court judge who has retired from service.
  - Section 10 and Section 11 are upheld with the suggestion that the Central and State Governments should ensure that judges of Designated Courts have sufficient tenure of service.
  
  7. Section 15 of the 1987 Act:
  Section 15, which allows confessions made to police officers to be admissible, is violative of Articles 20(3) and 21 of the Constitution and is liable to be struck down. The social environment was not mature for such a drastic change, and it is destructive of basic values of the constitutional guarantee.
  
  8. Section 19 of the 1987 Act:
  The existing appeal provisions under Section 19 are not constitutionally invalid. However, it is suggested that a proviso be added to allow appeals to the High Court for convictions under sections other than Sections 3 and 4, with automatic transfer to the Supreme Court if the State files an appeal against acquittal under Sections 3 and 4.
  
  9. Section 20 of the 1987 Act:
  - Sub-sections (3) and (4)(a) do not suffer from any infirmity.
  - Sub-section (8) imposes a ban on bail unless specific conditions are met. The High Courts have jurisdiction under Article 226 to entertain petitions in exceptional cases.
  
  10. Jurisdiction of High Courts under Article 226:
  High Courts have the jurisdiction to entertain petitions under Article 226 in exceptional cases, such as when proceedings under TADA are an abuse of process or taken for extraneous considerations. However, this power should be exercised sparingly and only in rare and appropriate cases.

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• 1994 (3) TMI 378
  
  The judgment clarifies the conditions for confidential treatment of documents in court cases. Regulation No. 17 protects written communications between independent lawyers and clients in administrative procedures before the Commission. The protection also extends to internal notes reporting the content of such communications. Requests to limit document access for interveners are rejected due to lack of procedural rules.

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• 1994 (3) TMI 377
  

  Whether the respondent-dealer has discharged that burden of proving that he has not collected the tax was, however, placed upon the dealer, by the said Amendment Act?

  Held that:- It is faintly urged before us by the learned counsel for the respondent-dealer that he was not given a due opportunity to establish that he did not collect the tax and, therefore, the matter must be remanded to afford him such an opportunity. It is, however, not brought to our notice that any such grievance was made at any stage of the proceedings. In the circumstances, no such opportunity is called for.

  The appeal is allowed and the orders of the High Court and the Tribunal are set aside(except with respect to the turnover relating to groundnut oilcake) and the order of the Deputy Commissioner of Commercial Taxes (Appeals) Bangalore dated 20-8-1970 confirming the order of the Assistant Commissioner of Commercial Taxes (Assessment) Bangalore dated 22-1-1970 (against subject to the rider that the turnover relating to ground nut oilcake shall be exempt from tax) is restored. No order as to costs.

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• 1994 (3) TMI 376
  
  Issues Involved:
  1. Inclusion of excise duty in taxable turnover.
  2. Interpretation of "turnover" and "sale price" under U.P. Sales Tax Act and Central Sales Tax Act.
  3. Applicability of precedents from Andhra Pradesh High Court and Supreme Court.
  
  Issue-Wise Detailed Analysis:
  
  1. Inclusion of Excise Duty in Taxable Turnover
  The primary issue was whether the excise duty initially paid by the manufacturer but subsequently refundable by the Government, which is included in the bill sent to the purchaser, should be included in the taxable turnover even though the purchaser has neither paid nor is liable to pay this excise duty under the contract.
  
  The court referred to the Andhra Pradesh High Court's decision in State of A.P. v. Ranka Cables Pvt. Ltd. [1990] 78 STC 111, which held that excise duty neither paid nor payable by the buyer cannot be included in the taxable turnover of the assessee. The court agreed with this decision, emphasizing that the excise duty did not form part of the price of the goods supplied by the assessee to the purchaser and that the purchaser was under no liability to pay this amount.
  
  2. Interpretation of "Turnover" and "Sale Price" under U.P. Sales Tax Act and Central Sales Tax Act
  The court examined relevant provisions of both the U.P. Sales Tax Act and the Central Sales Tax Act to determine what constitutes taxable turnover. Under section 3 of the U.P. Sales Tax Act, sales tax is payable on the turnover of sales or purchases. The definitions of "purchase price," "turnover," and "turnover of purchases" were analyzed to emphasize that the taxable amount is the consideration paid or payable by the purchaser for the goods.
  
  Similarly, under the Central Sales Tax Act, the definitions of "sale," "sale price," and "turnover" were scrutinized. The court noted that the emphasis in both Acts is on the amount paid or payable by the purchaser. Therefore, if the price of goods is reduced by the excise duty refundable to the manufacturer, the reduced amount is the taxable turnover.
  
  3. Applicability of Precedents from Andhra Pradesh High Court and Supreme Court
  The court relied on several precedents to support its decision. In Ranka Cables Pvt. Ltd. [1990] 78 STC 111, the Andhra Pradesh High Court had ruled that excise duty refundable to the manufacturer should not be included in the taxable turnover. The court also cited Sakthi Engineering Co. v. State of Andhra Pradesh [1993] 91 STC 59 and Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh [1969] 24 STC 487, which supported the exclusion of non-payable excise duty from taxable turnover.
  
  The court distinguished the present case from McDowell & Company Limited v. Commercial Tax Officer [1985] 59 STC 277 (SC); 1985 UPTC 747 (SC), where excise duty paid by the purchaser on behalf of the manufacturer was included in the turnover. In the present case, the excise duty was reimbursed by the Central Government and not paid by the purchaser.
  
  The court also reviewed Hindustan Sugar Mills Ltd. v. State of Rajasthan [1979] 43 STC 13 and Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1993] 88 STC 151; AIR 1993 SC 123, which dealt with the inclusion of freight charges in the taxable turnover. These cases were found not applicable because, in the present case, the excise duty was not payable by the purchaser.
  
  Conclusion
  The court concluded that the sales tax authorities had committed an error by including the excise duty in the taxable turnover of the assessee. The revision applications were allowed, and the orders under challenge were set aside. The return filed by the assessee, showing his taxable turnover exclusive of the excise duty, was to be accepted, and sales tax was to be assessed accordingly. The applicants were also entitled to costs from the respondents.
  
  Petition allowed.

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• 1994 (3) TMI 375
  
  Issues Involved:
  1. Challenge to the increase of sales tax to 40% under section 7(14) of the KGST Act.
  2. Request for instalment facility for payment of the compounded tax amount.
  
  Issue-wise Detailed Analysis:
  
  1. Challenge to the Increase of Sales Tax to 40% under Section 7(14) of the KGST Act:
  The petitioners, nine abkari contractors, initially challenged the amendment to section 7(14) of the Kerala General Sales Tax Act, 1963 (KGST Act), which increased the sales tax on arrack from 20% to 40% of the total rental amount payable under the Abkari Act for the licence year 1993-94. However, during the admission of the writ petition, counsel for the petitioners stated that they were not pressing this challenge. Thus, the challenge to the amended provisions of sub-clause (14) of section 7 of the KGST Act as illegal, unconstitutional, and void was withdrawn unconditionally.
  
  2. Request for Instalment Facility for Payment of the Compounded Tax Amount:
  The primary relief sought by the petitioners was to be allowed to pay the balance amount of tax due at the compounded rate in instalments. The petitioners argued that this Court, exercising jurisdiction under Article 226 of the Constitution, should grant the benefit of payment in easy instalments. The respondents, represented by the Special Government Pleader for Taxes, opposed this motion.
  
  The Court examined the history of similar litigations, noting that previous requests for stay on the operation of the amendment were consistently rejected. The Court referenced earlier interlocutory orders and a Division Bench's decision which had granted temporary instalment benefits but later vacated the same upon review, deeming the writ appeals not maintainable.
  
  The Court emphasized that, under section 7(15) of the KGST Act, the compounded tax amount is to be paid in monthly instalments. Non-payment on due dates incurs penal interest and recovery proceedings as per section 23(3). The Court held that it cannot issue directions contrary to statutory provisions, as the petitioners have no legal right to insist on instalment payments beyond what is prescribed by the statute.
  
  The petitioners' reliance on the Division Bench's earlier decision was deemed misplaced, as the Division Bench did not intend to lay down any binding principle of law applicable universally. The Court noted that the State, as the creditor, should decide what is in its best interest, and the petitioners cannot claim instalment benefits as a matter of right.
  
  The Court cited previous judgments, including Haridas v. Assistant Commissioner, Sales Tax, and Sreekumar v. State of Kerala, which established that there is no provision in the KGST Act allowing even the Government to permit instalment payments of tax due.
  
  Conclusively, the Court declined the petitioners' request for instalment facility, emphasizing the necessity of adhering to statutory mandates and the absence of any extraordinary circumstances warranting such relief under Article 226. The petition was dismissed, and the challenge to the amendment was recorded as not pressed.
  
  Conclusion:
  The writ petition was dismissed, and the Court declined to grant the instalment facility for the payment of the compounded tax amount. The challenge to the amendment increasing the sales tax to 40% was not pressed by the petitioners and thus not considered by the Court.

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• 1994 (3) TMI 374
  
  The petitioner challenged assessments under KGST Act and CST Act. Stay granted on condition to pay 60% of demand for KGST Act assessments. CST Act assessments stay granted as "C" forms received. Orders P10 and P11 quashed. Appeals to be disposed within 3 months. Recovery of balance amounts kept in abeyance upon payment of Rs. 40,000.

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• 1994 (3) TMI 373
  
  The State Government challenged a Sales Tax Appellate Tribunal order regarding the validity of form XXI-A under rule 22-B(5) of the Tamil Nadu General Sales Tax Rules, 1959. The Tribunal held that the form is valid if entries relate to the relevant month, even if it contains transactions for more than one month. The High Court rejected the State's contention that the entire form should be invalidated for including transactions beyond one month, stating that the form can be treated as valid for the relevant month's transactions. The petition was dismissed.

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• 1994 (3) TMI 372
  
  The High Court of Kerala quashed the orders of assessment on galvanised tubes under the Kerala General Sales Tax Act, citing a Supreme Court decision that galvanised tubes are not subject to tax under the Act. The court directed the tax authority to pass fresh orders in accordance with the law within two months. The original petition was allowed.

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