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2008 (4) TMI 816
Issues Involved: Application for leave to file appeal against the acquittal of the respondent No. 1 accused u/s 138 of Negotiable Instruments Act, 1881.
Summary:
Issue 1: Absence of documentary evidence to substantiate the advance of loan
The complainant alleged that she advanced a loan to the accused for repairs, but failed to provide any documentary evidence or receipt. The complainant's claim was not reflected in her income tax returns, raising doubts about the veracity of the transaction. The court referred to a previous case where a similar lack of evidence led to an acquittal, emphasizing the importance of documentary proof in such cases.
Issue 2: Circumstances surrounding the delivery of the cheque
The complainant admitted that the cheque was not directly delivered by the accused but by another individual. There was no clear explanation regarding how the cheque came into the possession of this individual or the complainant. The accused claimed that the cheque was part payment for a motorcycle, supported by the purpose of the account from which the cheque was drawn. The court noted the absence of evidence regarding the circumstances of the cheque delivery and the purpose of the account, leading to the reasonable view taken by the Magistrate in acquitting the accused.
In conclusion, the application for leave to appeal was rejected based on the lack of documentary evidence supporting the loan transaction and the reasonable view taken by the Magistrate regarding the circumstances of the cheque delivery and the purpose of the account.
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2008 (4) TMI 815
Issues Involved:
1. Legality of the termination order and the appellate authority's order.
2. Jurisdiction of the Civil Court to entertain and try the suit.
Summary:
Issue 1: Legality of the Termination Order and the Appellate Authority's Order
- The respondent, a bus driver employed by the appellant (a statutory corporation), was dismissed from service following a disciplinary proceeding initiated on 6.11.1982. The Enquiry Officer found him guilty, and the disciplinary authority ordered his dismissal on 31.5.1985, with no entitlement to further wages except subsistence allowance.
- The respondent's appeal was dismissed by the Appellate Authority on 16.6.1987.
- The respondent filed a civil suit challenging the termination and appellate orders. The Trial Court found the orders illegal, bad in law, and against the principles of natural justice due to:
- Non-supply of documents mentioned in the charge-sheet.
- Denial of the opportunity to cross-examine witnesses.
- The Enquiry Officer acting like a prosecutor.
- The suit was decreed, declaring the termination and appellate orders void, and the respondent was entitled to continuous service and monetary benefits.
Issue 2: Jurisdiction of the Civil Court
- The appellant contended that the Civil Court had no jurisdiction to entertain the suit, citing conflicts between Supreme Court decisions in *Rajasthan State Roadways Transport Corporation v. Krishna Kant* and *Rajasthan SRTC v. Khadarmal*.
- Section 9 of the Code of Civil Procedure states that Civil Courts have jurisdiction unless expressly or impliedly barred. The Industrial Disputes Act, 1947 does not expressly bar Civil Court jurisdiction.
- Civil Courts have limited jurisdiction in service matters but can entertain suits where the plaintiff claims a fundamental right under Article 14 of the Constitution or mandatory statutory provisions.
- The Supreme Court reiterated that Civil Courts have jurisdiction unless a right is claimed exclusively under the Industrial Disputes Act or its sister enactments.
- The Court emphasized that statutory interpretation should not readily exclude Civil Court jurisdiction and that the burden of proof lies on the party claiming exclusion.
- The Court referenced previous decisions, including *Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke*, which outlined principles for Civil Court jurisdiction in industrial disputes.
- The Court concluded that if a right is claimed under common law or statutes other than the Industrial Disputes Act, Civil Courts have jurisdiction. If claimed under the Industrial Disputes Act, the jurisdiction is barred.
- The appellant, being a 'State' under Article 12 of the Constitution, must comply with Article 14 and other constitutional provisions, as well as statutory regulations and principles of natural justice.
Conclusion:
- The Supreme Court dismissed the appeal, affirming the Civil Court's jurisdiction and the illegality of the termination and appellate orders. The respondent was entitled to reinstatement and back wages. No costs were awarded as the respondent did not appear.
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2008 (4) TMI 814
Order of acquittal passed on non-appearance or death of the complainant - Power of Jurisdiction of magistrate U/s 256 of CrPC - HELD THAT:- The provisions of Section 256(1) mandate the Magistrate to acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate.
He had to remain present in court. He attended the court on not less than 20 occasions after the death of the original complainant. If in the aforementioned situation, the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion, should not have been ordinarily interfered with.
The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with.
There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The orders passed by the competent court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind.
The High Court, in our opinion, therefore, misdirected itself in passing the impugned judgment.
It can therefore not be sustained. We set aside the order of the High Court accordingly. The Appeal is allowed.
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2008 (4) TMI 813
Issues involved:
Dispute over a registered Will dated 5th August, 1972, alleged fraud in procuring the Will, possession of disputed property, undervaluation of suit, right of testator to execute the Will, ownership of disputed property, and relief entitled to the plaintiff.
Details of the judgment:
1. The suit involved a dispute regarding a registered Will dated 5th August, 1972, executed by Brijlal in favor of the appellants, which was contested by the respondent alleging fraud in its procurement. The Trial Court dismissed the suit, holding it barred by limitation under Article 59 of the Limitation Act, 1963, due to failure to prove lack of knowledge of the Will within three years.
2. The plaintiff appealed the Trial Court's decision, and the Civil Judge, Aligarh, reversed the judgment without addressing the limitation issue. The defendants then filed a second appeal before the Allahabad High Court, which affirmed the decision without considering the limitation aspect.
3. The main contention in the appeal before the Supreme Court was that the lower courts erred in not addressing the limitation issue, which was crucial as the Trial Court had found the suit barred by limitation. The respondent argued that the limitation plea was not raised in the appellate courts and could not be considered at this stage.
4. The Supreme Court held that the Trial Court's finding on limitation, though not specifically framed as an issue, was crucial as per Section 3(1) of the Limitation Act, which mandates dismissal of suits filed after the prescribed period. The failure of the appellate courts to address this issue rendered their decisions ineffective, as the suit remained barred by limitation.
5. Referring to previous judgments, the Court emphasized that questions of limitation go to the root of a court's jurisdiction and cannot be overlooked. Therefore, the Supreme Court set aside the High Court's decision and remanded the suit to the First Appellate Court to determine whether the suit was indeed barred by limitation. If found time-barred, the appeal would be dismissed; otherwise, the decision on other issues would stand.
6. The appeal was allowed, with no order as to costs, emphasizing the importance of addressing the issue of limitation in legal proceedings to ensure the validity of the court's jurisdiction and decisions.
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2008 (4) TMI 812
Issues Involved:
1. Exemption u/s 54 of the Income Tax Act for multiple dwelling houses.
2. Annulment of assessment proceedings due to procedural irregularities.
3. Validity of notice u/s 148 of the Income Tax Act.
Summary:
Issue 1: Exemption u/s 54 of the Income Tax Act for multiple dwelling houses
The Tribunal held that no finding need be recorded regarding the exemption claimed by the assessee u/s 54 of the Act for four dwelling houses, based on its previous finding in ITA No. 59/B/1999. The Assessing Officer had granted exemption only for one dwelling unit, considering each flat as an individual dwelling unit, and brought the balance amount to tax under capital gains.
Issue 2: Annulment of assessment proceedings due to procedural irregularities
The Tribunal concluded that the entire assessment proceeding should be treated as annulled. The Appellate Commissioner had noticed irregularities in the assessment and correctly remanded the matter for fresh assessment. However, the Tribunal found that the assumption of jurisdiction by the Assessing Officer was defective and the notice u/s 147/148 of the Act was fraught with defects and infirmities, leading to the annulment of all proceedings.
Issue 3: Validity of notice u/s 148 of the Income Tax Act
The notice issued u/s 148 was critically examined and found to be incomplete and lacking necessary information, rendering it invalid. The Tribunal held that the material facts required to be mentioned in the notice were missing, and the assessee was left to imagine the details. The Tribunal referenced the Kerala High Court judgment, which emphasized that the issue and service of a notice u/s 148 is a condition precedent for jurisdiction. The Supreme Court also held that the jurisdiction to reopen an assessment depends on the issuance of a valid notice, and an invalid notice renders the entire proceedings void.
Conclusion:
The High Court upheld the Tribunal's findings, stating that the invalid notice u/s 148 led to the annulment of all subsequent proceedings. The questions of law were answered in favor of the assessee and against the Revenue. The appeals were disposed of accordingly.
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2008 (4) TMI 811
Issues Involved:
1. Authority of the third respondent as a director.
2. Validity of the sale deeds executed by the third respondent.
3. Legality of Form No. 32 filed by the respondents.
4. Scheme for vesting properties in an administrator.
5. Validity of further allotment of shares.
6. Winding up of the company and distribution of proceeds.
Issue-wise Detailed Analysis:
1. Authority of the Third Respondent as a Director:
The petitioners sought a declaration that the third respondent had no authority to represent as a director of the company and execute the sale deeds. The court found that the third respondent had resigned from the office of director and managing director with effect from August 14, 2000. The re-appointment of the third respondent as a director on March 14, 2005, was disputed and not substantiated by reliable evidence. Therefore, the third respondent's authority to execute the sale deeds was questionable.
2. Validity of the Sale Deeds:
The petitioners challenged the validity of the sale deeds dated April 28, 2005, executed by the third respondent, claiming they were null and void. The court observed that the properties were sold for an amount far below the market value, causing significant losses to the company. The petitioners had indicated a ready offer of Rs. 1.65 crores for the properties, which was not contested by the respondents. The court concluded that the sale of the properties for Rs. 27.52 lakhs was a breach of trust and ordered respondents Nos. 2 to 6 to compensate the company for the losses incurred.
3. Legality of Form No. 32:
The petitioners contended that Form No. 32, notifying their resignation from the directorship, was illegal and void ab initio. The court found that the petitioners never tendered any resignation and that the filing of Form No. 32 was a clear case of falsification of documents by respondents Nos. 2 to 6. The court declared Form No. 32 as illegal and void.
4. Scheme for Vesting Properties in an Administrator:
The petitioners sought a scheme for vesting the properties of the company in an administrator for distribution to all shareholders. The court directed the board of directors to distribute the sale proceeds of the properties to all shareholders in proportion to their shareholding, after meeting statutory liabilities and expenses.
5. Validity of Further Allotment of Shares:
The petitioners challenged the further allotment of shares made on various dates, claiming they were illegal and void. The court found that the allotments were discriminatory and lacked justification. The resolutions for the allotments did not provide any reasons or requirements for additional funds. The court set aside all the allotments as null and void and directed the company to rectify the register of members accordingly.
6. Winding Up of the Company and Distribution of Proceeds:
The petitioners sought the winding up of the company and distribution of proceeds among shareholders. The court directed respondents Nos. 2 to 6 to compensate the company for the losses incurred due to the sale of properties. The board of directors was instructed to distribute the sale proceeds among shareholders before availing the benefit of the "Simplified Exit Scheme, 2005" for striking off the company's name from the register.
Conclusion:
The court, exercising its powers under sections 397, 398, 402, and 406 read with section 543, directed the following:
1. Induction of the petitioners into the board of directors.
2. Setting aside the allotment of shares made on June 29, 2002, June 30, 2003, December 30, 2004, and March 14, 2005.
3. Rectification of the register of members.
4. Contribution of Rs. 1,40,23,200 by respondents Nos. 2 to 6 to the company's assets as compensation.
5. Distribution of sale proceeds of the properties among shareholders.
6. Forwarding a copy of the order to the Registrar of Companies for appropriate action.
The company petition and connected applications were disposed of without any order as to costs, and all interim orders were vacated.
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2008 (4) TMI 810
Issues Involved:1. Acknowledgment of Debt u/s 25(3) of the Indian Contract Act. 2. Bar of Limitation u/s 18 of the Limitation Act. Summary:Acknowledgment of Debt u/s 25(3) of the Indian Contract Act:The primary issue in the appeal was whether Exs.A.1 and A.3 constituted an acknowledgment of debt under Section 25(3) of the Indian Contract Act. The appellant contended that Ex.A.3 did not contain an unconditional acknowledgment or promise to pay the amount, thus making the suit barred by limitation. The respondent argued that Ex.A.3 was a valid acknowledgment. The court found that Ex.A.3 contained a conditional promise to pay the amount only after receiving funds from the Tamil Nadu Electricity Board, which does not satisfy the requirement of an unconditional promise under Section 25(3) of the Indian Contract Act. Therefore, Ex.A.3 could not be considered an acknowledgment of debt. Bar of Limitation u/s 18 of the Limitation Act:The court examined whether the suit was barred by limitation. Section 18 of the Limitation Act requires that an acknowledgment of liability must be made before the expiration of the prescribed period for instituting a suit. The court noted that Ex.A.1, dated 24.09.1999, was an acknowledgment by the appellant agreeing to pay the amount within three months, which was within three years from the date of the loan. However, the suit was filed in January 2003, beyond the three-year period from the date of Ex.A.1. Therefore, the suit was barred by limitation despite Ex.A.1 being an acknowledgment within the meaning of Section 18 of the Limitation Act. Conclusion:The court concluded that the first appellate court erred in granting the decree based on Exs.A.1 and A.3. The judgment and decree dated 23.03.2006 in A.S.No.46 of 2005 were set aside, and the judgment and decree dated 21.06.2005 in O.S.No.151 of 2003 were restored. The Second Appeal was allowed, and no order as to costs was made.
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2008 (4) TMI 809
Issues Involved:
1. Negligence of the bus driver.
2. Binding nature of the Tribunal's awards on the appellant.
3. Requirement to implead the driver of the truck as a party.
4. Examination of evidence and findings by the Tribunal and High Court.
5. Applicability of natural justice and procedural requirements.
Detailed Analysis:
1. Negligence of the Bus Driver:
The Tribunal found the appellant, who was the driver of the bus, to be driving rashly and negligently, leading to the accident. Despite the appellant's acquittal in the criminal case, the Tribunal's findings were based on the nature of the damage to both vehicles, which indicated that the bus driver was at fault. The High Court affirmed this finding, stating that the appellant did not challenge the earlier awards passed by the Tribunal, thereby binding him to the finding of negligence.
2. Binding Nature of the Tribunal's Awards on the Appellant:
The appellant argued that the awards passed by the Tribunal in the cases of the passengers were not binding on him as he was not a party to those proceedings. However, the High Court held that the appellant was an aggrieved person and bound by the findings of negligence because he had the opportunity to present his case as a witness (RW1) in the claims filed by the passengers. The Supreme Court upheld this view, stating that the appellant was effectively a party to the proceedings and should have appealed against the findings if he disagreed.
3. Requirement to Implead the Driver of the Truck as a Party:
The appellant contended that the driver of the truck should have been impleaded as a party in his claim petition. The Supreme Court discussed the necessity of involving the driver in the proceedings, emphasizing the principles of natural justice and the need for the driver to have an opportunity to defend himself. The Court noted that while the driver may not be a necessary party in the strict sense, his involvement as a witness or party is crucial for a fair determination of negligence. The Tribunal and the High Court's findings were upheld as the driver of the truck was examined as RW1 in the second set of claims cases.
4. Examination of Evidence and Findings by the Tribunal and High Court:
The Tribunal and the High Court arrived at a finding of fact that the appellant was solely negligent. The appellant's contention that the panchnama and other evidence indicated the truck driver's negligence was rejected. The Supreme Court noted that without contrary evidence from the appellant or the Corporation, the findings of negligence could not be interfered with. The Court emphasized the importance of examining all relevant evidence, including the testimony of the drivers involved, to make a fair determination of negligence.
5. Applicability of Natural Justice and Procedural Requirements:
The Supreme Court highlighted the principles of natural justice, stating that a person must be given an opportunity to defend their actions. The Court discussed the procedural requirements under the Motor Vehicles Act and the Karnataka Motor Vehicles Rules, which do not mandate the impleadment of the driver as a party but require their involvement for a fair determination of liability. The Court concluded that the appellant had sufficient opportunity to present his case and was bound by the findings of negligence due to his involvement in the earlier proceedings.
Conclusion:
The Supreme Court dismissed the appeal, upholding the findings of the Tribunal and the High Court that the appellant was negligent in driving the bus. The Court emphasized the importance of involving all relevant parties and examining all evidence to ensure a fair determination of liability. The judgment did not suffer from any legal infirmity, and there was no order as to costs.
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2008 (4) TMI 808
Issues Involved:
1. Maintainability of the writ petition in a proceeding arising out of a Partition suit filed in a Civil Court.
2. Distinction between Articles 226 and 227 of the Constitution of India.
3. Whether the writ Court should have interfered with the order passed by the learned Civil Judge (Senior Division).
Summary:
1. Maintainability of the Writ Petition:
The primary issue was whether a writ petition is maintainable in a proceeding arising out of a Partition suit filed in a Civil Court of competent jurisdiction. The petition filed before the writ Court was under Articles 226 and 227 of the Constitution, but it was argued that it should be treated as a petition under Article 227. The Court clarified that the petition was indeed a writ petition, as evidenced by the cause title and the declarations within the petition itself.
2. Distinction between Articles 226 and 227:
The Court elaborated on the fundamental differences between Articles 226 and 227. Article 226 confers power on High Courts to issue prerogative writs for enforcing fundamental rights and for any other purpose, while Article 227 vests the High Courts with judicial and administrative power of superintendence over all Courts and tribunals within its jurisdiction. The Court emphasized that these two Articles are distinct and intended for different situations. The power under Article 226 is one of extraordinary original jurisdiction, whereas Article 227 is supervisory and not an exercise of original jurisdiction. The Court also noted that the power under Article 227 can be exercised suo motu, unlike Article 226, which requires an application by an aggrieved party.
3. Interference by the Writ Court:
The Court referred to the guidelines provided by the Supreme Court in Surya Dev Rai v. Ram Chander Rai, which indicate that an ex parte decree is appealable under the Civil Procedure Code (CPC). The writ petitioner's conduct showed carelessness and negligence, and the orders of the Civil Court indicated repeated dismissals of applications under Order 9, Rule 13 CPC. The Court held that filing an application under Articles 226/227 to bypass the remedy available under Order 43, Rule 1, Clause (d) CPC is impermissible. Consequently, the writ petition was deemed misconceived.
Conclusion:
The writ appeal was allowed, the writ petition was dismissed, and the order of the learned Judge of the writ Court was set aside. The Court clarified that it did not examine the merits of the order passed by the Civil Judge (Senior Division) and that the writ petitioner's remedy against the Civil Court's order remained unaffected by this judgment. There was no order as to costs.
Separate Judgment:
B.N. Mahapatra, J. concurred with the judgment.
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2008 (4) TMI 807
The Supreme Court of India heard arguments from both parties in a case. Mr. Gopal Subramanium and Ms. Alka Sharma represented the petitioner, while Mr. Rupesh Kumar represented the respondent. The hearing concluded, and judgment was reserved. Written submissions were to be filed within one week. (2008 (4) TMI 807 - SC Order)
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2008 (4) TMI 806
Issues Involved:
1. Validity of Sections 326A to 326J of the Chennai City Municipal Act, 1919.
2. Validity of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003.
3. Alleged violation of Articles 19(1)(a), 19(1)(b), and 14 of the Constitution of India.
4. Regulation of hoardings on private and public properties.
5. Implementation and enforcement of the Advertisement Rules.
6. Alleged arbitrariness and discrimination in the application of the rules.
Detailed Analysis:
Validity of Sections 326A to 326J of the Chennai City Municipal Act, 1919:
The Supreme Court upheld the validity of Sections 326A to 326J of the Chennai City Municipal Act, 1919. These sections pertain to the licensing of hoardings and were introduced to prevent the haphazard erection and proliferation of hoardings, ensure an orderly and aesthetic appearance in the city, and address safety concerns by removing hazardous hoardings. The Court emphasized that these provisions serve the public interest and are necessary for regulating both public and private hoardings visible from public roads.
Validity of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003:
The Court found that the Advertisement Rules of 2003, which include restrictions on the size, height, spacing, and erection of hoardings, are valid and necessary for public safety and aesthetic purposes. The rules also restrict hoardings in certain sensitive areas such as educational institutions, places of worship, hospitals, and historical sites. The Court noted that these rules are not arbitrary but are regulatory measures aimed at ensuring public safety and order.
Alleged Violation of Articles 19(1)(a), 19(1)(b), and 14 of the Constitution of India:
The appellants argued that the Advertisement Rules violate Articles 19(1)(a) and 19(1)(b) of the Constitution, which protect the freedom of speech and expression, and Article 14, which ensures equality before the law. The Court, however, rejected these contentions, stating that the rules are regulatory and not restrictive. The Court noted that the regulation of hoardings is necessary to prevent hazards and ensure public safety, and that the rules do not infringe upon the constitutional rights of the appellants.
Regulation of Hoardings on Private and Public Properties:
The Court held that hoardings on private properties also require regulation as they are often visible from public roads and can pose safety hazards. The Act and the Advertisement Rules apply to both public and private hoardings to ensure that they do not obstruct or distract traffic, which can lead to accidents. The Court emphasized that the State has the right to regulate public places and impose necessary limitations to protect the public.
Implementation and Enforcement of the Advertisement Rules:
The Court directed the District Collector and other authorities to take immediate steps to remove unauthorized hoardings and recover advertisement tax, rent, and penalties from hoarding owners. The Court also mandated the formation of a Committee to identify places of historical and aesthetic importance and oversee the removal of illegal hoardings. The authorities were instructed to follow the principles of natural justice and provide reasons for their actions in show cause notices.
Alleged Arbitrariness and Discrimination in the Application of the Rules:
The appellants argued that the rules are applied arbitrarily and discriminate between private and public hoardings. The Court dismissed these claims, stating that the rules are applied uniformly to all hoardings, whether on public or private property. The Court noted that the rules are designed to ensure public safety and are not discriminatory. The Court also emphasized that the rules provide for an appeal process, ensuring that the principles of natural justice are upheld.
Conclusion:
The Supreme Court dismissed the appeals and writ petitions, upholding the validity of Sections 326A to 326J of the Chennai City Municipal Act, 1919, and the Advertisement Rules of 2003. The Court found that the regulations are necessary for public safety, aesthetic purposes, and orderly management of hoardings in Chennai. The Court emphasized that the rules are regulatory, not restrictive, and do not violate the constitutional rights of the appellants.
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2008 (4) TMI 805
Issues involved:
1. Discrepancy in property value in Sainik Farms
2. Apportionment of undisclosed income
Discrepancy in property value in Sainik Farms:
The issue revolved around the value of the property in Sainik Farms, with the DVO's report indicating a higher value than what was disclosed by the assessee. It was acknowledged that no incriminating document suggesting undisclosed investment in the property was found during the search. The Tribunal emphasized the necessity for evidence found during search to establish undisclosed income, citing a judgment of the Madhya Pradesh High Court and a CBDT circular. The Court aligned with previous decisions, emphasizing the requirement for evidence found during search to support claims of undisclosed income. In this case, as no material was discovered during the search to indicate undisclosed income related to the Sainik Farms property, the AO's conclusion was solely based on the assessee's return and the DVO's report. Consequently, no substantial question of law was deemed to arise on this issue.
Apportionment of undisclosed income:
The Revenue's counsel expressed interest in examining the issue of apportioning undisclosed income amounting to Rs. 10,59,700. The matter was adjourned to allow for further submissions specifically on this aspect, with a scheduled date of 10th November 2008.
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2008 (4) TMI 804
Issues Involved:
1. Basis for determining the amount of monthly royalty.
2. Legality, validity, and propriety of the Court Receiver's order fixing monthly royalty.
Issue-wise Detailed Analysis:
1. Basis for Determining the Amount of Monthly Royalty:
The judgment delves into the concept of 'royalty' as a form of rent or compensation paid by an occupier to a landlord for the use of property. The court draws parallels between royalty and mesne profits, emphasizing that mesne profits are damages for wrongful possession of property. The measure of mesne profits is based on the value of the property to the person in wrongful possession, not the value lost by the landlord. The court references several precedents, including the Privy Council and Supreme Court rulings, to highlight that mesne profits should reflect the advantage derived by the wrongful possessor from the property. The court emphasizes that various methods, such as the annual letting value and prevailing rental rates, should be considered to determine the appropriate amount of royalty.
2. Legality, Validity, and Propriety of the Court Receiver's Order Fixing Monthly Royalty:
The court scrutinizes the Court Receiver's order dated 29th November 2006, which fixed the monthly royalty at Rs. 3,70,000 based on a valuation report by M/s. S.S. Joshi & Associates. The court finds that the valuation was based on the estimated returns from the property rather than the value of its use to the defendant, which contradicts the principles established by the Supreme Court. The court notes that the valuer should have considered the annual letting value determined by the Municipal Corporation and prevailing rental rates for equivalent accommodation. The court concludes that the Court Receiver's order is unsustainable and remits the matter back for fresh determination of the royalty, with instructions to follow principles of natural justice and consider multiple valuation methods.
Interim Royalty Determination:
Pending the fresh determination of the monthly royalty, the court directs the defendant to pay an interim royalty of Rs. 1,75,000 per month from 1st December 2006. This amount is based on a 10% return on the balance consideration of Rs. 1,85,31,500, after accounting for the amounts deposited and exhausted. The court orders that the royalty payments be retained in deposit until the suit is decided, ensuring that the funds can be disbursed according to the final judgment.
Conclusion:
The court sets aside the Court Receiver's order fixing the monthly royalty and remits the matter for fresh determination, emphasizing the need for a balanced and fair assessment of the property's value to the wrongful possessor. The interim royalty is set at Rs. 1,75,000 per month, pending the final determination. The court also stays the operation of its order for eight weeks, acknowledging the ongoing payment of the initially fixed royalty by the defendant.
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2008 (4) TMI 803
Murder - Criminal conspiracy - Mere Suspicion - Sufficient ground for proceeding against the accused or not - Application filed by the appellant u/s 227 of the Code of Criminal Procedure, 1973 (the Code) for discharge - charge-sheet filed against the appellant before the Juvenile Court, being below 18 years of age, and against fifteen other persons, which included his father (A-1), mother (A-2), sister (A-4), a family friend (A-11), manager of his father (A-12), in Sessions Court. All of them have been arraigned as members to the conspiracy to murder Kunal.
HELD THAT:- A mere suspicion is not sufficient to hold that there is sufficient ground to proceed against the accused, learned counsel placed reliance on the decision of this Court in Union of India Vs. Prafulla Kumar Samal & Anr.
It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal [1978 (11) TMI 151 - SUPREME COURT].
In State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors.[1996 (4) TMI 515 - SUPREME COURT], a three-Judge Bench of this Court held that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use.
It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.
From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who allegedly had all entered into an agreement to eliminate the deceased. However, as noted above, accused A-1, A-2, A-4, A-11 and A-12 already stand discharged from the charges framed against them under Sections 120B and 302 I.P.C vide orders passed by the High Court and the Sessions Judge respectively. While discharging the said accused, both the courts have come to the conclusion that there is no material on record to show that they had hatched a conspiracy to commit murder of Kunal. Thus, the stand of the prosecution to the effect that the parents, sister and friends of the appellants had entered into a criminal conspiracy stands rejected by virtue of the said orders of discharge.
Furthermore, in its order, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in its entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder. As noted above, State's petition for special leave against the said judgment has already been dismissed.
We are, therefore, of the view that in the light of the subsequent events, namely, the orders of the High Court in Criminal Writ Petitions discharging appellant's mother, sister and two close associates, accused Nos.2, 4, 11 and 12 respectively passed by this Court dismissing the Special Leave Petition preferred by the State and order passed by the Sessions Judge, discharging the father (A-1) of the appellant, stated to be the mastermind behind the entire conspiracy, for offences under Sections 120B and 302 I.P.C., on same set of circumstances and accusations, no sufficient ground survives to proceed against the appellant for the aforementioned offences.
Therefore, we are constrained to allow the appeals. Consequently, the impugned orders are set aside and the appellant is discharged from the charges levelled against him in the charge-sheet.
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2008 (4) TMI 802
Issues involved: Interpretation of Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 regarding levy of market fee and supervision charges, validity of notification adding items to the Schedule, payment of interest on delayed dues.
Interpretation of Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963:
The appellant, a Market Committee, collected market fee and supervision charges on notified agricultural produces marketed on wholesale basis. Dispute arose when respondents did not register under the Act, claiming 'Vanaspati' was not included in the Schedule. Litigations ensued challenging the notification and fee collection. The High Court held that while market fee was valid, supervision charges were to be paid to the State Government, not the Committee.
Validity of Notification Adding Items to Schedule:
The High Court confirmed the validity of adding 'Vanaspati' to the Schedule under the Act, which was accepted by the respondent who deposited market fee amounts on specified dates. However, the issue of supervision charges was contested by the respondent, arguing no services were rendered in the market area to warrant such charges.
Payment of Interest on Delayed Dues:
Regarding interest on delayed dues, the High Court ruled that the Committee had no power to charge interest on market fees and supervision charges. The Court emphasized that the levy of charges must be justified and based on statutory provisions, with no unjust enrichment for the State. The Court cited precedents to distinguish between taxes and fees, emphasizing the principle of equivalence for levy of fees.
Conclusion:
The Supreme Court upheld the High Court's judgment, stating that supervision charges must be justified by the State, and interest payment must be in accordance with statutory provisions. The Court found no reason to interfere with the High Court's decision and dismissed the appeal.
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2008 (4) TMI 801
Issues Involved:
1. Denial of sales-tax incentive benefits under the Government of Gujarat Capital Investment Incentive Premier Prestigious Scheme, 1995-2000.
2. Delay in project completion due to external factors.
3. Eligibility for sales-tax deferment scheme.
4. Legal consequences of court injunctions and subsequent relief from the Supreme Court.
5. Restitution and equitable relief.
Detailed Analysis:
1. Denial of Sales-Tax Incentive Benefits:
The petition was filed under Article 226 of the Constitution against the denial of sales-tax incentive benefits to the petitioner company under the Government of Gujarat Capital Investment Incentive Premier Prestigious Scheme, 1995-2000. The petitioner company had planned a major venture in Vadinar, Jamnagar District, Gujarat, as a 100% export-oriented unit for refining petroleum products.
2. Delay in Project Completion Due to External Factors:
The project faced delays due to several external factors, including injunctions and required permissions. The petitioner company initially obtained necessary permissions from the State and Central Governments. However, a Division Bench of the High Court restrained the State Government from granting further permissions, impacting the project's progress. The petitioner company was not a party to the Public Interest Litigation that led to these injunctions.
3. Eligibility for Sales-Tax Deferment Scheme:
The petitioner company had obtained provisional registration as a Premier Unit and incurred more than 25% of the project cost before the stipulated date. Despite this, the company could not commence commercial production within the extended time limit due to the injunctions. The petitioner argued that the delay was beyond their control and sought extension of the time limit for commencing commercial production.
4. Legal Consequences of Court Injunctions and Subsequent Relief from the Supreme Court:
The High Court's injunction was ultimately set aside by the Supreme Court, which directed the State Government to issue the necessary permissions. The Supreme Court's judgment highlighted that the petitioner company had taken all required steps and that the delay was due to the court's injunction, which was later found to be incorrect.
5. Restitution and Equitable Relief:
The petitioner invoked the doctrine of restitution, arguing that no one should suffer due to an act of the court. The Supreme Court's decision in South Eastern Coalfields Ltd. vs. State of M.P. and other relevant cases supported this argument. The court agreed that the period during which the petitioner was prevented from proceeding with the project should be excluded from the computation of the time limit for commencing commercial production.
Judgment:
The court directed the State Government to consider the petitioner's application for sales-tax deferment benefits under the scheme, excluding the period from 13.07.2000 to 27.02.2004. The court stipulated that the petitioner should not claim any sales-tax deferment benefits beyond 14.08.2020 and should not seek a refund of the sales-tax already paid. Additionally, the amount of sales-tax deferment should be reduced by Rs. 700 crores.
The petition was allowed with the following directions:
1. The period from 13.07.2000 to 27.02.2004 shall be excluded for considering the commencement of commercial production.
2. The petitioner shall not claim sales-tax deferment benefits beyond 14.08.2020.
3. The sales-tax already paid shall not be refunded.
4. The amount of sales-tax deferment shall be reduced by Rs. 700 crores.
The court emphasized that these directions were given in the peculiar circumstances of the case, where the High Court's earlier decision had adversely affected the petitioner without hearing them, and the Supreme Court had subsequently reversed that decision. The petition was allowed with no order as to costs.
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2008 (4) TMI 800
Application Under Order VII Rule 11 of the Code of Civil Procedure, 1908 claiming rejection of the plaint - rejection on the ground that the suit filed was barred by res judicata - Allegedly, the eldest son of Kabadi Gopalsa went out of the joint family by executing a registered Deed of Release upon taking his share in the ancestral property on or about 10.03.1918 - partition is said to have taken place between two sons of Chinnusa, i.e., Kabadi Giddusa and Kabadi Gopalsa on or about 1.05.1926 - Kabadi Gopalsa died in 1947 -
HELD THAT:- Suit was filed by Ramusa (son of Gopalsa) against his mother and three brothers in respect of three house properties being Item Nos. 1, 2 and 3 and the Revenue land (Item No. 4). Defendant No. 3 in the said suit was the grand father of the deceased husband of the appellant No. 1 in the present case.
For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.
The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code.
The plaintiff - appellant might not have prayed for any decree for setting aside the deeds of sale but they have raised a legal plea that by reason thereof the rights of the co-parceners have not been taken away. Their status might not be of the coparceners, after the preliminary decree for partition was passed but as we have indicated hereinbefore the same cannot be a subject matter of consideration in terms of Order VII, Rule 11(d) of the Code.
In Tara Pada Ray v. Shyama Pada Ray and Ors. : AIR1952Cal579 wherein the averments made in the deed of sale had been taken into consideration. Therein, however, the Calcutta High Court noticed that the final decree proceedings need not be resorted to where the directions contained in a preliminary decree had been acted upon by the parties. Even such a question is required to be gone into.
In Kalloomal Tapeswari Prasad (HUF), Kanpur v. Commissioner of Income Tax, Kanpur [1982]133ITR690(SC) to contend that even partial partition is permissible. No exception thereto can be taken but the effect thereof vis-`-vis another suit, it is trite, cannot be determined under Order VII, Rule 11 of the Code.
Therefore, the impugned order cannot be sustained. The appeal is allowed. We, however, must make it clear that the parties would be at liberty to raise all contentions before the learned Trial Judge at appropriate stage (s).
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2008 (4) TMI 799
The Bombay High Court dismissed a motion for condonation of 761 days delay in filing an appeal due to unsatisfactory reasons given by the appellant. Notice of Motion was dismissed with no order as to costs.
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2008 (4) TMI 798
The Delhi High Court dismissed the appeal filed by the Revenue in ITA No.603/2007 (Commissioner of Income Tax v. NHK Japan Broadcasting Corporation) on 23rd April, 2008. The appeal was required to be dismissed as per the court's order.
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2008 (4) TMI 797
Issues involved: Jurisdiction of the court to try offences u/s 498A and 406 IPC based on the place where the cause of action accrued.
Summary:
Jurisdiction of the Court:
The complainant lodged a complaint u/s 156(3) of the Code of Criminal Procedure, leading to the registration of FIR against the appellants for offences u/s 498A, 406, and 147 IPC. The charges were framed for offences u/s 498A and 406 IPC. The appellants contended that the Court of Additional Chief Judicial Magistrate had no jurisdiction to try the offences as the cause of action arose outside its jurisdiction. The Revision Petition and the S.B. Criminal Miscellaneous Petition were rejected, affirming the jurisdiction of the Additional Chief Judicial Magistrate, Sri Ganganagar. The High Court held that the offence of cruelty being a continuing one, the complaint cannot be dismissed as time-barred, and the court in Sri Ganganagar had jurisdiction to try the case since the complainant was residing there. However, the Supreme Court found that no part of the cause of action arose in Rajasthan where the complainant was currently residing, and thus, the Magistrate in Sri Ganganagar had no jurisdiction to deal with the matter.
Precedent and Conclusion:
The appellants relied on a previous decision of the Court which held that the cause of action must have arisen within the jurisdiction of the court trying the offence. The facts revealed that the alleged acts took place in Punjab, not Rajasthan. Therefore, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar were quashed, and the complaint was directed to be returned to the complainant for filing in the appropriate court with jurisdiction. The appeal was allowed accordingly.
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