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Showing 21 to 40 of 658 Records
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2007 (9) TMI 705
Issues Involved:
1. Legality of the dismissal of the respondent-employee's claim by the Single Judge.
2. Entitlement to consequential benefits for the respondent-employee.
3. Validity of filing a fresh petition after dismissal of contempt petitions.
4. Compliance with the court's directions by the appellant-Board.
Summary:
1. Legality of the dismissal of the respondent-employee's claim by the Single Judge:
The Division Bench of the High Court of Karnataka set aside the Single Judge's order dismissing the respondent-employee's claim on the ground that contempt petitions filed by him were dismissed. The Division Bench directed the appellant-Board to implement the direction issued by the Single Judge in Writ Petition No. 1848 of 1992 and disburse all consequential benefits to the writ-petitioner.
2. Entitlement to consequential benefits for the respondent-employee:
The respondent-employee was promoted as First Division Assistant in 1972 and challenged the seniority list published in 1974. The Single Judge allowed the writ petition and directed the Board to reassign seniority and grant consequential benefits. Despite the Board's contention that it had complied with the order, the respondent claimed that arrears of salary were not paid. The Division Bench upheld the respondent's entitlement to consequential benefits, referencing the Supreme Court's decision in S.R. Bhagwat v. State of Mysore, which emphasized that a binding judicial pronouncement cannot be overridden by legislative provisions.
3. Validity of filing a fresh petition after dismissal of contempt petitions:
The Division Bench found that the dismissal of contempt petitions did not preclude the respondent from filing a fresh substantive petition. The Court noted that the respondent had a legitimate grievance as the Board had not complied with the clear direction to grant consequential benefits. The fresh petition was deemed maintainable, and the Division Bench was justified in granting the relief sought.
4. Compliance with the court's directions by the appellant-Board:
The Supreme Court held that once a direction is issued by a competent Court, it must be obeyed and implemented without reservation. The appellant-Board's argument that the respondent was not entitled to financial benefits under the 1973 Act was rejected. The Court emphasized that non-compliance with judicial directions undermines the rule of law. The appellant-Board was ordered to comply with the directions within twelve weeks and pay costs of Rs. 10,000.
Conclusion:
The Supreme Court dismissed the appeal filed by the appellant-Board, upheld the Division Bench's order, and reinforced the principle that judicial directions must be implemented in letter and spirit.
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2007 (9) TMI 704
Issues Involved:
1. Procedural legality of trial by the Special Judge.
2. Admissibility of statements recorded by Custom authorities.
3. Corroboration and evidentiary value of statements.
4. Constructive possession and conscious possession.
5. Legality of seizure and compliance with procedural requirements.
6. Authority of Customs Department to conduct the inquiry.
Detailed Analysis:
1. Procedural Legality of Trial by the Special Judge:
The appellants contended that the Special Judge erred by following the procedure prescribed for Sessions trials instead of warrant cases by Magistrates. The court clarified that Section 36C of the NDPS Act mandates that the Special Court shall be deemed a Court of Sessions, thereby justifying the procedure adopted. The court referenced the Gujarat High Court's view in *Amratlal Devdanbhai Soni v. Director of Revenue Intelligence* and concluded that no procedural illegality occurred, and the trial was valid.
2. Admissibility of Statements Recorded by Custom Authorities:
The appellants argued that their statements were inadmissible under Article 20(3) of the Constitution, which protects against self-incrimination. The court noted that no FIR or formal accusation was lodged when the statements were recorded. Citing *Veera Ibrahim v. State of Maharashtra* and other precedents, the court held that the statements were not hit by Article 20(3) as the appellants were not formally accused at the time. Additionally, the court found that the statements were admissible despite being retracted, provided they were corroborated by other evidence.
3. Corroboration and Evidentiary Value of Statements:
The court examined the statements of the accused and found sufficient corroboration among them. The court referenced the rule of corroboration as laid down in *Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau Thiruvananthapuram* and concluded that the statements were corroborated by independent evidence, including the testimony of witnesses and the forensic report confirming the presence of heroin.
4. Constructive Possession and Conscious Possession:
The court addressed the issue of constructive possession, noting that possession need not be physical but can be constructive. The court found that the accused Yasihey Yobin was in constructive possession of the contraband, as he had control and intention to exercise dominion over it. The court also addressed the contention that Lisihey Ngwarah was unaware of the contraband's nature. Citing *Inder Sain v. State of Punjab*, the court held that the presumption under Section 54 of the NDPS Act applied, and the burden was on the accused to prove lack of knowledge, which they failed to do.
5. Legality of Seizure and Compliance with Procedural Requirements:
The appellants argued that the seizure was illegal due to non-compliance with Section 42 of the NDPS Act. The court noted that the information was reduced to writing by the Custom authorities and found no serious illegality in the process. The court referenced the Kerala High Court's decision in *Kochan Velayudhan v. State of Kerala* and the Supreme Court's decision in *Pooranmal v. Director of Inspection*, concluding that even if the search was illegal, the evidence obtained was admissible.
6. Authority of Customs Department to Conduct the Inquiry:
The appellants contended that the State Police should have conducted the investigation. The court held that the Custom authorities were duly authorized to conduct the inquiry and found no illegality in the process adopted. The court affirmed the authority of the Customs Department under the NDPS Act.
Conclusion:
The court found no procedural illegality in the trial, upheld the admissibility of the statements, and found sufficient corroboration to support the convictions. The court affirmed the constructive possession of the contraband by Yasihey Yobin and the conscious possession by Lisihey Ngwarah. The court also upheld the legality of the seizure and the authority of the Customs Department to conduct the inquiry. Consequently, the court dismissed all three appeals and affirmed the judgment and sentence passed by the Special Judge.
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2007 (9) TMI 703
Issues:
Challenge to order of Commissioner (Appeals) regarding disallowance of service tax credit based on incomplete documents and imposition of penalty.
Summary:
The appellant challenged the order of the Commissioner (Appeals) dated 3.7.2007, which disallowed service tax credit amounting to Rs. 13,51,976/- due to incomplete documentation provided by the appellant. The Adjudication Authority found that the documents submitted did not meet the requirements of the Cenvat Credit Rules, 2004, and also alleged deliberate suppression of facts for evading service tax, leading to the imposition of a penalty. The Commissioner (Appeals) directed the appellant to make a pre-deposit of Rs. 6 lakhs towards service tax and Rs. 3 lakhs towards penalty for the appeal to be heard.
The appellant contended that their modification application, citing a Tribunal's order in a similar case, was not considered by the Commissioner (Appeals) while passing the order. The Departmental Representative highlighted the deficiencies in the documents submitted by the appellant and emphasized the requirements under Rule 4A of the Service Tax Rules, 1994 and Rule 9(1)(f) of the Cenvat Credit Rules, 2004, which were not met by the appellant's documents.
Upon review, the Tribunal found that the Commissioner (Appeals) had properly directed the appellant to make the pre-deposit for the appeal to proceed. Despite the order, the appellant filed a modification application, which was rejected due to non-compliance with the pre-deposit requirement. The Tribunal upheld the Commissioner (Appeals) decision, directing the appellant to deposit the specified amounts within a given timeframe, failing which the appeal would be dismissed.
In conclusion, the Tribunal upheld the Commissioner (Appeals) decision regarding the pre-deposit requirement for hearing the appeal, emphasizing the importance of complying with the specified amounts within the given timeframe to avoid dismissal of the appeal.
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2007 (9) TMI 702
Issues Involved:
1. Validity of the recovery of parallel operation charges by Gujarat Electricity Board (GEB) before 01.09.2000.
2. Jurisdiction of Gujarat Electricity Regulatory Commission (GERC) to quash GEB's circulars.
3. Entitlement of GEB to retain parallel operation charges recovered before 31.08.2000.
Summary:
1. Validity of the Recovery of Parallel Operation Charges by GEB Before 01.09.2000:
The respondent, Oil & Natural Gas Corporation Ltd. (ONGC), sought a refund of Rs. 1,22,27,225/- recovered by GEB as parallel operation charges before 01.09.2000, claiming it was in contravention of the Commission's order dated 31.08.2000. The Commission upheld ONGC's contention and directed the refund of these charges. The appellant, Gujarat Energy Transmission Corporation Limited, challenged this order.
2. Jurisdiction of GERC to Quash GEB's Circulars:
The Commission's order dated 31.08.2000 quashed GEB's Circular No. 706 dated 28.01.2000, stating that parallel operation charges were a form of tariff and could only be determined by the Commission. GEB did not challenge this order nor sought approval for Circular No. 687 under Section 29 of The ERC Act. The Commission later quashed Circular No. 687 in its order dated 06.09.2002, which was issued before the Commission became operational on 19.04.1999.
3. Entitlement of GEB to Retain Parallel Operation Charges Recovered Before 31.08.2000:
The Tribunal examined the legal situation and concluded that Circular No. 687, issued on 21.12.1998, was valid as it was issued before the Commission was operational. The Tribunal referenced the case of Benani Zinc Ltd. v. Kerala State Electricity Board, which clarified that tariff determination by the Board was valid until the Commission was constituted. Therefore, Circular No. 687 was not void ab initio and remained in force until specifically set aside by the order dated 06.09.2002. The Tribunal held that GEB was entitled to recover parallel operation charges up to 31.08.2000, and the claim for a refund by ONGC was not sustainable.
Decision:
The Tribunal allowed the appeal, setting aside the impugned order that directed the refund of parallel operation charges paid during the period before 31.08.2000.
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2007 (9) TMI 701
Issues Involved:
1. Condonation of delay and extension of time for filing particulars of charge u/s 141 of the Companies Act, 1956.
2. Validity of the mortgage created by the company.
3. Compliance with procedural requirements for filing e-form No. 8.
Summary:
1. Condonation of Delay and Extension of Time for Filing Particulars of Charge u/s 141 of the Companies Act, 1956:
The petitioner, ICICI Bank Limited, filed a petition u/s 141 of the Companies Act, 1956, seeking condonation of delay and extension of time for filing particulars of charge created on 28.6.02 by International Industries Limited in favor of the petitioner. The charge was to secure the repayment of a Rupee Term Loan of Rs. 450.00 lacs. The particulars of the charge were not filed with the ROC, West Bengal, within the prescribed 30 days as required u/s 125 of the Act. The petitioner argued that the delay was due to inadvertence on the part of the company and that the petitioner was prevented by sufficient cause from registering the charge itself. The Board found that the delay was due to causes beyond the petitioner's control and granted the prayer for condonation of delay.
2. Validity of the Mortgage Created by the Company:
The company contested the petition, arguing that the mortgage was unauthorized, fraudulent, and illegal. It claimed that the mortgage was created without the company's benefit or interest and without the necessary approval from the Central Government u/s 295 of the Act. The company also initiated criminal proceedings against one of its directors involved in creating the mortgage. The Board noted that its power u/s 141 is limited and does not extend to adjudicating the validity of the charges created. The Board referred to precedents where courts have held that the CLB's discretion u/s 141 is limited to condoning delays and does not involve examining the merits of the charge.
3. Compliance with Procedural Requirements for Filing e-form No. 8:
The petitioner highlighted that the newly introduced e-form No. 8 requires digital signatures from both parties, but the company was not cooperating. The petitioner requested the Board to direct the ROC to accept the e-form No. 8 without the company's digital signature. The Board, however, stated that its powers u/s 141 are limited to condoning delays and do not extend to issuing such directions. The Board extended the time for filing e-form No. 8 by 30 days from the date of the order and directed the petitioner to file a certified copy of the order along with the necessary documents with the ROC, West Bengal. If the ROC accepts the documents without the company's signature, the petitioner must pay Rs. 5,000 towards costs to the ROC.
Disposition:
The petition was disposed of with the above terms.
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2007 (9) TMI 700
Jurisdiction of High Court for directing the appellants to lower the cut-off marks - Advertised Vacancy For the Posts of 'Gangman' by the Waltair Division of the then South Eastern Railways (now known as East Coast Railways) - Respondents herein had not been appointed although they had obtained the qualifying marks specified in terms of the notification dated 09.06.1998 - vacancies reserved for Scheduled Castes and Scheduled Tribes directed to be filled up by general candidates - HELD THAT:- The fact that the Railway Administration intended to fix the cut-off mark for the purpose of filling up the vacancies in respect of the general category as also reserved category candidates is evident from the fact that different cut-off marks were fixed for different categories of candidates. We are, therefore, unable to accept the submission of the learned counsel that the cut-off marks fixed was wholly arbitrary so as to offend the principles of equality enshrined under Article 14 of the Constitution of India. The power of the employer to fix the cut-off marks is neither denied nor disputed. If the cut-off mark was fixed on a rational basis, no exception thereto can be taken.
So far as the submission of the learned senior counsel in regard to the Railway Board's circular letter dated 12.03.1976 is concerned, we may at the outset notice that such a contention had not been raised before the Tribunal. Respondents herein did not have any occasion to meet the said contention. In any event, only because in a case of this nature, the said circular had not been complied with, the same, in our opinion would not lead to a conclusion that action on the part of the appellants in its entirety was unwarranted or mala fide in nature.
Even assuming that the appellants should have filled up the unfilled vacancies meant for the reserved category candidates by the general candidates, but then for the said purpose, the general candidates were required to fulfill the eligibility clause including the cut-off marks fixed therefor. Respondents admittedly did not do so. The High Court, in our opinion, committed a serious error in directing the appellants to lower the cut-off marks. The cut-off mark 20 was fixed for the Scheduled Caste and Schedule Tribe candidates. The same was not meant to be applied to the general category candidates. The jurisdiction of the appellants to fix different cut-off marks for different category of candidates has never been questioned and in that view of the matter only because the Railway Board had issued a circular as far back as in the year 1976 to fill up the vacancies by unreserved candidates in the event the reserved category of candidates was not available therefor, in our opinion, the same would not mean that irrespective of the qualification and performance of general category candidates they were entitled to be appointed.
It is now a well-settled principle of law that even wait-listed candidates have no legal right to be appointed. [Ashwani Kumar Singh v. U.P. Public Service Commission and Others [2003 (7) TMI 698 - SUPREME COURT].
It was for the appellant to decide as to whether the posts were to be dereserved or carried forwarded. [Rajasthan Public Service Commission and Another etc. v. Harish Kumar Purohit and Others etc.[2003 (4) TMI 568 - SUPREME COURT].
In any view of the matter, the respondents appeared in a competitive examination. The posts advertised were public posts. They did not have any vested right for appointment. It is well-known that even selected candidates do not have legal right in this behalf. [See Shankarasan Dash v. Union of India [1991 (4) TMI 444 - SUPREME COURT], Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir and Others [1993 (4) TMI 324 - SUPREME COURT].
It is also well-settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. [See Munindra Kumar and Others v. Rajiv Govil and Others [1991 (5) TMI 255 - SUPREME COURT]. [See also Rashmi Mishra v. Madhya Pradesh Public Service Commission and Others [2006 (10) TMI 485 - SUPREME COURT]
We are, however, not oblivious that there are certain exceptions to the aforementioned rules but we are not concerned therewith in the present case - Thus, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed.
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2007 (9) TMI 699
Issues Involved:
1. Rectification of Register of Members
2. Delivery of Share Certificates
3. Declaration of Directorship
4. Removal of a Director
5. Restraining Sale of Immovable Properties
6. Investigation into Affairs of the Company
7. Surcharge on the Second Respondent
Issue-wise Detailed Analysis:
1. Rectification of Register of Members:
The petitioners, holding 20.83% of the paid-up capital, claimed rectification of the register of members for 1025 shares. The respondents argued that the petitioners had transferred their shares in 2005. The Board found discrepancies in the share certificates and transfer deeds, noting the petitioners still held original certificates for 410 shares. The respondents' inconsistent claims regarding the transfer years (1999, 2001, and 2005) and lack of proof for consideration payments led the Board to order the rectification of the register of members, reinstating the petitioners' names for 1015 shares.
2. Delivery of Share Certificates:
The petitioners sought delivery of share certificates for 615 shares. The Board found that the original and new share certificates were held by both petitioners and respondents. The Board ordered the cancellation of both sets of certificates and directed the issuance of fresh certificates to the petitioners.
3. Declaration of Directorship:
The petitioners claimed to be directors of the company. The respondents asserted that the petitioners had resigned in 2001, supported by Form No. 32 and annual returns. The Board noted the petitioners' admission in a power of attorney that they were "earlier directors." The Board concluded that the petitioners were no longer directors and denied their request for a declaration of directorship.
4. Removal of a Director:
The petitioners sought the removal of the second respondent from the office of director and managing director. The Board did not address this issue directly in the order, focusing instead on the broader issues of shareholding and management.
5. Restraining Sale of Immovable Properties:
The petitioners wanted to restrain the company from selling its only remaining land. The Board allowed the sale but directed that the proceeds be used exclusively for the company's purposes, certified by the board of directors.
6. Investigation into Affairs of the Company:
The petitioners alleged mismanagement and sought an investigation. The Board appointed a Chartered Accountant to scrutinize and verify the financial transactions and development expenses, with a report due by 30.11.2007. The report's findings would be binding on all parties.
7. Surcharge on the Second Respondent:
The petitioners sought a surcharge on the second respondent based on the investigation's outcome. The Board directed the second respondent to reimburse any diverted funds found by the Chartered Accountant, with a 10% interest penalty for non-compliance.
Conclusion:
The Board ordered the rectification of the register of members, issuance of fresh share certificates, and a financial audit by a Chartered Accountant. The company was permitted to sell its land under strict conditions, and the second respondent was held accountable for any financial discrepancies. The petitioners' claims of directorship were denied, and the petition was disposed of with specific directions for implementation.
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2007 (9) TMI 698
Issues Involved:
1. Liability of sureties in the absence of the principal borrower.
2. Non-joinder of legal representatives.
3. Dismissal of the suit against the principal borrower.
4. Recovery of costs.
Summary:
1. Liability of Sureties in the Absence of the Principal Borrower:
The court addressed whether sureties could be held liable in the absence of the principal borrower. It was contended that the sureties, having executed the promissory note along with the principal borrower, were not liable to discharge the suit amount jointly or severally if the principal borrower was not on record. The court cited precedents, including *State Bank of Hyderabad v. Nagabushanam* and *Chattanatha v. Central Bank of India*, which emphasized that the liability of sureties is contingent upon the default of the principal borrower. The court concluded that the sureties could not be made liable without the principal borrower being on record.
2. Non-joinder of Legal Representatives:
The appellate court observed that the suit was not bad for non-joinder of other legal representatives of the deceased surety, V. Lakshman Raju. It was noted that the estate of V. Lakshman Raju was sufficiently represented by D3 (one of his sons) and D4 (his wife). The court held that non-impleading of other legal representatives could not be a ground for dismissal of the suit.
3. Dismissal of the Suit Against the Principal Borrower:
The appellate court noted that the suit against the principal borrower was dismissed for non-payment of batta and non-service of summons. It was observed that u/s 137 of the Indian Contract Act, mere forbearance by the creditor to sue the principal debtor does not discharge the surety. The court emphasized that the liability of the surety is co-extensive with that of the principal debtor, and the dismissal of the suit against the principal debtor does not discharge the sureties' liability.
4. Recovery of Costs:
The plaintiff appealed against the denial of costs by the appellate court. The court held that the appellate court had exercised its discretion in passing the order without costs, and the plaintiff could not insist on the suit being decreed with costs. The cross objections by D3 were accepted, and it was held that D3 was not liable to pay any amount due to the dismissal of the suit against the principal borrower.
Conclusion:
The cross objections were allowed, setting aside the judgment of the appellate court and confirming the decree of the trial court. The second appeal for recovery of costs was dismissed, with each party bearing their own costs.
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2007 (9) TMI 697
Issues Involved:
1. Constitutional validity of Notification dated 28-1-2003 issued u/s 2(1)(c)(v) of the Securitisation Act.
2. Correctness of the judgment dated 20-7-2007 of the Debts Recovery Appellate Tribunal.
3. Availability of remedies under the Securitisation Act to Co-operative Banks.
4. Excessive use of delegated authority by the Central Government.
5. Legislative competence of the State Legislature in providing remedies to Co-operative Banks.
Summary:
1. Constitutional Validity of Notification dated 28-1-2003:
The petitioners challenged the constitutional validity of the Notification dated 28-1-2003 issued u/s 2(1)(c)(v) of the Securitisation Act, which included Co-operative Banks within the definition of "Bank". The Court observed that the challenge was based on a misconception relating to the scope of expressions "Bank" and "Banking Company" in the Securitisation Act. The Court held that the definitions of "Bank" and "Banking Company" in Clauses (c) and (d) of Section 2(1) of the Securitisation Act, and Clauses (d) and (e) of Section 2 of the RDB Act, show that the law does not require every Bank to be a Banking Company. Therefore, the challenge to the Notification was rejected.
2. Correctness of the Judgment dated 20-7-2007 of the Debts Recovery Appellate Tribunal:
The petitioners appealed against the judgment of the Debts Recovery Appellate Tribunal dated 20-7-2007, which dismissed their appeal. The Court noted that the Debts Recovery Appellate Tribunal had left the petitioners the liberty to argue before the Debts Recovery Tribunal the question of the Bank's right to pursue parallel remedies. The Court found no reason to interfere with the judgment of the Debts Recovery Appellate Tribunal.
3. Availability of Remedies under the Securitisation Act to Co-operative Banks:
The Court referred to the decision of the Division Bench in Khaja Industries v. The State of Maharashtra and Anr., which considered the effect of the Supreme Court's judgment in Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex. Pvt. Ltd. and Ors. The Court held that the Securitisation Act provides an independent remedy to secured creditors, including Co-operative Banks, and this remedy is in addition to those available under any other law.
4. Excessive Use of Delegated Authority by the Central Government:
The petitioners contended that the Central Government's issuance of the Notification dated 28-1-2003 amounted to excessive use of delegated authority. The Court rejected this contention, stating that the Legislature had to bring Co-operative Societies undertaking Banking within the control and governance of the Banking Regulation Act. The Court emphasized that the scheme and object of the Banking Regulation Act cannot be used to defeat a special enactment like the Securitisation Act.
5. Legislative Competence of the State Legislature:
The petitioners argued that the State Legislature could not have provided such a remedy to Co-operative Banks under the Maharashtra Co-operative Societies Act, and therefore, the Central Government could not have created such a remedy. The Court referred to the judgment of the Division Bench in Khaja Industries, which upheld the legislative competence of the State Legislature. The Court reiterated that the Securitisation Act is an independent enactment providing remedies to secured creditors and is not limited by the provisions of the RDB Act.
Conclusion:
The Court dismissed the petition, holding that the contentions raised by the petitioners had no force and that the attempt to evade recovery of dues by action under the Securitisation Act must fail.
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2007 (9) TMI 696
Issues involved:
The judgment involves the assessment year 1972-73, with the main issue being the correctness of the order of the Commissioner (Appeals) annulling the assessment order dated 29-5-1980 based on fictitious transactions.
Details of the Judgment:
1. The assessee, engaged in business under M/s. Agarwal Scientific Glass Industries, filed a return for the assessment year 1972-73 showing an income of Rs. 29,407. The balance sheet revealed three creditors with significant amounts. However, investigations revealed discrepancies in the transactions with these parties, leading to doubts about the authenticity of the purchases.
2. The Assessing Officer completed the assessment under section 143(3) without making any additions regarding the questionable transactions. Subsequently, the Commissioner of Income-tax initiated action under section 263, deeming the assessment order as erroneous and prejudicial to revenue due to the fictitious transactions.
3. The Commissioner set aside the assessment, stating that the Assessing Officer erred in accepting the assessee's claims without proper analysis. The matter was remanded for further examination and a fresh assessment.
4. The Income-tax Appellate Tribunal, after considering submissions and evidence, initially set aside the Commissioner's order. However, a subsequent question arose regarding the justification of this decision, leading to further proceedings and appeals.
5. The Tribunal's order dated 31-12-1979 was challenged, and a series of legal actions ensued, including the setting aside of a fresh assessment order by the Commissioner (Appeals) on the grounds of jurisdiction.
6. The Tribunal's decision to uphold the annulment of the fresh assessment order was questioned, and the matter was brought before the High Court for resolution.
7. The High Court determined that the Tribunal was not justified in supporting the annulment of the fresh assessment order and ruled in favor of the revenue department against the assessee.
This summary encapsulates the key issues and details of the legal judgment involving the assessment year 1972-73 and the disputed transactions leading to the annulment of the assessment order.
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2007 (9) TMI 695
Issues Involved:
1. Extent of judicial review permissible u/s Article 226 of the Constitution of India in respect of tender eligibility criteria.
2. Allegation of arbitrary and oppressive tender conditions.
3. Compliance with Rule 17 of the Karnataka Transparency in Public Procurement Rules, 2000.
Summary:
1. Extent of Judicial Review u/s Article 226:
The core issue is whether the High Court can change the terms of a tender notice on the grounds of inappropriateness and better objective achievement through different criteria. The Court emphasized that terms of the invitation to tender are not open to judicial scrutiny as they fall within the realm of contract. The Government must have a free hand in setting tender terms, and courts can only interfere if the policy decision is arbitrary, discriminatory, malafide, or actuated by bias. The Court cited the Apex Court's decision in Directorate of Education v. Educomp Datamatics Ltd., stating that courts cannot strike down tender terms because they feel other terms would be fairer or more logical.
2. Allegation of Arbitrary and Oppressive Tender Conditions:
The petitioner argued that the tender conditions were designed to exclude them from participating. The conditions required a minimum average annual turnover of Rs. 500 crores and supply of 5,000 sets of Tyres, Tubes, and Flaps per annum to specific manufacturers. The respondents contended that these conditions were imposed to ensure high-quality supplies, as the petitioner's previous supplies were found defective. The Court found that the conditions were not arbitrary or malafide but were set to ensure quality and performance. The decision to hike the turnover requirement from Rs. 200 crores to Rs. 500 crores was made after detailed discussions and was not intended to exclude the petitioner.
3. Compliance with Rule 17 of the Karnataka Transparency in Public Procurement Rules, 2000:
The petitioner claimed that the tender notification violated Rule 17. The Court noted that the tender notification was published in a newspaper, and the terms were available on the website. The reduction of the tender period from 60 days to 45 days was approved by the competent authority with recorded reasons, complying with Rule 17(2). The corrigendum issued to modify the tender conditions was also found to be clear and advantageous to the petitioner, as it deleted the specific manufacturers' names while maintaining the pre-qualification criteria.
Conclusion:
The Court concluded that the tender conditions were neither arbitrary nor malafide and complied with the relevant rules. The petition was rejected, affirming that the terms set by the tendering authority were within their prerogative and did not warrant judicial interference.
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2007 (9) TMI 694
Issues Involved:
1. Legality of the acceptance of resignation.
2. Validity of the withdrawal of resignation.
3. Compliance with statutory provisions and departmental instructions.
Summary:
1. Legality of the acceptance of resignation:
The appellant school, governed u/s 114A of the Delhi School Education Act, 1973, accepted the resignation of the first respondent, a Sanskrit teacher, on 19.03.1997. The acceptance was subject to the approval of the Director of Education. As no approval was received within 30 days, it was deemed to have been received. The resignation was communicated to the first respondent on 13.05.1997, effective from 17.06.1997.
2. Validity of the withdrawal of resignation:
The first respondent claimed to have withdrawn his resignation on 18.03.1997, which the appellant school denied receiving. The High Court's Single Judge found that the purported withdrawal letter was never received by the school, and the entry in the dispatch register related to another correspondence. The Division Bench, however, allowed the first respondent's appeal, stating he could withdraw his resignation before 17.06.1997. The Supreme Court held that the resignation was validly accepted within the statutory period, and the first respondent's claim of withdrawal was not substantiated.
3. Compliance with statutory provisions and departmental instructions:
The acceptance of resignation was governed by the statutory provisions of the Act and the rules framed thereunder. The Supreme Court noted that the Managing Committee's acceptance of the resignation was within the legal framework, and the Director of Education's approval was deemed granted after 30 days. The departmental instruction dated 17.10.1996, cited by the respondents, was deemed not relevant to the case as it pertained to the internal rules of the school and did not nullify the resolution passed by circulation.
Conclusion:
The Supreme Court set aside the Division Bench's judgment, upholding the validity of the resignation acceptance and rejecting the claim of withdrawal by the first respondent. The appeal was allowed with no costs.
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2007 (9) TMI 693
Issues involved:
The issues involved in this case include the interpretation of a force majeure clause in a contract for the supply of oil, the validity of a non-speaking arbitration award, and the limited scope of interference by the court in such awards.
Interpretation of Force Majeure Clause:
The appellant had offered to supply oil to the respondent, Union of India, but failed to do so as per the agreed schedule, leading to the cancellation of the contract. The appellant invoked the force majeure clause due to a government ban on the use of rapeseed oil for manufacturing Vanaspati. However, the court found that the ban did not restrict the manufacturing of rapeseed oil itself, rendering the force majeure argument meritless. The Division Bench affirmed that the ban was specific to the use of rapeseed oil for Vanaspati, not its manufacture, thus upholding the lower court's decision.
Validity of Non-Speaking Arbitration Award:
The arbitrator in this case issued a non-speaking award, which was upheld by the learned Single Judge and the Division Bench of the High Court. The Supreme Court reiterated the legal principle that the court's interference in a non-speaking award is extremely limited. Citing various judicial precedents, the court emphasized that it is not within its purview to question the arbitrator's reasoning or mental process in the absence of explicit reasons provided in the award. The court's role is to support the award within the confines of the law, especially when the arbitrator's decision adheres to the parties' agreement and is not tainted by misconduct.
Scope of Arbitration and Court's Role:
Arbitration is described as a private method of dispute resolution where parties agree to be bound by the decision of an arbitrator. The court's duty is to honor and uphold arbitration awards to the extent possible, respecting the parties' agreement and the principles of natural justice. The court should refrain from interfering in the arbitrator's decision-making process unless there is a clear violation of the law or public policy. The court's authority in arbitration matters is limited, and it should support the award unless there are compelling reasons to set it aside.
In conclusion, the Supreme Court dismissed the appeal, affirming the decisions of the lower courts regarding the force majeure clause and the non-speaking arbitration award. The court directed each party to bear their own costs, emphasizing the importance of upholding arbitration awards and respecting the parties' agreements in dispute resolution.
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2007 (9) TMI 692
The Delhi High Court dismissed the revenue's appeal for the assessment year 1999-2000, regarding the interpretation of Section 14A of the Income Tax Act. The court found no substantial question of law as the tax effect was minimal.
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2007 (9) TMI 691
Issues involved: Review of judgment under Section 482 of the Code of Criminal Procedure, failure to implead necessary party, violation of natural justice.
Summary:
1. The applicant sought modifications of a judgment passed in a criminal case, stating errors and lack of impleading as a necessary party in a petition under Section 482 of CrPC for quashing of a charge order.
2. The applicant filed a complaint leading to framing of charges against accused persons, including her husband and others, under IPC sections. Accused persons filed a revision petition without making the applicant a party.
3. Accused persons contended that no charge was framed under Section 406 IPC on a specific date, leading to dismissal of their revision petition. However, the applicant argued that charges were framed on that date.
4. The High Court found that the charges were indeed framed on the disputed date, leading to a limitation issue in the revision petition.
5. The accused persons failed to dispute the framing of charges on the disputed date, but argued against the High Court's jurisdiction to review the order under Section 362 of CrPC.
6. The High Court emphasized the importance of hearing the complainant in petitions seeking to quash charges, citing Supreme Court precedents.
7. The High Court recalled the order dated 18.11.2006 due to the violation of natural justice principles, directing a fresh hearing with the applicant being impleaded as a respondent.
Separate Judgment:
- In P. Sundarrajan v. R. Vidhya Sekar, the High Court's order without hearing the respondent violated natural justice principles.
- The High Court's order was deemed void due to the denial of the applicant's right to be heard, in line with established legal principles.
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2007 (9) TMI 690
Maintainability of Writ Petition - Doctrine of "forum conveniens" - Territorial limits of jurisdiction - cause of action, arises - Whether the writ Petition challenging the order of the Debt Recovery Appellate Tribunal (DRAT) which is situate within the territorial limits of this Court, while the original Tribunal is situate in another State is maintainable - notice to the petitioner u/s 13 (2) of the Securitisation and Reconstruction of Financial Assets and enforcement of Security Interest Act, 2002 ("sarfaesi Act") r/w Rule 3 of the Security Interest (Enforcement) Rules, 2002 -
HELD THAT:- The Division Bench in Bhanu Constructions case [2000 (11) TMI 1141 - SUPREME COURT] held that the High Court would have no power of superintendence, if as a result of intervention under Article 226 of the Constitution of India, an order of a tribunal over which the High Court has no power of superintendence, is subject to scrutiny and that then the High court would refuse to entertain the request since it would amount to interfering and usurping the power of the other High court, and that, in that case the seat of authority must be deemed to be in hyderabad. This is really contrary to the judgment in Kusum Ingots case [2004 (4) TMI 342 - SUPREME COURT].
Even in Bhanu Constructions case, the Division Bench has held that after the 15th amendment of the Constitution introducing Article 226 (2) of the Constitution of India, the legal position is that a Writ can be issued by a high Court within whose jurisdiction the cause of action wholly or in part arises irrespective of the seat of authority. Therefore, even assuming that by a fiction, the seat of Appellate Authority in this case should be deemed to be in Hyderabad logically, that alone is not the criterion and the High Court within whose jurisdiction, cause of action, arises can definitely issue a Writ. In this case, the order of the Debt Recovery Appellate Tribunal by which the petitioner is aggrieved is most certainly "a cause of action".
The decision in Bhanu Constructions Pvt. Ltd. "s case as regards maintainability is not correct. The order of reference is answered accordingly. The connected Miscellaneous Petitions are closed
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2007 (9) TMI 689
... ...
... ... ..... ORDER Delay condoned. The appeal is dismissed.
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2007 (9) TMI 688
Issues Involved:
1. Legitimacy of the forfeiture order under SAFEMA.
2. Adequacy of the notice and reasons to believe under Section 6(1) of SAFEMA.
3. Compliance with principles of natural justice.
4. Validity of the competent authority's findings.
5. Relevance of findings under other laws.
Detailed Analysis:
1. Legitimacy of the forfeiture order under SAFEMA:
The petitioners challenged the forfeiture of properties and bank deposits under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The competent authority had directed the forfeiture of several properties and bank deposits, claiming they were illegally acquired. The appellate tribunal confirmed this order. The properties in question included house numbers in Bara Bazar, Shahdara, Delhi, and deposits in Shiv Trading Co. and the National Bank of Lahore (now State Bank of India).
2. Adequacy of the notice and reasons to believe under Section 6(1) of SAFEMA:
The petitioners argued that the notice under Section 6(1) of SAFEMA was vague and did not disclose the reasons to believe that the properties were illegally acquired. The competent authority's reasons were not disclosed to the petitioners until the appellate stage. The appellate tribunal held that the competent authority was not legally required to disclose the information received from various sources before issuing the notice. However, the court emphasized that the reasons to believe should be recorded in writing and should precede the issuance of the notice. The competent authority failed to conduct an inquiry or investigation under Section 18 before issuing the notice, which was a necessary safeguard.
3. Compliance with principles of natural justice:
The petitioners contended that they were denied a fair hearing as the reasons for the forfeiture were not disclosed to them. The appellate tribunal found that the competent authority had valid reasons recorded in writing before issuing the notice. However, the court noted that the stringent nature of SAFEMA required higher safeguards, including proper disclosure of reasons to the affected parties. The failure to disclose the reasons resulted in a violation of natural justice principles.
4. Validity of the competent authority's findings:
The competent authority concluded that the properties were illegally acquired based on the petitioners' inability to prove the legitimacy of the sources of income. The court found that the competent authority's rejection of the petitioners' explanations was based on assumptions and lacked proper inquiry. The properties were acquired nearly a decade before the notice, and the petitioners had provided explanations for their acquisition. The court held that the burden of proof should be based on the preponderance of probabilities rather than beyond reasonable doubt.
5. Relevance of findings under other laws:
The petitioners highlighted that the Income Tax Authorities and the Central Board of Excise and Customs had found no evidence of illegal activities. The court noted that while findings under other laws were not conclusive, they were relevant and should not be completely ignored. The competent authority and the tribunal erred in disregarding these findings, which showed no material evidence of smuggling or illegal activities.
Conclusion:
The court quashed the impugned order, holding that the competent authority and the tribunal failed to comply with the necessary safeguards and principles of natural justice. The reasons to believe were not properly recorded or disclosed, and the findings were based on assumptions without proper inquiry. The court emphasized the need for strict interpretation and higher safeguards in cases involving stringent laws like SAFEMA. The petition was allowed, and the forfeiture order was set aside.
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2007 (9) TMI 687
Issues Involved:
1. Validity of treating Finance and Law Departments as separate units for promotions.
2. Retrospective amendment of Service Rules.
3. Applicability of G.O.Ms. No.126 to retired employees.
4. Delay and limitation in filing claims.
5. Doctrine of legitimate expectation and Article 14 of the Constitution.
Detailed Analysis:
1. Validity of treating Finance and Law Departments as separate units for promotions:
The Government of Tamil Nadu issued G.O.Ms. No.1290 dated 05.06.1970, excluding the Finance and Law Departments from the "one unit" system for promotions. This led to employees in these departments receiving promotions ahead of their peers in other departments. The Tribunal initially allowed claims for equal promotion opportunities, citing the lack of guidelines for department allocation. However, the State later amended the Service Rules retrospectively to legitimize the separate treatment of these departments.
2. Retrospective amendment of Service Rules:
In response to the Tribunal's decision, the Government amended the Service Rules with retrospective effect from 05.06.1970 through G.O.Ms. No.30 dated 28.01.1994. This amendment aimed to validate the separate unit system for the Finance and Law Departments. The Tribunal dismissed a review application against this amendment, and the Government subsequently issued G.O.Ms. No.126 dated 29.05.1998 to address grievances by upgrading the pay of seniors in the "one unit" to match their juniors in the Finance Department.
3. Applicability of G.O.Ms. No.126 to retired employees:
The High Court held that G.O.Ms. No.126 applied to employees who had retired before its issuance, as it aimed to resolve long-standing issues equitably. However, the Supreme Court disagreed, stating that the notification was intended for existing employees and was not meant to confer benefits on retired employees. The notification's terms, including the requirement for an undertaking and the stipulation of no arrears, indicated its prospective application.
4. Delay and limitation in filing claims:
The Tribunal dismissed the applications filed by retired employees, citing a 20-year delay. The Supreme Court upheld this view, emphasizing that claims should have been raised promptly after the initial promotions in the Finance Department or the Tribunal's order in 1993. The Court noted that filing representations alone does not save the limitation period, and delay or latches can deprive claimants of benefits.
5. Doctrine of legitimate expectation and Article 14 of the Constitution:
The respondents argued that G.O.Ms. No.126 created a legitimate expectation for equal treatment. However, the Supreme Court clarified that legitimate expectation does not create new rights and must align with existing statutes. The Court also highlighted that Article 14 does not guarantee fundamental rights to promotion or post-retirement benefits. The classification of employees based on service status (active vs. retired) was deemed rational and not violative of Article 14.
Conclusion:
The Supreme Court set aside the High Court's judgment, ruling that G.O.Ms. No.126 applied prospectively to existing employees and did not extend benefits to retired employees. The appeals were allowed, and the claims based on long-standing grievances were dismissed due to delay and lack of legitimate expectation for retrospective benefits.
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2007 (9) TMI 686
Remand in police custody - Application of Sub-section (2) of Section 173 of the CrPC vis-`-vis Sub-section (2) of Section 309 - Application for statutory bail u/s 167 (2) of the Code filled on expiry of 60 days from the date of arrest - further investigation was pending - Right of the appellant under Sub-section (2) of Section 167 of the Code - HELD THAT:- Concededly, the investigating agency is required to complete investigation within a reasonable time. The ideal period therefor would be 24 hours, but, in some cases, it may not be practically possible to do so. The Parliament, therefore, thought it fit that remand of the accused can be sought for in the event investigation is not completed within 60 or 90 days, as the case may be. But, if the same is not done with the stipulated period, the same would not be detrimental to the accused and, thus, he, on the expiry thereof would be entitled to apply for bail, subject to fulfilling the conditions prescribed therefor.
Such a right of bail although is a valuable right but the same is a conditional one; the condition precedent being pendency of the investigation.
It is a well-settled principle of interpretation of statute that it is to be read in its entirety. Construction of a statute should be made in a manner so as to give effect to all the provisions thereof. Remand of an accused is contemplated by the Parliament at two stages; pre-cognizance and post cognizance. Even in the same case depending upon the nature of charge sheet filed by the investigating officer in terms of Section 173 of the Code, a cognizance may be taken as against the person against whom an offence is said to have been made out and against whom no such offence has been made out even when investigation is pending. So long a charge sheet is not filed within the meaning of Sub-section (2) of Section 173 of the Code, investigation remains pending. It, however, does not preclude an investigating officer, as noticed hereinbefore, to carry on further investigation despite filing of a police report, in terms of Sub-section (8) of Section 173 of the Code.
The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof. Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.
The High Court, in our opinion, is correct in its finding that, in the fact situation obtaining, the appellant had no statutory right to be released on bail.
We do not, thus, find any infirmity in the judgment of the High Court. Accordingly, the appeal is dismissed.
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