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2007 (3) TMI 835
In the judgment from the Bombay High Court, the court presided over by Justices Dr. S. Radhakrishnan and J.P. Devadhar addressed the matter involving the petitioner represented by Mr. Prakash Shah and the respondents represented by Senior Counsel Mr. A.J. Rana. The court recorded the agreement between the parties as outlined in the "minutes of order," which were accepted and marked as 'X' for identification. The court ordered the petitioner to apply to respondent No.6 within two weeks to determine the applicability of the Standards of Weights and Measures Act and its Rules to the goods mentioned in paragraph 4 of the petition. Respondent No.6 is directed to provide a "speaking order" after giving the petitioner a reasonable opportunity to be heard, within six weeks of the application. The writ petition was disposed of in accordance with these terms.
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2007 (3) TMI 834
Issues:
The judgment involves a criminal revision challenging the conviction and sentence under Section 138 of the Negotiable Instruments Act, where the appellate court confirmed the conviction but modified the sentence and compensation amount.
Issue 1: Conviction and Sentence Modification
The petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to pay a fine of Rs. 5,000/-, which was later modified to Rs. 3,90,780/-. The petitioner challenged this judgment in a criminal revision, arguing that the conviction was vitiated as cognizance was taken before the expiry of the statutory period. The High Court held that the trial court's initiation of prosecution before the statutory period did not absolve the accused from criminal liability, especially when no payment was made. The court also addressed the argument that the cheques were drawn on a closed account, citing legal precedents to support the view that such actions still constitute an offense under Section 138 of the Act.
Issue 2: Legal Arguments and Precedents
The legal arguments presented by the petitioner's advocate focused on various grounds, including the timing of cognizance, the status of the account on which the cheques were drawn, and the nature of the liability. The advocate relied on specific court decisions to support these arguments. In response, the complainant's advocate contested these submissions and referred to different legal precedents to counter the petitioner's claims. The State's advocate supported the arguments of the complainant's advocate during the proceedings.
Issue 3: Revisional Jurisdiction and Conclusion
The High Court emphasized the limitations of revisional jurisdiction, stating that unless there are glaring features of manifest illegality leading to a gross miscarriage of justice, it is inappropriate for the court to reevaluate evidence already considered by lower courts. After considering the submissions and evidence, the High Court found no merit in the petitioner's arguments and dismissed the criminal revision. The court confirmed the conviction under Section 138 of the Negotiable Instruments Act but set aside the order of sentence of fine. The case was remanded back to the Trial Court to pass necessary orders on the question of sentence and compensation in accordance with the law, without being influenced by the previous reduction of compensation by the Appellate Court.
This summary provides a detailed overview of the judgment, highlighting the key legal issues, arguments, and conclusions reached by the High Court in the case.
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2007 (3) TMI 833
Issues involved: Challenge to order passed by Punjab and Haryana High Court dismissing Letters Patent Appeal, interpretation of Section 8(i)(b) of the Requisition and Acquisition of Immovable Properties Act, 1952, validity of Lok Adalat's order for appointment of arbitrator, applicability of National Legal Services Authorities Act, 1987.
Interpretation of Section 8(i)(b) of the Act:
- A writ petition sought appointment of an arbitrator u/s 8(i)(b) of the Act for land acquisition.
- Lok Adalat initially ordered appointment of arbitrator, later recalled the order, and referred the matter to High Court.
- High Court affirmed Single Judge's order for arbitrator appointment based on Lok Adalat's discussions and terms of settlement.
- Appellant argued High Court's view was untenable, citing precedent on arbitrator appointment.
Validity of Lok Adalat's Order:
- Lok Adalat's authority to dispose of cases is governed by Section 20 of the Legal Services Act.
- Section 20 allows Lok Adalat to arrive at a compromise or settlement between parties.
- Terms "compromise" and "settlement" crucial in determining Lok Adalat's jurisdiction.
- A compromise involves mutual concessions, while settlement is termination of legal proceedings by mutual consent.
- Case lacked compromise or settlement, making Lok Adalat's order for arbitrator appointment invalid.
Applicability of Legal Precedents:
- High Court failed to consider precedent in State of Punjab v. Shri Ganpat Raj regarding Lok Adalat's jurisdiction.
- Matter remitted to High Court for fresh hearing, with a directive to consider the Munsha case judgment.
- High Court instructed to dispose of the matter within four months, without expressing any opinion on case merits.
Conclusion:
- Appeal allowed without costs, emphasizing the need for High Court to reexamine the writ petition in light of relevant legal principles and judgments.
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2007 (3) TMI 832
Issues Involved:
1. Application for bail u/s 439 Cr.P.C. read with Section 37 of the ND & PS Act, 1985.
2. Involvement of the accused in the alleged offence.
3. Comparison with co-accused who was granted bail.
4. Applicability of Section 37 of the ND & PS Act, 1985.
5. Legislative intent and judicial discretion in granting bail under the ND & PS Act.
Summary:
1. Application for Bail u/s 439 Cr.P.C. read with Section 37 of the ND & PS Act, 1985:
The petitioner filed an application for bail for his son, Laishram Surajkumar Singh, who was arrested in connection with a criminal complaint involving contraband Ganja. The application was previously rejected by the Special Court.
2. Involvement of the Accused in the Alleged Offence:
The petitioner argued that his son was not involved in the offence and was merely the driver of the vehicle transporting grocery items. The prosecution contended that the accused admitted his guilt and was involved in transporting the contraband Ganja.
3. Comparison with Co-Accused Who Was Granted Bail:
The petitioner's counsel argued that the co-accused, Thokchom Somi Singh, was granted bail and thus the petitioner's son should also be granted bail. The prosecution countered that the co-accused was granted bail on medical grounds, which is not applicable to the petitioner's son.
4. Applicability of Section 37 of the ND & PS Act, 1985:
The court emphasized that Section 37 of the ND & PS Act imposes stringent conditions for granting bail, requiring the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
5. Legislative Intent and Judicial Discretion in Granting Bail under the ND & PS Act:
The court highlighted that the legislative intent behind the ND & PS Act is to curb drug trafficking and that mere filing of a charge sheet does not entitle the accused to bail. The court must be convinced that the accused is not guilty and will not commit any offence while on bail.
Conclusion:
The court rejected the bail application, stating that the conditions under Section 37 of the ND & PS Act were not satisfied. The court noted that the accused was detained with the contraband Ganja and that the legislative mandate must be followed. The court also clarified that the rejection of the bail application does not bar the petitioner from approaching the appropriate court on other grounds.
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2007 (3) TMI 831
Issues involved: Challenge to judgment questioning correctness of interim order allowing employee to continue till age of 60 years, interpretation of retirement age for employees of Jal Nigam, applicability of regulations and rules governing service conditions.
Interpretation of retirement age: The appeal challenged an interim order allowing an employee to continue till age 60, contrary to standard retirement age of 58. The Division Bench dismissed the appeal, stating the retirement age issue was settled by the Supreme Court in a previous case.
Applicability of regulations and rules: Provisions of Uttar Pradesh Water Supply and Sewerage Act, 1975 and Regulations of Jal Nigam Engineers Service were considered. Section 37 ensured service conditions of employees remained unchanged unless altered by Nigam. Regulation 31 specified that service conditions would be governed by rules applicable to other government servants, including any amendments.
Conclusion: The Court held that the appeal lacked merit and should be dismissed based on the settled retirement age issue and the regulations governing service conditions. The decision in a previous case was reiterated, specifying benefits for employees allowed to continue till age 60.
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2007 (3) TMI 830
Issues Involved:
1. Legality of CIDCO's unilateral cancellation of the allotment.
2. Applicability of Section 23 of the Contract Act, 1872.
3. Availability and adequacy of alternative remedies.
4. Estoppel against CIDCO for resiling from its assurances.
Summary:
1. Legality of CIDCO's Unilateral Cancellation of the Allotment:
The Supreme Court examined whether CIDCO acted within its jurisdiction in cancelling the allotment made to the appellants on the grounds that it was in contravention of its rules and regulations. The Court found that CIDCO had issued a letter of allotment, accepted transfer charges, executed a Deed of Lease, and issued necessary permissions. The appellants had commenced construction based on these assurances. The Court held that CIDCO could not unilaterally cancel the allotment after the appellants had altered their position to their prejudice, citing Regulation 4 of the New Bombay Disposal of Land Regulations, 1975, which allowed CIDCO to dispose of plots based on individual applications.
2. Applicability of Section 23 of the Contract Act, 1872:
CIDCO argued that the allotment was void u/s 23 of the Contract Act as it was opposed to public policy. The Supreme Court rejected this argument, stating that the allotment was made in accordance with the Regulations and that CIDCO's unilateral decision to cancel the allotment was itself opposed to public policy. The Court emphasized that public bodies are bound to carry out representations and promises made by them, relying on which other persons have altered their position to their prejudice.
3. Availability and Adequacy of Alternative Remedies:
The Bombay High Court had dismissed the writ petition on the ground of an alternative remedy being available. The Supreme Court, however, decided to address the merits of the case, noting that the facts of this appeal were different from those remitted to the High Court for reconsideration. The Court held that the availability of an alternate remedy did not bar the filing of a writ petition, especially when the writ petition had been admitted and pleadings completed.
4. Estoppel Against CIDCO for Resiling from its Assurances:
The Supreme Court referred to the principle of estoppel, citing cases like *Century Spinning and Manufacturing Co. Ltd. v. The Ulhasnagar Municipal Council* and *U.P. Rajkiya Nirman Nigam Ltd. v. Indure Private Limited*. The Court held that CIDCO was estopped from resiling from its earlier assurances after the appellants had acted upon them and invested substantial amounts in the development of the allotted plot.
Conclusion:
The Supreme Court allowed the appeal, set aside the order of the High Court, and quashed CIDCO's order dated 29th March 2006 and the Show Cause Notice dated 19th July 2005. The Court ruled that CIDCO could not unilaterally cancel the allotment after the appellants had altered their position based on CIDCO's assurances. There was no order as to costs.
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2007 (3) TMI 829
Issues Involved:
1. Objections under Section 34 of the Arbitration & Conciliation Act, 1996.
2. Limitation period for filing objections.
3. Condensation of delay under Section 34(3) of the Arbitration & Conciliation Act, 1996.
4. Calculation of limitation period.
5. Accountability and efficiency in government departments.
Detailed Analysis:
1. Objections under Section 34 of the Arbitration & Conciliation Act, 1996:
The petitioner filed objections under Section 34 of the Arbitration & Conciliation Act, 1996, challenging the arbitration award dated 25th July, 2005. The objections were filed on 28th November, 2005, beyond the prescribed limitation period. The petitioner also filed an application under Section 34(3) for condensation of delay.
2. Limitation period for filing objections:
The period for filing objections to an arbitration award is three months from the date of receipt of the award, as stipulated by Section 34(3) of the Arbitration & Conciliation Act, 1996. The award was received by the Chief Engineer, Delhi Zone, on 28th July, 2005. Therefore, the three-month period expired on 27th October, 2005.
3. Condensation of delay under Section 34(3) of the Arbitration & Conciliation Act, 1996:
The petitioner sought condensation of delay for a further period of 30 days, arguing that the objections were filed within this extended period, considering 27th November, 2005, was a Sunday. However, the statute mandates that the court cannot entertain an application beyond the additional 30 days. The objections filed on 28th November, 2005, were beyond this permissible period.
4. Calculation of limitation period:
The court examined the calculation of the limitation period, noting that the three months should be construed as calendar months. The period of three months from 28th July, 2005, ended on 27th October, 2005. The additional 30 days expired on 26th November, 2005. Therefore, the objections filed on 28th November, 2005, were beyond the allowable period.
5. Accountability and efficiency in government departments:
The court highlighted the casual approach of the petitioner in handling the matter, noting delays at various stages without proper justification. The court emphasized the need for accountability and efficiency in government departments to avoid such delays, which result in financial liabilities and inefficiency.
Conclusion:
The court dismissed the application for condensation of delay (I.A. No. 9821/2005) and allowed the respondent's application (I.A. No. 1759/2006), dismissing the objections filed by the petitioner as they were beyond the condonable period. The judgment underscores the importance of adhering to statutory timelines and the need for accountability in government functions.
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2007 (3) TMI 828
Issues Involved:
1. Calculation of Ordinary Pension
2. Calculation of Special Additional Pension
Summary:
Re: Ordinary Pension:
The appellant, a retired Judge of the Kerala High Court, contended that his ordinary pension should be calculated based on the emoluments of Rs. 4,237/- per month, which included Basic Pay, Dearness Allowance, and Special Allowance. The State Government argued that "emolument" u/s Rule 62 of Part III of the Kerala Service Rules included only basic pay and dearness pay, not dearness allowance or other allowances. The Supreme Court held that "emolument" for calculating pension should be specific and not expansive, thus only including basic pay and dearness pay. Consequently, the appellant's emolument was rightly taken as Rs. 3,500/- per month, and the consolidated ordinary pension was correctly calculated at Rs. 29,220/- per annum from 1.1.1986.
Re: Special Additional Pension:
Special additional pension is governed by Para 2(b) of Part III of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954. The ceiling on special additional pension was held unconstitutional in M.L. Jain (III), making the ceiling of Rs. 8,000/- invalid. Therefore, the special additional pension should be Rs. 5,600/- per annum from 1.1.1986 and Rs. 12,800/- per annum from 1.11.1986. The Supreme Court upheld this calculation, resulting in a total pension of Rs. 34,820/- per annum from 1.1.1986 and Rs. 42,020/- per annum from 1.11.1986.
Conclusion:
The Supreme Court directed the recalculation and settlement of the pension accordingly, with no recovery of any excess payment from the legal representatives of the deceased appellant. Each party was to bear their respective costs.
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2007 (3) TMI 827
Issues involved: The judgment addresses two main issues raised by the Revenue in the appeal.
First Issue - Net vs. Gross Discounting Income:
The first issue pertains to whether only the net discounting income or the gross discounting income on Promissory Notes and Bills of Exchange is chargeable to interest tax under the provisions of the Interest Tax Act, 1974. The court framed the substantial question of law based on this issue, acknowledging that a substantial question of law does arise in this regard.
Second Issue - Hire Purchase Agreement and Interest Tax:
The second issue involves determining whether interest received on delayed payment of installments under a hire purchase agreement is chargeable to interest tax. The court compared the transaction in question to a previous case involving a leasing transaction, highlighting that a hire-purchase agreement is not akin to a financing agreement. It was concluded that interest received on delayed payment of installments from customers does not constitute interest received on loans or advances, hence not subject to interest tax.
The judgment ultimately dismissed the appeal concerning the second issue, as it was found that no substantial question of law was raised in relation to the interest received on delayed payment of installments. The Revenue was directed to file the necessary paper books as per the High Court rules for the earlier framed question on the first issue regarding net versus gross discounting income.
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2007 (3) TMI 826
Issues Involved:
1. Is the suit maintainable?
2. Is the respondent guilty of cruelty as alleged?
3. Is the petitioner entitled to a decree of divorce as claimed?
4. To what other relief or reliefs is the petitioner entitled?
Detailed Analysis:
1. Is the suit maintainable?
The trial court found the suit to be maintainable as this issue was not pressed by the respondent.
2. Is the respondent guilty of cruelty as alleged?
The trial court concluded that the respondent was guilty of mental cruelty based on several facts:
- Respondent's refusal to cohabit with the appellant.
- Unilateral decision by the respondent not to have children.
- Humiliation and virtual eviction of the appellant from the Minto Park apartment.
- Respondent cooking only for herself, forcing the appellant to eat out or cook for himself.
- Lack of care during the appellant's prolonged illness and bypass surgery.
- Humiliation and eviction of the appellant's loyal servant-cum-cook, Prabir Malik.
The High Court, however, reversed this decision, stating that:
- The respondent had the right to decide when to have a child.
- The appellant failed to disclose when the respondent decided not to have a child.
- The appellant condoned the acts of cruelty by continuing to live with the respondent.
- The High Court disbelieved the appellant on the issue of refusal to cohabit due to lack of specific dates.
- Sleeping in separate rooms did not necessarily mean non-cohabitation.
- Refusal to cook did not amount to mental cruelty considering the respondent's professional status.
- Not meeting the appellant during his illness did not constitute mental cruelty.
The Supreme Court criticized the High Court's approach, emphasizing that the respondent's refusal to cohabit, unilateral decisions, and neglect during illness constituted mental cruelty. The Supreme Court noted that the High Court failed to appreciate the evidence correctly and placed undue emphasis on the respondent's professional status.
3. Is the petitioner entitled to a decree of divorce as claimed?
The Supreme Court analyzed the concept of mental cruelty in detail, referencing various legal definitions and precedents. It concluded that the respondent's conduct, including refusal to cohabit, unilateral decisions, neglect, and humiliation, amounted to mental cruelty. The Supreme Court emphasized that mental cruelty must be assessed based on the entire matrimonial relationship and the cumulative effect of the respondent's conduct. The Court found that the marriage had irretrievably broken down, with the parties living separately for over sixteen and a half years and no interaction between them.
4. To what other relief or reliefs is the petitioner entitled?
The Supreme Court restored the judgment of the learned Additional District Judge, granting the decree of divorce. The Court noted that any further effort to preserve the marriage would be counterproductive and that the High Court erred in reversing the well-reasoned judgment of the trial court. The appeal was disposed of, with each party bearing their own costs.
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2007 (3) TMI 825
Issues Involved:1. Quashing of Criminal Cases u/s 482 of the Code of Criminal Procedure, 1973. 2. Allegations under section 138 of the Negotiable Instruments Act. 3. Responsibility and liability of the petitioner as Additional Director. Issue 1: Quashing of Criminal Cases u/s 482 of the Code of Criminal Procedure, 1973By way of these petitions u/s 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed to quash Criminal Cases No. 400 of 2006, 401 of 2006, 402 of 2006, and 403 of 2006 and the proceedings thereof, pending before the learned Metropolitan Magistrate, Court No.21, Ahmedabad. Issue 2: Allegations under section 138 of the Negotiable Instruments ActRespondent no.1 filed complaints against Dairy Den Limited and others, including the petitioner, stating that the complainant had business relations with the Company and during the course of the transaction, the Company issued three different cheques, which were dishonoured. Therefore, after issuance of notice, he filed the said complaints u/s 138 of the Negotiable Instruments Act. Issue 3: Responsibility and liability of the petitioner as Additional DirectorThe petitioner was appointed as Additional Director on 31st March 2003 and resigned on 15th December 2003. The cheques were dishonoured in 2005, long after the petitioner ceased to be an Additional Director. There is no allegation that the petitioner signed the instruments in question. The court referred to section 138 and sub-section (1) of Section 141 of the Negotiable Instruments Act, emphasizing that liability arises on account of conduct, act, or omission, not merely on account of holding an office. In the case of S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & anr., it was held that it is necessary to aver that at the time the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the company. Similar principles were laid down in Sabitha Ramamurthy & Anr. v. R.B.S. Channabasavaradhya and Saroj Kumar Poddar Vs State (NCT of Delhi). In the present case, the undisputed facts are that the petitioner had resigned as Additional Director with effect from 15th December 2003; he has not signed the instruments in question; the instruments were dishonoured in 2005, and there are no averments in the complaint as to how and in what manner the petitioner was responsible for the conduct of the business of the Company. Therefore, the complaints become bad qua the petitioner, which deserve to be quashed. These petitions are allowed. Criminal Cases No.400 of 2006, 401 of 2006, 402 of 2006, and 403 of 2006 and the proceedings thereof pending before Metropolitan Magistrate, Court No.21, Ahmedabad are quashed and set aside. Rule is made absolute accordingly. The trial Court shall carry out proper verification before issuing summons in a criminal case u/s 138 of the Negotiable Instruments Act. The verification of a complaint on oath by the complainant is the first important step in the process of taking cognizance by the Court upon the complaint. If the complaint is by a Company, the Court should verify whether the person representing the Company has been duly authorized. The Court should also verify the statement of the complainant that all the accused persons named in the complaint are Directors/Partners of the firm/Company in question as on the date of the offence and/or the complaint and whether they are liable under the Negotiable Instruments Act. Registry is directed to circulate a copy of this order to all the Courts below.
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2007 (3) TMI 824
Issues involved:
The petition seeks quashing of criminal proceedings u/s 482 Cr.P.C. based on allegations of offenses u/s 138 of the Negotiable Instruments Act. The main issues revolve around whether the cheques were issued by the petitioner, the existence of a legally recoverable debt, and the jurisdiction of the court to quash criminal proceedings.
Details of the Judgment:
Issue 1: Allegations of Issuance of Cheques and Debt Existence
The petitioner denied owing any amount to the complainant, claiming the cheques were stolen and presented without authorization. The petitioner had informed the police about the theft. The petitioner argued that the complaint lacked legally recoverable debt or liability, thus should be quashed.
Issue 2: Court's Jurisdiction to Quash Criminal Proceedings
The court clarified that while issuing summoning orders for Section 138 offenses, it must ensure the allegations broadly conform to the legal provisions. The court has the power u/s 482 to quash proceedings but should avoid adjudicating disputed facts. Quashing may be appropriate if the complaint lacks essential facts, the trial court lacks jurisdiction, or mala fides are evident.
Precedents and Legal Interpretation
The court referred to precedents emphasizing that the High Court should not pre-judge the existence of a legally enforceable debt in a complaint. The court should not delve into disputed factual matters at the quashing stage. The veracity of the complainant's assertion regarding the cheques should be left for trial consideration.
Conclusion
The court dismissed the petition, stating that no relief could be granted in the current proceedings. The petitioner's defenses regarding the issuance of cheques and absence of liability due to theft are matters for trial consideration and do not warrant interference u/s 482 Cr.P.C.
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2007 (3) TMI 823
Issues involved:
Challenge to order of termination on compassionate grounds based on violation of principles of natural justice.
Issue 1: Violation of principles of natural justice in termination on compassionate grounds
The appeal challenged the order of termination dated 15.3.2003, which was based on the respondent securing the appointment by suppressing facts. The Division Bench of the High Court overturned the Single Judge's decision, citing a lack of natural justice in the termination process. The respondent's appointment as a typist on compassionate grounds was terminated due to non-disclosure of relevant information regarding his mother's employment. The High Court's decision was based on the premise that the termination violated natural justice principles by not providing a show cause notice to the respondent before issuing the order.
Issue 2: Admissibility of termination based on suppression of facts
The undisputed facts revealed that the respondent's mother was employed as a teacher at the time of his application for compassionate appointment, a fact not disclosed by him. Additionally, his wife was already in service as a Mandal Parishad Development Officer when he secured the typist appointment on compassionate grounds. The respondent's application for appointment included a certificate stating that no family member was employed in any government or private organization, which was found to be misleading. The department justified the termination based on the respondent securing the appointment by suppressing crucial information.
Issue 3: Application of natural justice principles in termination cases
The Supreme Court emphasized that the application of natural justice principles is not a rigid standard but depends on the circumstances of each case. In this instance, the respondent's admission of his mother's employment status at the time of application and his wife's employment during his appointment indicated fraudulent means in securing the compassionate appointment. The Court held that in such clear cases of fraud, the necessity of a show cause notice is obviated. The respondent's lack of prejudice from the absence of a show cause notice further supported the decision that the termination did not violate natural justice principles.
Conclusion:
The Supreme Court set aside the Division Bench's order and restored the Single Judge's decision, dismissing the respondent's writ petition. The Court found no merit in the argument that the termination lacked natural justice elements, given the respondent's deliberate suppression of material facts in securing the compassionate appointment.
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2007 (3) TMI 822
The Supreme Court of India dismissed the appeal in the case with citation 2007 (3) TMI 822. Judges were Mr. S.H. Kapadia and Mr. P.K. Balasubramanyan.
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2007 (3) TMI 821
Issues Involved:
1. Evidentiary value of retracted statements.
2. Addition of on-money based on statements.
3. Validity of retraction of statements.
4. Cross-examination rights.
5. Procedural compliance under Sections 131 and 132 of the Income Tax Act.
Issue-wise Detailed Analysis:
1. Evidentiary Value of Retracted Statements:
The revenue challenged the Commissioner (Appeals)'s conclusion that a retracted statement loses its evidentiary value. The Tribunal examined the retraction of statements made under Section 131 and 132 of the Income Tax Act. The Tribunal noted that the original statement was recorded in the presence of the assessee's counsel and contained detailed descriptions of transactions, which were corroborated by other statements. However, the Tribunal found that the retraction was valid as it was made before the conclusion of inquiries and was supported by the lack of independent verification by the assessing officer.
2. Addition of On-Money Based on Statements:
The revenue argued for the addition of on-money based on the assessee's statement and corroborative statements of other individuals involved in the transactions. The Tribunal observed that the assessing officer relied solely on the retracted statement without any corroborative evidence. The Tribunal emphasized that additions cannot be made merely on the basis of a retracted statement without independent verification or corroborative evidence.
3. Validity of Retraction of Statements:
The Tribunal scrutinized the validity of the retraction made by the assessee. It was noted that the retraction was made within a reasonable time and before the conclusion of inquiries. The Tribunal also considered the circumstances under which the original statement was recorded, including allegations of coercion and duress. The Tribunal found that the retraction was valid and that the original statement could not be relied upon without corroborative evidence.
4. Cross-Examination Rights:
The assessee's right to cross-examine individuals whose statements were used against him was a significant issue. The Tribunal highlighted that the assessee was not given the opportunity to cross-examine Shri Subhash Pande, whose statement was crucial in the addition of on-money. The Tribunal reiterated the principle that no addition can be made based on third-party statements without granting the assessee the right to cross-examine, citing the Supreme Court's decision in Kishanchand Chelaram v. CIT.
5. Procedural Compliance under Sections 131 and 132:
The Tribunal examined the procedural compliance under Sections 131 and 132 of the Income Tax Act. It was noted that the original statement was recorded without issuing a proper summons under Section 131(1A), and the subsequent summons were issued after the statement was recorded. The Tribunal found that the procedural lapses and the manner in which the statement was recorded raised doubts about its reliability.
Conclusion:
The Tribunal upheld the Commissioner (Appeals)'s decision to delete the additions made by the assessing officer. It concluded that the retracted statement lacked evidentiary value without corroborative evidence, the procedural lapses undermined the reliability of the statement, and the assessee's right to cross-examine was violated. The Tribunal emphasized that tax assessments must be based on real income and supported by credible evidence, not merely on retracted statements.
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2007 (3) TMI 820
Issues involved: Specific performance of agreement of re-conveyance, impleadment of assignees in execution petition, delay in filing applications, right of assignees to seek re-conveyance.
Specific performance of agreement of re-conveyance: The case involved the execution of sale deeds and subsequent agreement for re-conveyance of properties. Legal representatives of the original parties were brought into the litigation after their demise. Assignees filed applications to be impleaded in the appeal pending in the Supreme Court, but the applications were dismissed as the appeal itself was being disposed of on merits. The Master of the High Court issued orders for possession and re-conveyance of the property, leading to a series of applications and appeals. The Division Bench held that the order dismissing the applications was made without notice to the applicants and without their knowledge, and that the question of limitation was closely linked to the merits of the controversy.
Impleadment of assignees in execution petition: The assignees filed applications to be impleaded as parties in the execution petition, which led to a series of orders and appeals. The Single Judge modified the order of the Master, stating that the applicants were entitled to re-conveyance of the property in dispute in respect of their share, subject to separate proceedings. An appeal by Matha Prasad against this order was dismissed by the Division Bench, leading to a Special Leave Petition in the Supreme Court.
Delay in filing applications: The assignees filed applications to set aside an order and condone a delay of 971 days in filing the applications. The applications were initially dismissed by the learned Judge as being barred by limitation. However, the Division Bench allowed the appeal against this order, stating that the delay had been properly explained by the applicants.
Right of assignees to seek re-conveyance: The Division Bench examined the issues of limitation and the right of the assignees to seek re-conveyance of the property. The Court observed that the order of the learned Single Judge dismissing the applications without notice to the assignees was not sustainable. The Division Bench's decision to go into the merits of the controversy was set aside, and the matters were remanded for a re-hearing on merits, with a request for priority consideration due to the long-pending litigation.
This judgment highlights the importance of procedural fairness, proper notice to parties, and the distinction between issues of limitation and merits in legal proceedings.
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2007 (3) TMI 819
Seeking grant for Enlargement Of bail - Offences punishable u/s 120B r/w Section 489-A to 489-E of IPC - violations of the Section 14 of the Foreigners Act, 1946 - Petitioner/accused is a Nigerian national - contented that he was produced before the magistrate beyond the mandatory period of 24 hours of his arrest - further contended that the Respondent has even after the expiry of 90 days failed to file charge sheet in respect of the alleged offence for which he was arrested - HELD THAT:- It is well known that the court takes cognizance of the crime, not the offender. The argument that the respondent filed a charge-sheet, within time, when it did, is not correct. The charge-sheet pertains only to the offence under the Foreigners Act, for which, as per proviso to Section 167(2) had to be filed within 60 days. But for the other offences, in respect of which the period prescribed, for filing the charge sheet is 90 days, no charges were indicated. Though the right of the investigating agency to file a supplementary charge sheet, or a further report (u/s 173(8) pursuant to order of the court) cannot be disputed, yet the fact remains that there cannot be part charge sheet, as has been contended in the present case.
Therefore, following the decision in S.M.Purtado's case [1996 (5) TMI 442 - KERALA HIGH COURT], as well as the Supreme Court ruling in Uday Mohanlal Acharya [2001 (3) TMI 1032 - SUPREME COURT], it has to be concluded that the petitioner is entitled to be enlarged on bail. This is without prejudice to such other rights the respondents may have in law, to place further materials in support of the case, before the trial Court.
The petition is allowed.
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2007 (3) TMI 818
Maintainability of the PIL - Misappropriation of public funds - Corruption in U.P. Administration - misused power and authority - writ petition filed by a Political opponent - forged documents to project the petitioner as a sponsored person of Congress - Seeking enforcement of fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India - HELD THAT:- The prayer to take appropriate action to prosecute respondent Nos. 2-5 under the provisions of Prevention of Corruption Act, 1988 for acquiring assets more than the known source of their income, in our opinion, cannot at all be countenanced straightaway. The Income-tax Department is concerned only with the source of income and whether the tax was paid or not, therefore, only an independent agency or the CBI could, on Court direction, determine the question of disproportionate assets. We, therefore, direct the CBI to conduct a preliminary enquiry into the assets of all the respondents and after scrutinizing if a case is made out then to take further action in the matter.
The ultimate test, in our view, therefore, is whether the allegations have any substance. An enquiry should not be shut out at the threshold because a political opponent of a person with political difference raises an allegation of commission of offence. Therefore, we mould the prayer in the writ petition and direct the CBI to enquire into alleged acquisition of wealth by respondent Nos. 2-5 and find out as to whether the allegations made by the petitioner in regard to disproportionate assets to the known source of income of respondent Nos. 2-5 is correct or not and submit a report to the Union of India and on receipt of such report, the Union of India may take further steps depending upon the outcome of the preliminary enquiry into the assets of respondent Nos. 2.
In the instant case, it needs to be noted that we are concerned in this case not with the merits of the allegations. The present petition is filed on acquisition of alleged wealth. The test which one has to apply to decide the maintainability of the PIL concerns sufficiency of the petitioner's interest. In our view, it is wrong in law for the Court to judge the petitioner's interest without looking into the subject matter of his complaint and if the petitioner shows failure of public duty, the Court would be in error in dismissing the PIL.
It is also equally true that PIL is not maintainable to probe or enquire into the returns or another taxpayer except in special circumstances. However, when scams take place, allegation of disproportionate assets are required to be looked into. In the case of M.C. Mehta v. Union of India and Ors. (Taj Trapezium Matter) [2004 (3) TMI 817 - SUPREME COURT], the Division Bench of this Court not only directed CBI to investigate the cases against the bureaucrats but also to enquire the outflow of ₹ 17 crores released by the State of U.P. in respect of project undertaken by NPCC. In that matter, the income tax returns of the former Chief Minister and other officials were ordered to be collected by this Court. They were directed to be collected from various income tax authorities. The point to be noted is that the source of the funds plays a crucial role in investigations by CBI in matters involving misappropriation of public funds.
We make it clear that we are not expressing any opinion on the rival claims made by the respective parties under the documents, annexures and other papers filed in these proceedings. The Registry is directed to send in sealed cover the documents marked as 'A' to 'H' and all the copies of the sale deeds and other statements etc. filed by the parties to the CBI. The CBI may take the assistance of Chartered Accountants, Engineers and certified valuers for evaluation of the properties and proceed with the investigation and enquiry in the matter with an open mind.
Thsu, the writ petition is ordered accordingly.
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2007 (3) TMI 817
Issues Involved:
1. Validity of Note-2 of Rule 3 and proviso to Rule 6 of the Andhra Pradesh Police (Civil) Service Rules, 1998.
2. Alleged violation of Articles 14, 16, 21, and 311 of the Constitution of India.
3. Classification and discrimination in the context of accelerated promotions for police officers working in anti-extremist operations.
Issue-wise Detailed Analysis:
1. Validity of Note-2 of Rule 3 and proviso to Rule 6 of the Andhra Pradesh Police (Civil) Service Rules, 1998:
The respondents, who were Inspectors of Police, challenged the amendments to the Andhra Pradesh Police (Civil) Service Rules, 1998, specifically Note-2 of Rule 3 and the proviso to Rule 6, which allowed for accelerated promotions for officers performing outstanding work in anti-extremist operations. The Tribunal declared these provisions violative of Articles 14 and 16 of the Constitution, and the High Court upheld this view, stating that the amendments created a "class within a class" and failed the test of reasonable classification.
2. Alleged violation of Articles 14, 16, 21, and 311 of the Constitution of India:
The High Court found that the amendments did not satisfy the test of reasonable classification and observed that fortuitous circumstances could not be a basis for creating a separate class. It was argued that officers posted in naxal-affected areas received accelerated promotions, while others did not, leading to unequal treatment among similarly situated individuals. The High Court concluded that this classification was not based on an intelligible differentia and thus violated Articles 14 and 16.
3. Classification and discrimination in the context of accelerated promotions for police officers working in anti-extremist operations:
The State argued that the scheme was an incentive to encourage officers to tackle terrorism, contending that the classification was based on intelligible differentia, distinguishing those who faced high risks from those who did not. The State provided detailed guidelines to ensure that recommendations for accelerated promotions were scrutinized at multiple levels to prevent arbitrariness. The Supreme Court found that the guidelines were sufficient to prevent arbitrary promotion and that the classification was reasonable, as it aimed to incentivize officers to undertake hazardous duties. The Court noted that the classification was based on a rational principle, differentiating those willing to take risks from those who preferred routine duties.
Conclusion:
The Supreme Court held that the amendments to the Andhra Pradesh Police (Civil) Service Rules, 1998, were valid and did not violate Articles 14 and 16 of the Constitution. The Court emphasized that the classification was reasonable and based on a rational principle, aiming to incentivize officers to undertake hazardous duties in anti-extremist operations. The Court also noted that sufficient guidelines were in place to prevent arbitrary promotions. Consequently, the orders of the Andhra Pradesh Administrative Tribunal and the High Court were set aside, and the appeals were allowed.
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2007 (3) TMI 816
Issues Involved:
1. Execution of agreements to sell building and machinery.
2. Readiness and willingness of the plaintiff to perform his part of the agreement.
3. Breach of the agreement by the defendant.
4. Enforceability of the agreement regarding the sale of the building.
5. Nature of the suit property as ancestral and/or Joint Hindu Family property.
6. Validity and enforceability of the agreement to sell.
7. Competence of the suit for specific performance regarding the sale of machinery.
8. Proper description of the suit property.
Summary:
Issue 1: Execution of Agreements to Sell Building and Machinery
The Trial Court held that the execution of the agreements Ex.P-1 and P-2, as well as the receipt of earnest money by the defendant, had been proved. The defendant had initially denied the execution of the agreements but later admitted to it, leading to a finding by all three courts to that effect.
Issue 2: Readiness and Willingness of the Plaintiff
The Trial Court found that the plaintiff had always been ready and willing to perform his part of the contracts, whereas the defendant had not been ready and willing to perform his part, thereby committing a breach of the agreement.
Issue 3: Breach of the Agreement by the Defendant
The Trial Court held that the defendant had committed a breach of the agreement by not executing the sale deeds as per the terms of the agreements.
Issue 4: Enforceability of the Agreement Regarding the Sale of the Building
The Trial Court dismissed the suit, holding that the agreement to sell pertaining to 1/8 share in the machinery of the ice factory was not enforceable. The remedy available to the plaintiff was to claim a refund of the earnest money with damages, if any. The second agreement pertaining to the sale of a share in the land and building was also unenforceable as the property was Joint Hindu Family property.
Issue 5: Nature of the Suit Property as Ancestral and/or Joint Hindu Family Property
The Trial Court observed that the entire property had the character of Joint Hindu Family property in the hands of the four brothers. The onus to prove that there was no joint family lay on the plaintiff, which he had been unable to discharge.
Issue 6: Validity and Enforceability of the Agreement to Sell
The High Court reversed the findings of the lower courts, decreeing the suit for specific performance of the agreement Ex.P-1 regarding 1/4 share of the land measuring 29.2/3 marlas on payment of the remaining sale consideration. The suit regarding the sale of 1/4 share in the land measuring 11 marlas and the building, which was Joint Hindu Family property, was dismissed. The suit for specific performance of agreement Ex.P-2 pertaining to the sale of 1/8 share in the machinery was decreed on payment of the remaining sale consideration.
Issue 7: Competence of the Suit for Specific Performance Regarding the Sale of Machinery
The Trial Court held that the agreement to sell pertaining to the machinery was not enforceable, and the plaintiff could at best claim damages or compensation for the breach of this agreement.
Issue 8: Proper Description of the Suit Property
The High Court found that there was no presumption that the property owned by the members of the Joint Hindu Family could be deemed to be of the same character. The onus to prove such a status lay on the party asserting it.
Final Judgment:
The Supreme Court upheld the High Court's decision, agreeing that the onus to prove that funds were available with the family to purchase the land lay on the defendant. The appeal filed by Kulwant Singh was allowed, and the suit was decreed in toto. The appeal filed by the LRs. of Makhan Singh was dismissed.
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