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1989 (5) TMI 325
Issues Involved:
1. Validity of amended Rule 3 of the Andhra Pradesh Treasury and Accounts Subordinate Service Rules, 1963.
2. Compatibility of the amended Rule 3 with the Andhra Pradesh Public Employment (Organisation of Local Cadres and Regulation of Direct Recruitment) Order, 1975 (Presidential Order).
3. Authority of the State Government under para 5(2) of the Presidential Order to make provisions contrary to the local cadre scheme.
4. Judicial review of the Executive's policy decisions regarding recruitment and transfers.
Issue-wise Detailed Analysis:
1. Validity of Amended Rule 3:
The appeals question whether amended Rule 3, which allows the transfer of Assistant Section Officers from the Finance Department to zonal posts, is valid. The Tribunal initially held that Rule 3, as amended, was not valid because it did not conform to the Presidential Order. The Supreme Court, however, found that the Tribunal erred in its interpretation, as the amended Rule was framed in accordance with para 5(2) of the Presidential Order, which allows the State Government to make provisions for transfers contrary to the local cadre scheme.
2. Compatibility with the Presidential Order:
The Tribunal had declared that the amended Rule 3 was inconsistent with para 5(1) of the Presidential Order, which mandates that zonal cadres be treated as separate units for recruitment and promotion. The Supreme Court clarified that para 5(2) of the Presidential Order grants the State Government overriding powers to make provisions for transfers, which are necessary for public interest and administrative exigencies. Therefore, the amended Rule 3 was not in violation of the Presidential Order, as it was enacted under the powers conferred by para 5(2).
3. Authority under Para 5(2) of the Presidential Order:
The Tribunal's interpretation that the State Government lacked authority to make such amendments was incorrect. The Supreme Court emphasized that para 5(2) explicitly allows the State Government to override the local cadre scheme for administrative reasons. The Tribunal's failure to recognize the full scope of this provision led to its erroneous judgment. The Supreme Court underscored that the State Government's decision to amend Rule 3 was within its rights under para 5(2), which forms part of the Presidential Order's scheme.
4. Judicial Review of Executive Policy Decisions:
The Tribunal's attempt to question the Executive's policy on recruitment and transfers was beyond its jurisdiction. The Supreme Court reiterated that decisions regarding recruitment modes and categories fall within the Executive's domain and are not subject to judicial review unless challenged on grounds of arbitrariness or discrimination. The Tribunal's interference in policy decisions was deemed inappropriate, as these matters are administrative necessities and exigencies.
Conclusion:
The Supreme Court set aside the judgments of the Tribunal, allowing the appeals and declaring Rule 3 of the amended Rule to be valid under the Presidential Order. The Court emphasized the Executive's prerogative in policy decisions regarding recruitment and transfers, reinforcing that such decisions are not subject to judicial scrutiny unless they are arbitrary or discriminatory.
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1989 (5) TMI 324
Issues Involved:
1. Applicability of Section 14(1)(h) of the Delhi Rent Control Act, 1958 to limited companies.
2. Interpretation of the term "residence" in the context of the Act.
3. Whether a company can be considered to "reside" in premises for the purpose of Section 14(1)(h).
4. Impact of the tenant acquiring another residential property on eviction proceedings.
5. Legal implications of agreements between parties in light of statutory provisions.
Detailed Analysis:
1. Applicability of Section 14(1)(h) to Limited Companies:
The court examined whether Section 14(1)(h) of the Delhi Rent Control Act, 1958 applies to residential premises let out to a company. It was argued that a company cannot "reside" or acquire "a residence" as it is a juristic entity. However, the court held that the Act applies to all "premises" and does not differentiate between natural persons and companies. The court noted that the concept of occupation by a company through its employees or agents is recognized under Indian Rent Laws, distinguishing it from English law where the term "residence" implies a domestic quality that a company cannot possess.
2. Interpretation of the Term "Residence":
The court clarified that the term "residence" in Section 14(1)(h) should be understood in the context of the Act, which aims to control rents and evictions in Delhi. The term "residence" is used to indicate the kind of premises, distinguishing residential premises from commercial or other purposes. The court rejected the argument that "residence" should be interpreted to mean actual, physical occupation by a natural person.
3. Whether a Company Can "Reside" in Premises:
The court rejected the argument that a company cannot "reside" in premises. It held that for the purposes of the Act, a company can be a tenant and can enjoy possession of residential premises. The court emphasized that the Act protects possession of premises let for residential purposes, irrespective of whether the tenant is a natural person or a company.
4. Impact of Acquiring Another Residential Property:
The court held that Section 14(1)(h) applies if the tenant, whether a company or a natural person, acquires vacant possession of another residential property. The intention of the tenant or the actual use of the acquired property is irrelevant. The court noted that the clause aims to restrict statutory protection to the tenancy of only one residential premises to address the scarcity of residential accommodation in Delhi.
5. Legal Implications of Agreements Between Parties:
The court dismissed the appellant's plea based on an alleged understanding that the landlord would not seek eviction as long as a loan remained unadjusted. The court held that such agreements cannot override the statutory provisions of the Act, specifically Section 14(1), which overrides any contract between the parties.
Conclusion:
The court concluded that Section 14(1)(h) of the Delhi Rent Control Act, 1958 applies to all residential premises, whether let to a company or a natural person. The term "residence" in this context refers to the type of premises and does not necessitate actual, physical occupation by the tenant. The court upheld the order of the Tribunal and dismissed the appeal with costs.
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1989 (5) TMI 323
Issues Involved:
1. Whether the suit in the present form is maintainable.
2. Whether the plaintiff is not entitled to the relief claimed due to the provisions of Section 27 of the Urban Land (Ceiling Regulation) Act, 1976, and for want of permission from the Land & Development Officer, New Delhi.
3. Whether the plaintiff has committed a breach of the contract as alleged in paras 8 and 9 of the written statement.
4. Whether the plaintiff has been ready and willing and is still ready and willing to perform his part of the contract.
5. In case specific performance is refused to the plaintiff, whether he is entitled to damages in the alternative, and if so, to what amount.
6. Whether the agreement to sell is void and inoperative in view of the reasons stated in preliminary objection No. 4 of the amended written statement dated 12th February 1980.
Issue-wise Detailed Analysis:
Issue 1: Whether the suit in the present form is maintainable
The court noted that the plaintiff initially filed the suit only for possession, reserving the right to claim specific performance after obtaining the requisite permission from the Land and Development Officer. However, the plaintiff later amended the plaint to claim specific performance of the agreement dated 19.12.76. The court found that the objection regarding the form of the suit was no longer available to the defendants due to the amendment. The court ruled in favor of the plaintiff on this issue.
Issue 2: Whether the plaintiff is not entitled to the relief claimed due to the provisions of Section 27 of the Urban Land (Ceiling Regulation) Act, 1976, and for want of permission from the Land & Development Officer, New Delhi
The court addressed the argument that the sale was subject to permission from the Land and Development Office, as stated in the agreement. The court noted that the plaintiff had averred in the plaint that he was always prepared to pay the amount and perform his obligations under the agreement. The court found no valid objection to the maintainability of the suit in the form filed and ruled in favor of the plaintiff on this issue.
Issues 3, 4, and 5: Whether the plaintiff has committed a breach of the contract, whether the plaintiff has been ready and willing to perform his part of the contract, and whether the plaintiff is entitled to damages in the alternative
The court found no substantial dispute regarding the agreement dated 19.12.76, which was signed by all defendants except defendant No. 3, who was represented by his father and attorney, defendant No. 6. The court noted that the main defense raised by the defendants was that the plaintiff wanted to pay Rs. 65,000 from unaccounted money, which was not initially pleaded by the defendants. The court found that the defendants failed to prove this allegation and that the letters purportedly sent by defendant No. 6 to the plaintiff were fabricated.
The court observed that the plaintiff had made every effort to pay the amount and take possession of the property, as evidenced by the telegram, notice, and letters sent by the plaintiff. The court found that the plaintiff had always been ready and willing to perform his part of the contract and that the defendants had been avoiding their obligations. The court also noted that the permission from the Land and Development Office was not a condition precedent for granting a decree for specific performance, citing the Supreme Court's decision in Mrs. Chandnee Widya Vati Madden v. Dr. C.L. Katial & Ors.
The court ruled in favor of the plaintiff on these issues, concluding that the plaintiff did not commit a breach of the contract and had always been ready and willing to perform his part of the contract. The court found no merit in the defendants' argument that it was not equitable to grant specific performance and ruled that the relief of specific performance could not be refused to the plaintiff.
Issue 5A: Whether the agreement to sell is void and inoperative in view of the reasons stated in preliminary objection No. 4 of the amended written statement dated 12th February 1980
The defendants argued that the agreement to sell was void because defendant No. 2, a non-citizen of India, could not transfer immovable property in India without prior permission from the Reserve Bank of India, as per Section 31 of the Foreign Exchange Regulation Act, 1973. The court found that Section 31 only placed a restriction on the transfer or sale of immovable property by a foreign citizen and did not bar entering into an agreement to sell. The court held that the agreement was not void and that the question of permission from the Reserve Bank of India would arise at the stage of executing the sale deed. The court ruled against the defendants on this issue.
Relief:
The court concluded that the plaintiff was entitled to a decree for specific performance of the contract and ruled in favor of the plaintiff on all relevant issues. The court found that the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act and the need for permission from the Land and Development Officer did not bar the grant of a decree for specific performance. The court also ruled that the agreement to sell was not void under Section 31 of the Foreign Exchange Regulation Act.
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1989 (5) TMI 322
Issues Involved:
1. Arbitrary refusal to grant permission for remittance of retiral benefits.
2. Alleged collusion and conspiracy between Enforcement Directorate, RBI, and Income-tax Authorities.
3. Jurisdiction and validity of notices under sections 147 and 148 of the Income-tax Act.
4. Service of notice as a condition precedent under section 149 of the Income-tax Act.
Issue-wise Detailed Analysis:
1. Arbitrary Refusal to Grant Permission for Remittance of Retiral Benefits:
The writ application under consideration centers on the court's arbitrary refusal to grant permission for the remittance of the petitioner's retiral benefits. The petitioner contended that whim and caprice dominated the refusal, while the respondents, being governmental agencies, argued that outstanding dues against the petitioner justified the refusal. The petitioner joined the Indian Steamship Company in 1947 and resigned in 1973. After resignation, the company sought income-tax clearance and permission from the RBI to remit the petitioner's provident fund, gratuity, and leave salary. The RBI initially sought further information due to a pending proceeding under the Foreign Exchange Regulation Act. Despite the Enforcement Directorate clearing the petitioner in April 1977, the RBI continued to withhold permission citing pending inquiries and further information requests from the Enforcement Directorate and Income-tax Department.
2. Alleged Collusion and Conspiracy Between Enforcement Directorate, RBI, and Income-tax Authorities:
The petitioner's counsel argued that there was collusion and conspiracy between the Enforcement Directorate, RBI, and Income-tax Authorities, resulting in mala fide, arbitrary actions. The Enforcement Directorate's proceedings were completed in favor of the petitioner by April 1977. However, the RBI and Income-tax Department continued to withhold permission for remittance, citing pending inquiries. The court noted that the Enforcement Directorate had no objection to the remittance as of October 1978, yet the Income-tax Department informed the RBI in November 1978 to hold payments due to pending proceedings. The court found this action unjustified as no formal proceedings were pending at that time, indicating a concerted move to harass the petitioner.
3. Jurisdiction and Validity of Notices Under Sections 147 and 148 of the Income-tax Act:
The petitioner challenged the jurisdiction and validity of notices under sections 147 and 148 of the Income-tax Act, arguing that the notices were issued without jurisdiction and were not properly served. The court analyzed section 149 and relevant case law, concluding that service of notice is a mandatory requirement. However, the court found that the petitioner had received the notice through his employer and acted upon it, thus waiving any irregularities in service. The court held that the issuance of the notice was within the jurisdiction of the Income-tax Officer (ITO) as the notice had been received and acted upon by the petitioner.
4. Service of Notice as a Condition Precedent Under Section 149 of the Income-tax Act:
The petitioner argued that the notice under section 149 must be served properly, and since a copy was sent by the employer, it was not valid service. The court referred to the Supreme Court's decision in R.K. Upadhyaya v. Shanabhai P. Patel, which distinguished between the issuance and service of notice. The court found that the notice was issued within the limitation period and that the petitioner had acted upon it, thus fulfilling the requirement of service. The court concluded that any irregularity in service did not go to the root of the matter and was waived by the petitioner.
Conclusion:
The court found that the actions of the governmental agencies were arbitrary, harassive, and contrary to the principles of fairness and justice. The continuation of proceedings under sections 147 and 148 was deemed unfair and unjust, especially in light of the Tribunal's findings exonerating the Indian Steamship Company. The rule was made absolute, and each party was ordered to bear their own costs.
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1989 (5) TMI 321
Issues involved:
The judgment involves an appeal under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 against a decision of the Monopolies and Restrictive Trade Practices Commission regarding unfair trade practices in advertisements.
Details of the Judgment:
Issue 1: Alleged Misleading Advertisement
The Commission issued a show cause notice under section 36-B of the Act, alleging that the appellant Company falsely represented collaboration with National Panasonic of Japan in manufacturing 'Novino' batteries, causing loss to consumers. The appellant denied the allegations, stating collaboration with Mitsushita Electric Industrial Ltd. and approval by the Government of India. The Commission upheld the order despite the appellant's explanation.
Issue 2: Interpretation of Unfair Trade Practice
The judgment analyzed whether the appellant's advertisement claiming collaboration with National Panasonic fell under sections 36-B and 36-D of the Act. The definition of 'unfair trade practice' under section 36-A was crucial, focusing on false representations causing consumer loss. The Commission found the advertisement misleading, emphasizing the impact on consumer perception.
Issue 3: Legal Framework and Consumer Protection
The Act aimed to regulate unfair trade practices, including false advertising, to protect consumers. The judgment highlighted the importance of truthful advertising to ensure consumer welfare. The statutory amendments in 1984 introduced sections 36-A to 36-E to address deceptive marketing strategies and promote honesty in business-consumer relationships.
Conclusion:
The Court ruled that the appellant's advertisement, while inaccurately describing the collaboration, did not constitute an unfair trade practice under section 36-A. It suggested the appellant provide accurate information in future ads. The judgment set aside the Commission's decision, allowing the appeal without costs. The Court emphasized the need for truthful advertising to safeguard consumer interests.
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1989 (5) TMI 320
Issues:
1. Validity of the 'Yadast' agreement produced by the respondent.
2. Interpretation of the sale deed and rent agreement in relation to the 'Yadast' agreement.
3. Jurisdiction of the High Court to interfere with findings of fact.
Analysis:
1. The case involved a dispute over a property where the respondent claimed a right to the property based on a 'Yadast' agreement allegedly executed by the appellant's mother. The 'Yadast' agreement was produced for the first time during the suit and was not registered, stamped, or attested. The trial court decreed the suit based on this agreement, but the appellate court found it to be a forged document, invalid for lack of authenticity and timing of production after 23 years. The High Court, in a second appeal, interfered with the lower court's findings, leading to the present appeal to the Supreme Court.
2. The appellant's acquisition of the property through a registered sale deed was a crucial point. The lower appellate court held that the mother of the appellant, who allegedly executed the 'Yadast' agreement, had no right to convey the property, as she was not a party to the sale deed. The court also noted that the respondent was not a party to the sale deed but a tenant under a separate rent agreement. The High Court, however, speculated on a connection between the 'Yadast' agreement and the sale deed, which was not supported by evidence or legal basis.
3. The Supreme Court analyzed the jurisdiction of the High Court to interfere with findings of fact. Section 100 of the Code of Civil Procedure was referenced, emphasizing that the High Court's interference is limited to substantial questions of law. The Supreme Court found that the High Court's intervention was not justified as it did not involve any substantial question of law but rather a misinterpretation of evidence and facts. The Court reinstated the lower appellate court's judgment, rejecting the High Court's interference.
In conclusion, the Supreme Court allowed the appeal, set aside the High Court judgment, and restored the lower appellate court's decision. The Court emphasized that the High Court's interference lacked legal basis and was based on misinterpretation rather than substantial questions of law. The appellant was awarded costs of the appeal.
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1989 (5) TMI 319
Issues Involved:
1. Constitutionality of Section 3 of the East Punjab Urban Rent Restriction Act 1949.
2. Validity of the Notification dated September 24, 1974.
3. Jurisdiction of civil courts to pass decrees of eviction after the expiry of the exemption period.
4. Alleged discrimination between tenants of old and newly constructed buildings.
Summary:
Constitutionality of Section 3:
The appellants challenged Section 3 of the East Punjab Urban Rent Restriction Act 1949, arguing it delegates essential legislative functions to the Central Government without guidelines. The Supreme Court upheld the validity of Section 3, referencing previous decisions like P.J. Irani v. The State of Madras and Sadhu Singh v. The District Board, Gurdaspur & Anr., which confirmed that similar provisions do not suffer from excessive delegation of legislative power.
Validity of the Notification dated September 24, 1974:
The Notification exempted newly constructed buildings in Chandigarh from Section 13 of the Act for five years, allowing civil courts to pass decrees of eviction even after the exemption period expired. The appellants argued that this extended the exemption indefinitely and amended Section 13, contrary to the Act's purpose. The Court rejected this, stating the Notification aimed to incentivize new construction to alleviate accommodation shortages, ultimately benefiting tenants.
Jurisdiction of Civil Courts:
Appellants contended that civil courts lost jurisdiction to pass eviction decrees after the five-year exemption period expired. The Court held that the Notification preserved civil court jurisdiction for suits filed within the exemption period, even if decrees were passed later. This interpretation ensures the exemption's effectiveness, aligning with the Act's objective to encourage new construction and provide more accommodation.
Alleged Discrimination:
The appellants claimed the Notification discriminated between tenants of old and new buildings. The Court, referencing Mohinder Kumar v. State of Haryana & Anr., ruled that the classification based on construction date is rational and serves the Act's purpose. It promotes new construction, addressing accommodation shortages and ultimately benefiting tenants.
Conclusion:
The Supreme Court upheld the constitutionality of Section 3 and the validity of the Notification dated September 24, 1974. It ruled that civil courts retain jurisdiction to pass and execute eviction decrees for suits filed within the exemption period, even if the decrees are issued after the period expires. The Court found no discrimination between tenants of old and new buildings, affirming that the classification has a rational basis and aligns with the Act's objective. All appeals, special leave petitions, and writ petitions were dismissed with costs, and interim orders were discharged.
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1989 (5) TMI 318
Issues involved: Discharge of mortgage, compliance with court order regarding payment.
Discharge of Mortgage: The appellant filed a suit for specific performance of a contract, where the High Court held her liable to discharge the mortgage on the suit property created by the respondent in favor of a bank. The appellant paid the amount directly to the mortgagee, but the High Court deemed it non-compliant with the decree. The Supreme Court directed the appellant to deposit the specified sum with an undertaking to give up certain rights under the mortgage decree. The appellant deposited the amount in the High Court and filed petitions for declaration of compliance with the court order.
Compliance with Court Order: The High Court dismissed the appellant's petitions for declaration of compliance with the court order, stating that the cheque payment made by the appellant was not in due compliance with the court's order. The High Court emphasized adherence to the Original Side rules, particularly Order 31, rules 1 to 6, for depositing money in court. The appellant argued that the cheque payment should be considered as payment made within the stipulated time, citing legal precedent on cheque payments being valid if subsequently honored.
Judgment: The Supreme Court found that the appellant substantially complied with the court order conditions and was entitled to its benefits. The appeal was allowed, setting aside the High Court's order and directing the respondent to execute the sale deed in favor of the appellant. No costs were awarded in the circumstances of the case.
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1989 (5) TMI 317
Issues Involved:
1. Violation of Articles 14 and 19 of the Constitution.
2. Creation of Monopoly and Public Interest.
3. Expropriation of Property without Compensation.
4. Applicability of Estoppel against the State Government.
Issue-Wise Detailed Analysis:
1. Violation of Articles 14 and 19 of the Constitution:
The petitioners contended that the Government orders and contracts were arbitrary, mala fide, and not in public interest, thus violating Articles 14 and 19 of the Constitution. They argued that the grant of forest rights was arbitrary and created a monopoly in favor of private grantees, which was not protected under Article 19(1)(g). The Court referenced previous cases such as Kasturi Lal Lakshmi Reddy v. State of Jammu & Kashmir and Brij Bhushan v. State of Jammu & Kashmir, where similar contentions were dismissed, indicating no substance in the arguments advanced.
2. Creation of Monopoly and Public Interest:
The Act aimed to create a monopoly in favor of J & K Industries Limited by banning private extraction and dealings of resin. The petitioners argued that the monopoly was not in public interest and that the benefits should have been open to all interested parties. The Court examined the provisions of the Act, particularly Sections 3, 4, and 5, which banned private extraction, mandated government-controlled storage and sale, and fixed prices, respectively. The Court found that these provisions created a monopoly that was not justified under the constitutional framework.
3. Expropriation of Property without Compensation:
The petitioners argued that their existing rights amounted to 'property' and could not be expropriated without compensation, violating Article 31(2) of the Constitution. The Court referenced several precedents, including Ramana Dayaram Shetty v. The International Airport Authority of India, Subodh Gopal Bose's case, and Madan Mohan Pathak v. Union of India, to establish that the interests created in favor of the petitioners constituted property. The Court concluded that the Act's provisions, which terminated existing contracts and created a monopoly without providing compensation, were unconstitutional.
4. Applicability of Estoppel against the State Government:
The petitioners argued that they had invested substantial amounts based on the State's invitation and assurances, creating a situation of estoppel. The Court acknowledged that while estoppel cannot be invoked against the legislature, it does apply to the State Government. The Court agreed with the petitioners' submissions, noting that the State's actions gave rise to a fact situation of estoppel, further supporting the petitioners' case.
Conclusion:
The Court declared the provisions of Sections 3 and 4 of the Act to be ultra vires the Constitution, as they violated Article 31(2) by taking away property rights without compensation. Since these provisions were central to the Act, the entire Act was rendered inoperative. The petitions were allowed, and the petitioners were awarded costs for the proceedings.
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1989 (5) TMI 316
Issues Involved:
1. Compliance with High Court's directions in Jyotshana Sharma's case.
2. Validity of the selection process by the competent authority.
3. High Court's competence to issue directions to the State Government.
4. Allegations of favoritism and arbitrariness in the selection process.
5. Method and procedure of holding the entrance examination and viva voce.
6. Reservation and allocation of seats.
Summary:
Issue 1: Compliance with High Court's directions in Jyotshana Sharma's case
The High Court set aside the selection to the MBBS/BDS course for the session 1988-89 on the grounds that the selection process was not held in accordance with its directions in Jyotshana Sharma's case. The High Court had directed the State Government to entrust the selection process to a statutory independent body free from executive influence. The Supreme Court held that the High Court's directions were in the nature of suggestions and that the State Government had substantially complied with these suggestions through SRO 291 and the 1987 Order.
Issue 2: Validity of the selection process by the competent authority
The High Court invalidated the selection process on the ground that the competent authority, as constituted by the High Court's order dated 17th October 1988, did not function as a three-member body. The Supreme Court found that the selection process, including the written test and viva voce, was almost complete by the time the competent authority was reconstituted. The scrutiny and compilation of the selections were done by two members, and there were no specific allegations of favoritism or arbitrariness. The Court held that the absence of one member did not render the selections illegal.
Issue 3: High Court's competence to issue directions to the State Government
The Supreme Court emphasized that the High Court had no authority to issue directions to the State Government to constitute a statutory independent body for selections to medical colleges. The Court stated that the power to enact laws and make policy decisions lies with the legislature and the executive, respectively. The High Court's directions in Jyotshana Sharma's case were beyond its jurisdiction.
Issue 4: Allegations of favoritism and arbitrariness in the selection process
The Supreme Court examined the method and procedure of the entrance examination and viva voce, which were objective and minimized the scope of favoritism. The Court found no specific allegations of favoritism or arbitrariness and upheld the selection process.
Issue 5: Method and procedure of holding the entrance examination and viva voce
The Supreme Court approved the objective method of the entrance examination and viva voce, which involved printed question cards and answer booklets. The Court noted that the process was fair, free from arbitrariness, and minimized human discretion.
Issue 6: Reservation and allocation of seats
The Supreme Court addressed the contention that reserved candidates who secure merit in the general category should consume the seat in the reserved category. The Court held that counting reserved candidates as general candidates was permissible under SRO 272. The Court also addressed issues related to the allocation of seats for sportsmen and the method of dealing with tie cases. The Court found no illegality in the allocation of seats and upheld the selection process.
Conclusion:
The Supreme Court allowed the appeals filed by the State of Jammu & Kashmir and the successful candidates, setting aside the judgment of the Jammu & Kashmir High Court. The writ petitions filed by the unsuccessful candidates were dismissed. The Court upheld the selection process and found no merit in the contentions raised by the unsuccessful candidates.
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1989 (5) TMI 315
Issues Involved:
1. Legality and validity of the detention order.
2. Inordinate and unexplained delay in considering and disposing of the representation of the detenu.
Summary:
Issue 1: Legality and Validity of the Detention Order
The detenu challenged the legality and validity of the detention order passed by the Commissioner of Police, Greater Bombay, u/s 3(2) of the National Security Act 1980, read with clause 4 of the National Security (Conditions of Detention) (Maharashtra) Order, 1980. The detenu was involved in three incidents:
1. On 9.4.1988, the detenu and his associate attacked Laxman Devsingh Gurkha, causing injury with a sword. A case was registered u/s 324 and 114 IPC.
2. On 10.4.1988, the detenu demanded money at the point of choppers from Banwarilal Bhagirath and Babulal Mistry. A complaint was registered u/s 384 and 114 IPC.
3. On 1.8.1988, the detenu was found in possession of a Rampuri knife, leading to a case u/r LAC No. 2912/88 under the Bombay Police Act, 1951.
The detaining authority, satisfied that the detenu's activities were prejudicial to public order, passed the detention order. The detenu's writ petition challenging this order was dismissed by the High Court of Bombay, leading to the present appeal.
Issue 2: Inordinate and Unexplained Delay in Considering the Representation
The appellant's counsel argued that there was an inordinate and unexplained delay by the third respondent (Union of India) in considering the detenu's representation dated 26.9.88, violating Article 22(5) of the Constitution. The representation was made to both the State and Central Governments. The third respondent sought further information from the State Government on 3.10.1988, which was received on 17.10.88. The representation was rejected on 27.10.88, and the decision was communicated on 31.10.88. The delay from 17.10.88 to 27.10.88 was partly due to holidays, but no explanation was provided for the delay on working days.
The Court referred to several precedents emphasizing the constitutional obligation to consider a detenu's representation expeditiously. The delay of 32 days in this case was deemed inordinate and unreasonable, with the explanation provided by the third respondent found unsatisfactory.
Conclusion:
The Supreme Court set aside the impugned detention order due to the breach of the constitutional obligation u/s Article 22(5) of the Constitution. The appeal and writ petition were allowed, and the detenu was directed to be released forthwith.
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1989 (5) TMI 314
Whether it is appropriate for this Court to take the view that any award passed under the Act, that is, the Indian Arbitration Act, 1940 is liable to be remitted or set aside solely on the ground that the arbitrator has not given reasons thus virtually introducing by a judicial verdict an amendment to the Act when it has not been the law for nearly 7/8 decades?
Held that:- Having given our careful and anxious consideration to the contentions urged by the parties we feel that law should be allowed to remain as it is until the competent legisla ture amends the law. In the result we hold that an award passed under the Arbitration Act is not liable to be remitted or set aside merely on the ground that no reasons have been given in its support except where the arbitration agreement or the deed of submission or an order made by the Court such as the one under section 20 or section 21 or section 34 of the Act or the statute governing the arbitration requires that the arbitration or the umpire should give reasons for the award. These cases will now go back to the Division Bench for disposal in accordance with law and the view expressed by us in this decision.
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1989 (5) TMI 313
Whether the CCI has acted in the manner he should act in the present atmosphere of socio-economic development in view of our constitutional commitments?
Held that:- The scheme and the language used, strictly speaking, do not indicate any positive role for the CCI in discharging his functions in respect of grant of sanction. But it has to be borne in mind that he is a part of a State instrumentalities committed to the endeavours of the constitutional aspiration to secure justice, inter alia, social and economic, and also under Article 39(b) & (c) of the Constitution to ensure that the ownership and control of the material resources of the community are so distributed as to best subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. Yet, every instrumentality and functionary of the State must fulfil its own role and should not trespass or encroach/entrench upon the field' of others. Progress is ensured and development helped if each performs his role in the common endeavour.
Having regard to the facts and the circumstances of the case in view of the various facts mentioned hereinbefore, we are of the opinion that there was no undue haste. There was proper application of mind that the sanction was for a new project. Sufficient security for the debentures as was enjoined to be ensured before sanction has been ensured in the facts and the circumstances of this case and guidance provided by means of guidelines has been substantially complied with. There has been no infraction as such of the norms required to be followed in granting the sanction. The challenge to the sanction, therefore, must fail. Appeal dismissed.
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1989 (5) TMI 312
Issues Involved:
1. Whether pantiles are considered "roofing tiles" under the West Bengal Sales Tax Act, 1954.
2. Legality of the notification issued under section 25 of the West Bengal Sales Tax Act, 1954.
3. Allegation of violation of Article 14 of the Constitution of India.
4. The necessity of indicating public interest in the notification.
5. The economic burden on the petitioners due to the inclusion of pantiles under the 1954 Act.
Detailed Analysis:
1. Whether pantiles are considered "roofing tiles" under the West Bengal Sales Tax Act, 1954:
The applicants argued that pantiles should not be classified as "roofing tiles" and thus should not be subject to sales tax under the 1954 Act. They contended that pantiles are primarily used by the poorer sections of society for roofing mud-built houses and should not be equated with roofing tiles used in pucca buildings. The respondents countered that pantiles are indeed a type of roofing tile used to cover the top of houses, irrespective of the type of building. The Tribunal concluded that pantiles are a kind of tile meant for roofing, whether for brick-built or mud-built houses, and thus fall under the category of "roofing tiles" as per the notification under section 25 of the 1954 Act.
2. Legality of the notification issued under section 25 of the West Bengal Sales Tax Act, 1954:
The applicants challenged the notification issued under section 25, arguing it was arbitrary and did not indicate the public interest served by including pantiles under the 1954 Act. The Tribunal noted that the primary purpose of tax levies is to raise funds for public good and that the executive has the authority to determine the commodities to be taxed. The Tribunal found that it is not necessary for the notification to explicitly state the public interest, as the levy of taxes inherently serves public purposes.
3. Allegation of violation of Article 14 of the Constitution of India:
The applicants contended that the notification was violative of Article 14, as it was arbitrary and discriminatory. They cited cases where parallel provisions allowed for discretion that could lead to discrimination. The Tribunal rejected this argument, stating that once the notification under section 25 is issued, the Bengal Finance (Sales Tax) Act, 1941 ceases to apply, eliminating any discretion that could lead to discrimination. Thus, there was no violation of Article 14.
4. The necessity of indicating public interest in the notification:
The Tribunal held that it is not necessary for the notification to indicate the specific public interest being served. The purpose of taxes is to raise funds for public needs, and the notification issued under section 25 is presumed to be in the public interest unless proven otherwise. The Tribunal referenced Supreme Court decisions to support the view that administrative orders do not need to be speaking orders unless explicitly required by statute.
5. The economic burden on the petitioners due to the inclusion of pantiles under the 1954 Act:
The applicants argued that the inclusion of pantiles under the 1954 Act imposed a heavy tax burden on them and their purchasers. They appealed for exemption based on their economic hardship. The Tribunal noted that the applicants' plea for exemption was based on their inability to pay, not on the illegality of the tax demand. The Tribunal emphasized that it is the legislature's role to grant exemptions based on economic conditions, not the judiciary's role to alter the law based on economic hardships.
Conclusion:
The Tribunal dismissed the application, finding no merit in the arguments presented by the applicants. The Tribunal affirmed that pantiles are taxable as roofing tiles under the West Bengal Sales Tax Act, 1954, and the notification under section 25 was valid and not violative of Article 14 of the Constitution. The application was dismissed on contest without any costs.
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1989 (5) TMI 311
The High Court allowed the application under section 45(2) of the Delhi Sales Tax Act, 1975, directing the Tribunal to refer two questions of law for opinion. The questions related to the liability of a dealer to pay tax after a certain date and the interpretation of the Constitution (Forty-sixth Amendment) Act, 1982. The Tribunal had partly allowed the assessee's appeal, stating that the assessee was not liable to pay tax post a specific date. Despite some findings against the assessee, the Tribunal held that the assessee was not liable to pay tax if it had not collected sales tax as it was running a restaurant.
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1989 (5) TMI 310
Issues Involved:
1. Taxability of Amrit Surti zarda.
2. Legality of Notifications dated 5th February 1968 and 1976.
3. Classification of zarda as a separate commodity from chewing tobacco.
4. Reasonableness of the classification made by the State Government.
Issue-Wise Detailed Analysis:
1. Taxability of Amrit Surti zarda:
The petitioner, a registered dealer under the Orissa Sales Tax Act, 1947, contended that Amrit Surti zarda should be treated as tax-free chewing tobacco. However, the sales tax authority assessed Amrit Surti zarda to sales tax for the assessment years 1974-75 to 1977-78. The Sales Tax Tribunal upheld this assessment. The Court examined whether Amrit Surti zarda is chewing tobacco and concluded that it is not, based on the notifications and definitions provided in the relevant statutes.
2. Legality of Notifications dated 5th February 1968 and 1976:
The petitioner argued that the notifications treating zarda as a separate commodity from chewing tobacco were illegal. The Court reviewed the notifications and found that the amendments made by Notification No. 3604-CTA-38/67-F dated 5th February 1968, and Notification No. SRO 1206/76 dated 3rd December 1976, were within the legal framework. These notifications specified that tobacco and all its products, except for items like zarda, were tax-free, thereby making zarda taxable.
3. Classification of zarda as a separate commodity from chewing tobacco:
The Court referred to various precedents, including the decisions in [1975] 35 STC 179 (State of Orissa v. Samsuddin Akbar Khan & Co.) and [1988] 68 STC 92 (SC) (State of Orissa v. Radheshyam Gudakhu Factory), which discussed the broad definition of "tobacco" under the Central Excises and Salt Act, 1944. However, the Orissa Sales Tax Act adopted a more restricted definition, treating items like zarda separately from tobacco. The Court emphasized that the definitions and classifications under the Orissa Act were distinct and valid.
4. Reasonableness of the classification made by the State Government:
The Court considered whether the classification of zarda as a separate commodity from tobacco was reasonable. It noted the significant price difference between zarda and tobacco, the distinct manufacturing processes, and the different consumer bases. The Court concluded that the classification was rational and not arbitrary. The decision in [1989] 1 SVLR(T) 158 (Arya Vaidya Pharmacy v. State of Tamil Nadu) was distinguished on the grounds that the circumstances and statutory provisions in that case were different.
Conclusion:
The writ petition was dismissed, and the Court upheld the taxability of Amrit Surti zarda as a separate commodity from chewing tobacco. The notifications treating zarda as taxable were found to be legal, and the classification made by the State Government was deemed reasonable. The Court found no grounds to strike off zarda from the relevant entry and treat it as tax-free tobacco.
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1989 (5) TMI 309
Issues:
1. Imposition of penalty for late filing of returns and non-depositing tax within prescribed time under the U.P. Sales Tax Act.
2. Justification of penalty imposition by the assessing authority and subsequent appeal decisions.
3. Consideration of reasonable cause for late filing and non-depositing of tax.
4. Application for extension of time and its relevance to penalty imposition.
5. Impact of interest deposited by the assessee on penalty imposition.
6. Bona fides of the assessee in filing returns and depositing tax.
7. Modus operandi of submitting returns from a different office and its acceptance.
8. Dispute over penalty imposition based on the timing of return despatch.
9. Analysis of delay in filing returns and its significance in penalty imposition.
The judgment involves the imposition of penalties on a public limited company for late filing of returns and non-depositing tax within the prescribed time under the U.P. Sales Tax Act. The company had a factory in Uttar Pradesh and a branch in Allahabad, which was separately registered. The assessing authority imposed penalties, which were upheld but reduced by the Deputy Commissioner (Appeals) and the Tribunal. The primary issue was whether there was a reasonable cause for the delays. The court analyzed the provisions of section 15-A(1)(a) of the Act, emphasizing the necessity of showing a lack of reasonable cause for penalty imposition. The counsel for the assessee argued that the Tribunal did not establish the absence of reasonable cause. The court referenced a previous case to support the requirement of such a finding for penalty imposition.
Furthermore, the court considered the relevance of applying for an extension of time and whether its absence could justify penalty imposition. The court agreed that the mere non-filing of an extension application does not equate to the absence of a reasonable cause. The assessee's argument that interest deposited under section 8(1) of the Act compensated for any revenue loss due to late filings was also discussed. The court referred to a previous decision where it was held that if the tax due is deposited with interest, penalty imposition is unwarranted.
The court also examined the assessee's bona fides in filing returns and depositing tax, noting instances where bank drafts were prepared before the due date. The court rejected the grounds put forth by the Revenue, emphasizing that the assessee's actions demonstrated good faith. Additionally, the court addressed the modus operandi of submitting returns from a different office, which was accepted, and dismissed the argument that penalties should differ based on return despatch timing. The court found the delays in filing returns to be nominal, with only one significant delay of 45 days. Ultimately, the court set aside the Tribunal's decision, ruling in favor of the assessee and knocking off the imposed penalties.
In conclusion, the court allowed the revisions, set aside the Tribunal's orders, and removed the penalties imposed on the assessee. The parties were directed to bear their own costs, and the order was to be sent to the Tribunal for necessary action as per section 11(8) of the Act.
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1989 (5) TMI 308
Issues Involved:
1. Constitutional validity of Section 37 of the Haryana General Sales Tax Act, 1973.
2. Applicability of various sub-sections of Section 37 to the petitioners.
Detailed Analysis:
1. Constitutional Validity of Section 37 of the Haryana General Sales Tax Act, 1973:
The petitioners challenged the constitutional validity of Section 37 of the Haryana General Sales Tax Act, 1973, and Rule 45 of the Haryana General Sales Tax Rules, 1975, arguing that these provisions violate Articles 14, 19, 301, and 304 of the Constitution of India. The main contention was that the provisions lead to harassment and unnecessary detention of goods and vehicles, causing loss and inconvenience to the petitioners.
The court referred to the Supreme Court's decision in Delite Carriers (Regd.) v. State of Haryana [1990] 77 STC 170, where the vires of Section 37 and Rule 45 were upheld. It was noted that the Supreme Court had explained the purpose of establishing check-posts and introducing provisions in sales tax laws to facilitate the inspection of goods transported through states. The court cited the case of Sodhi Transport Co. v. State of U.P. [1986] 62 STC 381, where analogous provisions in the U.P. Sales Tax Act, 1948, were upheld. The provisions were deemed necessary for checking tax evasion and providing machinery for levying tax, thus not unconstitutional.
2. Applicability of Various Sub-sections of Section 37 to the Petitioners:
The petitioners argued that the provisions of Section 37, except the first proviso to sub-section (4), should not apply to them. Section 37 outlines the establishment of check-posts or barriers and inspection of goods in transit to prevent tax evasion.
- Sub-section (1): Allows the establishment of check-posts or barriers at notified places.
- Sub-section (2): Requires the person in charge of goods or the driver to carry relevant documents and produce them for inspection.
- Sub-section (3): Obligates the driver or person in charge to stop the vehicle for inspection.
- Sub-section (4): Mandates furnishing a declaration in duplicate before entering or leaving the state and producing it at the exit point.
- First Proviso to Sub-section (4): Specifically deals with goods carriers passing through the state, requiring them to furnish a declaration and deliver it within 24 hours at the exit point, failing which a penalty is imposed.
The petitioners contended that this proviso should be read independently, exempting them from the other sub-sections. However, the court disagreed, stating that the proviso is an exception to the general principle in sub-section (4) and does not function as an independent clause. The court emphasized that the provisions of Section 37 apply to all goods carriers entering or passing through Haryana, regardless of whether they unload or load goods in the state.
The respondents argued that these provisions are essential for detecting tax evasion, as goods are sometimes transported without proper documentation or in excess of the declared quantity. The court found these arguments valid, noting that the provisions facilitate quick transit of goods while ensuring compliance with tax laws.
Conclusion:
The court dismissed the writ petitions, finding no merit in the challenges raised. The provisions of Section 37 of the Haryana General Sales Tax Act, 1973, and Rule 45 of the Haryana General Sales Tax Rules, 1975, were upheld as constitutional and applicable to the petitioners. The court also noted that some petitioners had previously raised similar issues in the Supreme Court, which had been rejected, thus barring them from re-raising these pleas due to the principle of constructive res judicata.
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1989 (5) TMI 307
Issues Involved:
1. Whether the sports magazine "Khela" qualifies as a "newspaper" under the Bengal Finance (Sales Tax) Act, 1941.
2. Entitlement of the petitioner to purchase raw materials at a concessional rate for the publication of "Khela".
3. Interpretation of the term "newspaper" in various statutes.
4. Maintainability of the writ application in view of a subsequent order dated 4th November, 1988.
Issue-wise Detailed Analysis:
1. Qualification of "Khela" as a Newspaper:
The primary issue is whether the sports magazine "Khela" qualifies as a "newspaper" under the Bengal Finance (Sales Tax) Act, 1941. The petitioner argued that "Khela" is a newspaper as it is registered with the Registrar of Newspapers of India and meets the definition of a newspaper under the Press and Registration of Books Act, 1867, and the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The Commercial Tax Officer, however, refused to consider "Khela" as a newspaper, stating that it is published in book form and does not cater to daily news. The court referred to various statutes and dictionary definitions, concluding that "Khela" publishes news on sports and comments on such news, thus fitting the definition of a newspaper.
2. Entitlement to Purchase Raw Materials at Concessional Rate:
The petitioner claimed entitlement to purchase raw materials at a concessional rate for the publication of "Khela" under the Bengal Finance (Sales Tax) Act. The Commercial Tax Officer had denied this benefit, arguing that "Khela" is not a newspaper. The court, however, found that since "Khela" qualifies as a newspaper, the petitioner is entitled to purchase raw materials at a concessional rate.
3. Interpretation of the Term "Newspaper":
The court considered the definitions of "newspaper" in various statutes, including the Press and Registration of Books Act, 1867, the Newspaper (Price and Page) Act, 1956, and the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. The court also referred to dictionary definitions, concluding that a newspaper is a printed periodical containing public news and comments on such news. The court cited several judicial precedents, including decisions from the Orissa High Court and the Supreme Court, to support its interpretation that "Khela" fits the definition of a newspaper.
4. Maintainability of the Writ Application:
The respondents argued that the writ application was not maintainable due to a subsequent order dated 4th November, 1988, which was not challenged in the application. The court noted that the petitioner had requested a direction to issue declaration forms for purchasing raw materials for "Khela" while the writ application was pending. The court had directed the respondent to consider this request, and the subsequent order refused to issue the forms. The court found that the main issue was whether "Khela" is a newspaper, and since it concluded that "Khela" is a newspaper, the petitioner is entitled to the benefits sought.
Conclusion:
The court held that "Khela" should be treated as a newspaper, entitling the petitioner to purchase raw materials at a concessional rate. The court set aside the order dated 22nd July, 1988, and the subsequent order dated 4th November, 1988, to the extent that it restrained the petitioner from using the forms to purchase raw materials for "Khela". The writ application was allowed, with no order as to costs. The court refused the respondent's request for a stay of the order.
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1989 (5) TMI 306
Issues:
1. Whether the materials supplied by the assessee to contractors constitute a sale liable to sales tax or a works contract.
Analysis:
The judgment involves two revisions under the U.P. Sales Tax Act, 1948, challenging the Sales Tax Tribunal's decision regarding the assessment year 1985-86. The assessee, a State Government Corporation, engaged in construction activities and supplied materials like cement and steel to contractors under strict terms and conditions. The contracts specified that the materials supplied by the assessee remained its property, and any misuse would have penal consequences. The Sales Tax Officer imposed sales tax on the supplies, leading to appeals and subsequent tribunal intervention.
The primary issue for consideration was whether the supply of cement and steel by the assessee to contractors constituted a sale liable to tax or a works contract. The terms of the contracts between the assessee and contractors were crucial in determining the nature of the transactions. The contracts outlined conditions for material use, recovery for excess use, storage requirements, and damage accountability, indicating a close supervision by the assessee over the materials supplied. The assessee contended that it was not a dealer under the Sales Tax Act and the supplies were not sales but part of works contracts.
The counsel for the assessee argued that the materials supplied were integral to the construction activities, and reliance was placed on a previous court decision with similar facts. It was emphasized that the entire contract needed to be considered to determine if it constituted a works contract or a sale. The Revenue's counsel acknowledged that the tribunal had not considered the relevant court decision and agreed that a fresh decision was necessary in light of the legal precedent cited by the assessee.
In the final judgment, both revisions were allowed, setting aside the tribunal's order. The tribunal was directed to reexamine the case considering the observations made in the judgment and the legal principles established in the court decision referenced by the parties. Each party was instructed to bear their own costs, and a copy of the order was to be sent to the relevant tribunal as per statutory requirements.
Overall, the judgment focused on the distinction between a works contract and a sale concerning the supply of materials in construction activities, emphasizing the need to consider the contract terms comprehensively to determine the nature of the transaction for sales tax purposes.
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