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1974 (12) TMI 84
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... ... ..... dence adduced by the parties. The appellants had adduced evidence to show that the respondents had more shops than the one in question and did not require it bona fide for their personal use. But the evidence adduced on their behalf was found to be too meagre as conceded also before the District Judge on behalf of the appellants. The issue was decided on the evidence adduced by the parties and the defect of pleading was not such that could enable the Court to obliterate and ignore the evidence adduced on the point of bona fide personal necessity of the plaintiffs. The High Court committed no error, rather, it was right in not permitting the appellants to adduce any additional evidence at the second appellate stage. No such prayer had been made in the first appellate Court. We see no justification for making an order of remand in this case as repeatedly asked for by Mr. Manchanda learned Counsel for the appellants. 5. In the result the appeal fails and is dismissed with costs.
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1974 (12) TMI 83
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... ... ..... the trial Court. Besides, Mr. Gill also wanted that the question as to whether only appeal, application, trial, inquiry and investigation, which were pending on the date the new Code came into force, would be governed by the old Code and the subsequent proceedings arising out of them would be governed by the old Code or the new Code, should be decided by us in this revision petition. But, in our view, since we are in the present case concerned only with the revision petition filed against the interlocutory order passed after the new Code came into force, we are not called upon to decide that question, as it does not directly arise. We, therefore, keep that question open for decision whenever an occasion would arise. 23. In the result, we discharge the rule and vacate the stay. 24. Mr. Gill at this stage orally makes an application for leave to approach the Supreme Court against this judgment under Article 134 (1) (c) of the Constitution. We, however, reject this application.
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1974 (12) TMI 82
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... ... ..... establish his defense under Section 19(2)(a)(i). All that he wanted to prove was that Vijay Industries were licensed manufacturers. This was not denied by Raj Kumar in his statement. But if Raj Kumar went on to state something- else in his statement that would not bind the accused. Further we think that the trial magistrate came to the correct conclusion the evidence of this witness. He was not impressed by his testimony. He was of the view that the batch number on the counterpart of the sample closely resembled the code number which the factory used lo allot to their products. The close proximity between the purchase on the 2nd of December 1969 and the date on which the sample was taken i.e. 5th of December 1969 was also taken by the magistrate as a circumstance to conclude in favor of the accused that the there bottles sold by him were out of the purchase he had rnaue from Vijay Fruit Industries. (15) In the result we confirm the order of acquittal and dismiss the appeal.
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1974 (12) TMI 81
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... ... ..... ommitted by the High Court in deciding this question against the appellant. The High Court was also right in holding that the issue as to the acquiring by respondent no. 1 of the right of an occupant was barred on the principles of res judicata in view of the previous decision in the earlier Special Civil Application. Neither the Revenue Tribunal nor the High Court in the earlier proceeding went into the merits of the appellant's claim for resumption of the land. It defeated him on the ground that since respondent no. 1 had acquired the right of an occupant on the abolition and the vesting of the Inam the application under section 32(2) of the Tenancy Act had got to fail. The issue directly and substantially fell for determination in the earlier case. It was decided against the appellant and he cannot re-agitate the very same question in this proceeding. For the reasons stated above the appeal fails and is dismissed with costs to Respondent No. 1 above. Appeal dismissed.
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1974 (12) TMI 80
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... ... ..... , as prayed for, and together with interest thereon at 11 per cent. with quarterly rests, upto the date of plaint and thereafter at the rate of 11 per cent. from the date of suit till the date of payment and the usual mortgage-decree will be passed including Schedules A and B, as the hypotheses or the security from which the plaintiff could realise the decree amount. The appeal is allowed with costs. C.M.P. No. 14045 of 1974. 31. The plaintiff has filed a petition to include a sum of ₹ 3,485.70 to the principal amount claimed on the foot that it has paid the insurance premia in connection with the fire insurance on the suit building and machineries. The plaintiff is entitled to it and this amount will be added to the principal, provided the plaintiff pays the court fee on this account, 32. He would be entitled to interest thereon at 6 per cent. from the date of payment. 33. The appeal and the civil miscellaneous petition are allowed. There will be no order as to costs.
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1974 (12) TMI 79
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... ... ..... ught to have been placed before the District Magistrate. On the other hand, if the criminal cases were pending, it was certainly a material fact which ought to have been brought to the notice of the District Magistrate, because as pointed out by this Court in Sk. Nizamud din v. State of West Bengal (2) "the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate". But there is nothing on record before us to show that this fact of pendency of criminal cases against the appellant was not brought to the attention of the District Magistrate before he made the order of detention. This contention must also, therefore, fail and be rejected. o p /o p 5. These were the only three contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and the rule is discharged. o p /o p
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1974 (12) TMI 78
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... ... ..... or engaging third parties as subagents, or, in any other capacity, to execute them. The provisions of the Control Order are applicable throughout India and are not confined to forward contracts entered into or meant to be carried out in any particular part of India. Their violation is a criminal offence. A claim for indemnification, under Sec. 222 Contract Act, is only maintainable if the acts, which the agent is employed to do, are lawful. Agreements to commit criminal acts are expressly and specifically excluded, by Section 224 of the Contract Act, from the scope of any right to an indemnity. These appeals are, therefore, liable to be dismissed on merits, but, inasmuch as both sides to the unlawful agreements are in "pari delicto", we set aside the decrees for costs awarded to the defendants and direct that the parties will bear their own costs throughout. Subject to this modification of decrees for costs we dismiss in three appeals before us. Appeals dismissed.
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1974 (12) TMI 77
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... ... ..... embly were armed with lathis and speak the common object of which was to assault Ram Palat and Viswanath, the common object may not be to murder Viswanath, the members of the assembly must have known that at least grievous hurt with a sharp cutting weapon was likely to be caused by any member of the assembly in prosecution of the common object. All the appellants other than Ram Kumar could have been convicted by the High Court under Section 326 read with Section 149 of the Penal Code. This indicates that the High Court has taken a very cautious and lenient view in favour of the appellants and has adopted the same course of convicting Ram Kumar alone under Section 302 of the Penal Code and others under Section 323 read with Section 149 of the Code. The conviction of all the appellants for rioting, of Ram Kumar under Section 148 and others under Section 147 of the Penal Code, was also justified, We find no merit in this appeal and it is accordingly dismissed. Appeal dismissed.
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1974 (12) TMI 76
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... ... ..... ntment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class 1, therefore, commenced from 8th April, 1964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class 1. We, therefore, uphold the joint seniority list of the integrated PCMS Class I prepared by the State Government giving seniority to respondents Nos. 3 to 19 over Dr. Jagjit Singh and the appellant and dismiss the appeal. There will be no order as to costs. Appeal dismissed.
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1974 (12) TMI 75
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... ... ..... mpt to discover mala fides or misuse of drastic powers meant to be used honestly, carefully, reasonably and fairly. This Court presumes that they are being so used unless and until the contrary is palpable; but, no such presumption need hamper the efforts which the detaining authorities and the Advisory Boards ought to make to discover the real or the whole and unvarnished truth before determining the need for a preventive detention. At any rate, no mere amour proper or self esteem or any police officer should be allowed to stand in the way of an honest, careful, and impartial investigation and decision. 17. For the reasons given above, while we reject the petitioner's prayer for quashing the detention order, we direct the Government of West Bengal to consider and take an early decision upon the pending fresh representation of the petitioner in accordance with requirements of law and justice as indicated by us above. Subject to this direction, this petition is dismissed.
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1974 (12) TMI 74
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... ... ..... the broad approach, it is within the power and responsibility of Government to take all relevant considerations and exclude extraneous matters in making the final choice for the two posts. We make it clear that there is no obligation to, make any speaking order although there is nothing, which stands in its Way in doing so. The appeals are dismissed, but we express our distress that three years of two rounds of litigation involving young specialists have held up the appointments to medical college posts thus hamparing, the process of medical courses and adversely affecting student interest socio legal syndrome which needs a closer diagnostic procedure. It will therefore, be the duty of the Government not to delay the making of fresh appointments after receipt of such materials, if any as may be produced by the candidates. With these observations, we dismiss the appeals with costs against the State only, and only in favour of Respondent Dr. Mukherjee. P.B.R. Appeal dismissed.
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1974 (12) TMI 73
seniority of existing Govt. servants- determined by the date of their appointmentor by the date of their confirmation. seniority for "Service in an equivalent grade"
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1974 (12) TMI 72
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... ... ..... tion to the court. In Digamber Prasad v. S. L. Dhani (8), a Full Bench of this court refused to quash, at the instance of the tenant, the order of the competent authority under the Slum Areas (Improvement and Clearance) Act, 1956, passed without jurisdiction because the tenant had not paid the rent due from him. This Court refused to exercise the discretion in favour of the tenant for this reason. Even if, therefore, this court has the option to grant or refuse relief to the petitioner, considerations of justice have to be taken into account in exercising the option. There is nothing surprising in this doctrine. As Lord Macmillan writes " in almost every case, except the very plainest, it would be possible to decide the issue either way with reasonable legal justification " and that, in such a case, ethical considerations operate and ought to operate (Law and other Things, page 48). For the above reasons, we dismiss the writ petition with costs. Petition dismissed.
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1974 (12) TMI 71
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... ... ..... ter to the revised seniority list so prepared. The revision of the seniority list shall not, however,. affect those employees who are not impleaded in the proceedings before this Court and who have already been promoted and confirmed in higher grades in the Service. Respondents 1 to 3 will pay the costs of the petitioners in Writ Petition No. 489 of 1972 and respondent No. 1 will pay to the appellants in the Civil Appeals costs through-out. C.M.P. No. 1889 of 1974 regarding delay in filling of the counter-affidavit on behalf of respondents 1 to 3 in the Writ Petition is. allowed. We may observe in the end that it maybe desirable that the time-, of this Court may not be consumed in resolving these complex tangles in conditions of service breeding human discontent and the solution thereof is better left to a fair and proper formulation of precise and' unequivocal statutory rules after examination of the problems with a,. broad humane approach. Petitions and Appeals allowed
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1974 (12) TMI 69
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... ... ..... for strict compliance with this requirement of section 3, sub-section (3). It is a very important requirement intended to secure that the State Government shall have sufficient time for consideration before it decides-and this decision has to be made within twelve days of the making of the order of detention-whether or not to approve the order of detention and the Court would, therefore, insist on strict compliance with it and not condone avoidable delay, even if it be trivial But in the present case the facts stated by the District Magistrate in his affidavit show that be acted with prompt despatch and was not guilty of any avoidable delay. The District Magistrate must, therefore, be held to have sent the report ’forthwith’ as required by section 3, subsection (3). These were the only contentions urged on behalf of the petitioner in support of the petition and since there is no substance in them, the petition fails and the rule is discharged. Petition dismissed.
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1974 (12) TMI 68
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... ... ..... was made out the existence of alternative remedies would not stand in the way of the petitioner seeking enforcement of his fundamental rights. 2. In view of our aforesaid decisions the present demand is clearly without jurisdiction and on a complete misconception of law that Entry 18 of synthetic yarn was attracted to this case. The demand being, therefore, an ultra vires demand, the threat to property by such ultra vires demand would clearly justify the petitioner in approaching this Court and availing of this extraordinary remedy at public law. The existence of alternative remedy would hardly be material in such a case when the tax demand is ultra vires the Act. Therefore, all the petitions are allowed for the same reasons and the rule is made absolute in each case by issuing a writ of certiorari quashing the impugned demand notices and by restraining the authorities from proceeding further in that connection. Rule is accordingly made absolute in each case with costs.
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1974 (12) TMI 67
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... ... ..... ordinary dictionary meaning, is not merely any part of the tobacco plant like its leaves but the plant itself. Therefore, the expression “tobacco”; without any definition would include the entire tobacco plant. But (by the definition in question the expression was intended to be given both some restricted and enlarged meaning. By its enlarged scope both cure and manufactured tobacco are brought into it and merely its natural state. By its restricted scope tobacco plant are any parts of it while the plant is attached to the earth were taken out of its purview. By giving an inclusive definition, it does not appear that the definition was intended to be restricted only to those parts of the tobacco plant mentioned therein. 11. Under these circumstances, I hold that tobacco seeds must be taken as part of the definition in question and therefore they are exempted from the tax. Accordingly, the writ petition is allowed with costs. Advocate’s fee ₹ 100
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1974 (12) TMI 66
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... ... ..... application. The fact that some of the dealers applications were disposed of earlier and refund ordered, would not make the provisions of section 15(b), as amended by Act No. 61 of 1972, discriminatory. Now, that section 15(b) of the Central Act has been amended with retrospective effect from 1st day of October, 1958, all dealers falling within the purview of section 15(b) would be entitled to claim refund only if they satisfy the conditions prescribed by the amended section 15(b). We do not think, there is any hostile or invidious discrimination made by section 15(b) against dealers who are similarly situated. Both the contentions raised by the learned counsel for the petitioner fail and these writ petitions are dismissed. But as the claim for refund is being rejected in view of the amendments of the Central Act, which had come into force subsequent to the filing of the writ petitions, we direct each party to bear its own costs. Advocate s fee Rs. 100. Petitions dismissed.
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1974 (12) TMI 65
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... ... ..... m which date the order of dismissal was effective, whether from the date mentioned in the order or from the date of service or communication of the order to the officer concerned. It was in that connection that the learned Judges held that the order of dismissal comes into effect only from the date it was communicated to the officer. There is nothing in the language of sub-section (3) which is susceptible of an interpretation that communication of an order passed by the Deputy Commissioner should also be within the period of four years. It only contemplates exercise of revisional jurisdiction within a period not exceeding four years. Once that jurisdiction is exercised by passing an order, the fact that it was communicated to the petitioner after the expiry of the period of four years is not at all material. For the reasons recorded we find no merit either in the writ appeal or in the writ petition and they are accordingly dismissed with costs. Appeal and petition dismissed.
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1974 (12) TMI 64
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... ... ..... reference to it in the assessment order taken in conjunction with the facts mentioned above. These facts clearly show that this notice was kept suspended until the Commissioner decided whether to give sanction to prosecute or not. The Commissioner having decided not to grant the sanction, it was open to the individual who was at that date holding office of the Sales Tax Officer (III), Enforcement Branch, Greater Bombay, to proceed to determine whether penalty should be levied on the dealer or not and if he came to the conclusion that penalty should be levied, to impose the penalty and decide what its quantum should be. In the circumstances, we answer the question submitted to us in the negative and hold that it was competent to the officer succeeding the officer who passed the assessment order and, who did not levy any penalty in the said order, to levy penalty thereafter. The respondents will pay to the applicant the costs of this reference. Reference answered accordingly.
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