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Sri. Benson George Vs. Reliance General Insurance Co.Ltd.& Anr | as 100% the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 4.2 It is submitted that therefore in the facts and circumstances of the case no error has been committed by the High Court in awarding Rs.1,00,000/- towards loss of amenities and happiness. 4.3 It is further submitted by learned counsel appearing on behalf of the Insurance Company that decision of this Court in the case of Raj Kumar (supra) has been subsequently considered and followed by this Court in the case of Lalan D. alias Lal and Anr. vs. Oriental Insurance Company Limited, (2020) 9 SCC 805 . 4.4 It is also contended by learned counsel for the Insurance Company that in the facts and circumstances of the case the High Court has not committed any error in reducing the interest from 9% per annum to 6% per annum. 5. We have learned counsel for the respective parties at length. 6. It is not in dispute and it has come on record that in a vehicular accident the claimant sustained grievous brain injuries. That he was hospitalized for a number of months. That he undergone MRI, CT scans and X-rays. That he sustained right temporal SDH, multiple hemorrhagic contusions on temporal lobe, left parieto-occipital lobe, left parietal lobe and bilateral frontal lobe, hemorrhagic contusions left thalamic region s/o grade II diffuse axonal injury, moderate SAH in right sylvian cistern, moderate diffuse cerebral edema, multiple comminuted and variably depressed fracture in left squamous temporal and left parietal bone, bilateral occipital bone fracture, right sub-occipital SDH. Finally diagnosed that traumatic brain injury sequelae-s/p frontotemporoparietal hemicraniectomy and right lower limb deep vein thrombosis. That the claimant underwent multiple surgeries. Left fronto- temporoparietal decompressive hemicraniectomy with lax duroplasty done on 02.01.2013. He underwent Percutaneous Endoscopic Gastrotomy under GA. Since the petitioner sustained very severe injuries to the Brain, he was shifted to the Brain & Spine Centre, Chemmanakary, Kerala, where he was admitted from 16.03.2013 to 03.05.2013. He underwent right side VP shunting (Chabra medium pressure regular) on 25.03.2013 under GA. That the claimant is still in coma and totally bedridden. 7. Considering the prolonged hospitalization and medical treatment and that the claimant underwent multiple surgeries, we are of the opinion that the High Court has erred in awarding Rs.2,00,000/- only under the head pain and suffering. The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life. 7.1 In the facts and circumstances of the case due to the prolonged hospitalization and the multiple brain injuries/injuries sustained by the claimant and that he is still in coma and is bedridden, we are of the opinion that if the amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs), it can be said to be a reasonable amount under the head pain, shock and suffering. 7.2 Similarly, the amount of Rs.1,00,000/- awarded by the High Court under the head loss of amenities and happiness can also be said to be on lower side. As observed hereinabove no amount can compensate the loss of amenities and happiness more particularly a person who is in coma since number of years and is bedridden for the entire life. In the facts and circumstances of the case, we are of the opinion that if the amount of compensation under the head loss of amenities and happiness is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs) from that of Rs.1,00,000/- as awarded by the High Court, it can be said to be a reasonable amount under the head loss of amenities and happiness. 8. Now with regard to reliance placed upon the decisions of this Court in the case of Raj Kumar (supra) and Lalan D. alias Lal (supra), relied upon by learned counsel appearing on behalf of the Insurance Company is concerned, we are of the opinion that the amount of compensation to be awarded under the heads, pain and suffering and loss of amenities and happiness, there cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. So far as awarding compensation on the head of pain, shock and suffering is concerned, multiple factors are required to be considered namely, prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering. 8.1 Similarly, loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post-accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case. Therefore, in the facts and circumstances of the present case when the claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life, as observed above the amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/- only is unreasonable and meagre. 8.2 Now so far as the impugned judgment and order passed by the High Court reducing the amount of interest from 9% to 6% per annum is concerned, in the peculiar facts and circumstances of the case, the same is not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India. | 1[ds]7. Considering the prolonged hospitalization and medical treatment and that the claimant underwent multiple surgeries, we are of the opinion that the High Court has erred in awarding Rs.2,00,000/- only under the head pain and suffering. The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life.7.1 In the facts and circumstances of the case due to the prolonged hospitalization and the multiple brain injuries/injuries sustained by the claimant and that he is still in coma and is bedridden, we are of the opinion that if the amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs), it can be said to be a reasonable amount under the head pain, shock and suffering.7.2 Similarly, the amount of Rs.1,00,000/- awarded by the High Court under the head loss of amenities and happiness can also be said to be on lower side. As observed hereinabove no amount can compensate the loss of amenities and happiness more particularly a person who is in coma since number of years and is bedridden for the entire life.In the facts and circumstances of the case, we are of the opinion that if the amount of compensation under the head loss of amenities and happiness is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs) from that of Rs.1,00,000/- as awarded by the High Court, it can be said to be a reasonable amount under the head loss of amenities and happiness.8. Now with regard to reliance placed upon the decisions of this Court in the case of Raj Kumar (supra) and Lalan D. alias Lal (supra), relied upon by learned counsel appearing on behalf of the Insurance Company is concerned, we are of the opinion that the amount of compensation to be awarded under the heads, pain and suffering and loss of amenities and happiness, there cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. So far as awarding compensation on the head of pain, shock and suffering is concerned, multiple factors are required to be considered namely, prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering.8.1 Similarly, loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post-accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case.Therefore, in the facts and circumstances of the present case when the claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life, as observed above the amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/- only is unreasonable and meagre.8.2 Now so far as the impugned judgment and order passed by the High Court reducing the amount of interest from 9% to 6% per annum is concerned, in the peculiar facts and circumstances of the case, the same is not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India. | 1 | 1,961 | 647 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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as 100% the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 4.2 It is submitted that therefore in the facts and circumstances of the case no error has been committed by the High Court in awarding Rs.1,00,000/- towards loss of amenities and happiness. 4.3 It is further submitted by learned counsel appearing on behalf of the Insurance Company that decision of this Court in the case of Raj Kumar (supra) has been subsequently considered and followed by this Court in the case of Lalan D. alias Lal and Anr. vs. Oriental Insurance Company Limited, (2020) 9 SCC 805 . 4.4 It is also contended by learned counsel for the Insurance Company that in the facts and circumstances of the case the High Court has not committed any error in reducing the interest from 9% per annum to 6% per annum. 5. We have learned counsel for the respective parties at length. 6. It is not in dispute and it has come on record that in a vehicular accident the claimant sustained grievous brain injuries. That he was hospitalized for a number of months. That he undergone MRI, CT scans and X-rays. That he sustained right temporal SDH, multiple hemorrhagic contusions on temporal lobe, left parieto-occipital lobe, left parietal lobe and bilateral frontal lobe, hemorrhagic contusions left thalamic region s/o grade II diffuse axonal injury, moderate SAH in right sylvian cistern, moderate diffuse cerebral edema, multiple comminuted and variably depressed fracture in left squamous temporal and left parietal bone, bilateral occipital bone fracture, right sub-occipital SDH. Finally diagnosed that traumatic brain injury sequelae-s/p frontotemporoparietal hemicraniectomy and right lower limb deep vein thrombosis. That the claimant underwent multiple surgeries. Left fronto- temporoparietal decompressive hemicraniectomy with lax duroplasty done on 02.01.2013. He underwent Percutaneous Endoscopic Gastrotomy under GA. Since the petitioner sustained very severe injuries to the Brain, he was shifted to the Brain & Spine Centre, Chemmanakary, Kerala, where he was admitted from 16.03.2013 to 03.05.2013. He underwent right side VP shunting (Chabra medium pressure regular) on 25.03.2013 under GA. That the claimant is still in coma and totally bedridden. 7. Considering the prolonged hospitalization and medical treatment and that the claimant underwent multiple surgeries, we are of the opinion that the High Court has erred in awarding Rs.2,00,000/- only under the head pain and suffering. The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life. 7.1 In the facts and circumstances of the case due to the prolonged hospitalization and the multiple brain injuries/injuries sustained by the claimant and that he is still in coma and is bedridden, we are of the opinion that if the amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs), it can be said to be a reasonable amount under the head pain, shock and suffering. 7.2 Similarly, the amount of Rs.1,00,000/- awarded by the High Court under the head loss of amenities and happiness can also be said to be on lower side. As observed hereinabove no amount can compensate the loss of amenities and happiness more particularly a person who is in coma since number of years and is bedridden for the entire life. In the facts and circumstances of the case, we are of the opinion that if the amount of compensation under the head loss of amenities and happiness is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs) from that of Rs.1,00,000/- as awarded by the High Court, it can be said to be a reasonable amount under the head loss of amenities and happiness. 8. Now with regard to reliance placed upon the decisions of this Court in the case of Raj Kumar (supra) and Lalan D. alias Lal (supra), relied upon by learned counsel appearing on behalf of the Insurance Company is concerned, we are of the opinion that the amount of compensation to be awarded under the heads, pain and suffering and loss of amenities and happiness, there cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. So far as awarding compensation on the head of pain, shock and suffering is concerned, multiple factors are required to be considered namely, prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering. 8.1 Similarly, loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post-accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case. Therefore, in the facts and circumstances of the present case when the claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life, as observed above the amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/- only is unreasonable and meagre. 8.2 Now so far as the impugned judgment and order passed by the High Court reducing the amount of interest from 9% to 6% per annum is concerned, in the peculiar facts and circumstances of the case, the same is not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India.
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7. Considering the prolonged hospitalization and medical treatment and that the claimant underwent multiple surgeries, we are of the opinion that the High Court has erred in awarding Rs.2,00,000/- only under the head pain and suffering. The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life.7.1 In the facts and circumstances of the case due to the prolonged hospitalization and the multiple brain injuries/injuries sustained by the claimant and that he is still in coma and is bedridden, we are of the opinion that if the amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs), it can be said to be a reasonable amount under the head pain, shock and suffering.7.2 Similarly, the amount of Rs.1,00,000/- awarded by the High Court under the head loss of amenities and happiness can also be said to be on lower side. As observed hereinabove no amount can compensate the loss of amenities and happiness more particularly a person who is in coma since number of years and is bedridden for the entire life.In the facts and circumstances of the case, we are of the opinion that if the amount of compensation under the head loss of amenities and happiness is enhanced to Rs.10,00,000/- (Rupees Ten Lakhs) from that of Rs.1,00,000/- as awarded by the High Court, it can be said to be a reasonable amount under the head loss of amenities and happiness.8. Now with regard to reliance placed upon the decisions of this Court in the case of Raj Kumar (supra) and Lalan D. alias Lal (supra), relied upon by learned counsel appearing on behalf of the Insurance Company is concerned, we are of the opinion that the amount of compensation to be awarded under the heads, pain and suffering and loss of amenities and happiness, there cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. So far as awarding compensation on the head of pain, shock and suffering is concerned, multiple factors are required to be considered namely, prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering.8.1 Similarly, loss of amenities and happiness suffered by the claimant and his family members also depend upon various factors, including the position of the claimant post-accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case.Therefore, in the facts and circumstances of the present case when the claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life, as observed above the amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/- only is unreasonable and meagre.8.2 Now so far as the impugned judgment and order passed by the High Court reducing the amount of interest from 9% to 6% per annum is concerned, in the peculiar facts and circumstances of the case, the same is not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India.
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Rama Narang Vs. Ramesh Narang | of power under Section 389(1) of the Code granting stay of the order of conviction so as not to result in the disqualification envisaged by Section 267 of the Companies Act, it would not be open to the Bombay High Court in collateral civil proceedings to overlook it on the ground that the scope of Section 389(1) of the Code did not extend to granting of such a stay order. However, it was open to the Bombay High Court to interpret the order in the background of the fact that in the application seeking the interim order there was no mention whatsoever that stay of conviction was sought to avoid the disqualification under Section 267 of the Companies Act. It was perfectly open to the Bombay High Court, without questioning the legality and validity of the interim order passed by the Delhi High Court, to examine it in the context of the averments in the application by which the interim order was sought. We are, therefore, of the opinion that the Bombay High Court in collateral civil proceedings could not overlook the interim order passed by the Delhi High Court on the ground that the latter had no power or jurisdiction to grant such an order having regard to the scope and ambit of Section 389(1) of the Code. However, it was perfectly open to the Bombay High Court to interpret the scope of the interim stay granted by the Delhi High Court in the context of the averments made in the application seeking such an order.18. Be that as it may, we have, on interpretation of the interim order passed by the Delhi High Court in the context of the averments made in the application seeking such an order, come to the conclusion that the Delhi High Court while granting stay of the impugned judgment did not and could not have intended to stay the operation of the disqualification under Section 267 of the Companies Act consequent upon conviction. To that extent the interpretation put by the Bombay High Court on the interim stay is unassailable. We are afraid the appellant did not approach the Delhi High Court with clean hands if the intention of obtaining the stay was to avoid the disqualification under Section 267 of the Companies Act. That is why we have said that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands. It would have been so if the intention of the appellant in obtaining the interim stay was to avoid the disqualification he was likely to incur by the thrust of Section 267 of the Companies Act. If that was his intention he was clearly trying to hoodwink the Court by suppressing it instead of coming clean. If he had frankly and fairly stated in his application that he was seeking interim stay of the conviction order to avoid the disqualification which he was likely to incur by virtue of the language of Section 267 of the Companies Act, the Delhi High Court would have applied its mind to that question and would have, for reasons to be stated in writing, passed an appropriate order with or without conditions. We are, therefore, satisfied that the scope of the interim order passed by the Delhi High Court does not extend to staying the operation of Section 267 of the Companies Act.19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. | 0[ds]16. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order "for reasons to be recorded by it in writing". If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto ? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate. In the instant case if we turn to the application by which interim stay of the operation of the impugned judgment was secured we do not find a single word to the effect that if the operation of the conviction is not stayed the consequence as indicated in Section 267 of the Companies Act will fall on the appellant. How could it then be said that the Delhi High Court had applied its mind to this precise question before granting stay ? That is why the High Court order granting interim stay does not assign any reason having relevance to the said issue. By not making a specific reference to this aspect of the matter, how could the appellant have persuaded the Delhi High Court to stop the coming into operation of Section 267 of the Companies Act ? And how could the Court have applied its mind to this question if its pointed attention was not drawn ? As we said earlier the application seeking interim stay is wholly silent on this point. That is why we feel that this is a case in which the appellant indulged in an exercise of hide and seek in obtaining the interim stay without drawing the pointed attention of the Delhi High Court that stay of conviction was essential to avoid the disqualification under Section 267 of the Companies Act. If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto it may have granted an order to that effect. There can be no doubt that the object of Section 267 of the Companies Act is wholesome and that is to ensure that the management of the company is not in soiled hands. As we have pointed out earlier the Managing Director of a company holds a fiduciary position qua the company and its shareholders and therefore, different considerations would flow if an order is sought from the Appellate Court for staying the operation of the disqualification that would result on the application of Section 267 of the Companies Act. Therefore, even on facts since the appellant had not sought any order from the Delhi High Court for stay of the disqualification he was likely to incur under Section 267 of the Companies Act on account of his conviction, it cannot be inferred that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted a stay of the operation of the impugned judgment. It is for that reason that we do not find in the order of the High Court a single reason relevant to the consequence of the conviction under Section 267 of the Companies Act. The interim stay granted by the Delhi High Court must, therefore, be read in that context and cannot extend to stay the operation of Section 267 of the Companies Act.17. There is, however, substance in the argument that the Bombay High Court whilst dealing with the interim stay order of the Delhi High Court in collateral civil proceedings could not have held that the latter had no power or jurisdiction to suspend the order of conviction. If the Delhi High Court had consciously passed an order even in purported exercise of power under Section 389(1) of the Code granting stay of the order of conviction so as not to result in the disqualification envisaged by Section 267 of the Companies Act, it would not be open to the Bombay High Court in collateral civil proceedings to overlook it on the ground that the scope of Section 389(1) of the Code did not extend to granting of such a stay order. However, it was open to the Bombay High Court to interpret the order in the background of the fact that in the application seeking the interim order there was no mention whatsoever that stay of conviction was sought to avoid the disqualification under Section 267 of the Companies Act. It was perfectly open to the Bombay High Court, without questioning the legality and validity of the interim order passed by the Delhi High Court, to examine it in the context of the averments in the application by which the interim order was sought. We are, therefore, of the opinion that the Bombay High Court in collateral civil proceedings could not overlook the interim order passed by the Delhi High Court on the ground that the latter had no power or jurisdiction to grant such an order having regard to the scope and ambit of Section 389(1) of the Code. However, it was perfectly open to the Bombay High Court to interpret the scope of the interim stay granted by the Delhi High Court in the context of the averments made in the application seeking such an order.18. Be that as it may, we have, on interpretation of the interim order passed by the Delhi High Court in the context of the averments made in the application seeking such an order, come to the conclusion that the Delhi High Court while granting stay of the impugned judgment did not and could not have intended to stay the operation of the disqualification under Section 267 of the Companies Act consequent upon conviction. To that extent the interpretation put by the Bombay High Court on the interim stay is unassailable. We are afraid the appellant did not approach the Delhi High Court with clean hands if the intention of obtaining the stay was to avoid the disqualification under Section 267 of the Companies Act. That is why we have said that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands. It would have been so if the intention of the appellant in obtaining the interim stay was to avoid the disqualification he was likely to incur by the thrust of Section 267 of the Companies Act. If that was his intention he was clearly trying to hoodwink the Court by suppressing it instead of coming clean. If he had frankly and fairly stated in his application that he was seeking interim stay of the conviction order to avoid the disqualification which he was likely to incur by virtue of the language of Section 267 of the Companies Act, the Delhi High Court would have applied its mind to that question and would have, for reasons to be stated in writing, passed an appropriate order with or without conditions. We are, therefore, satisfied that the scope of the interim order passed by the Delhi High Court does not extend to staying the operation of Section 267 of the Companies Act.19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. | 0 | 6,774 | 1,866 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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of power under Section 389(1) of the Code granting stay of the order of conviction so as not to result in the disqualification envisaged by Section 267 of the Companies Act, it would not be open to the Bombay High Court in collateral civil proceedings to overlook it on the ground that the scope of Section 389(1) of the Code did not extend to granting of such a stay order. However, it was open to the Bombay High Court to interpret the order in the background of the fact that in the application seeking the interim order there was no mention whatsoever that stay of conviction was sought to avoid the disqualification under Section 267 of the Companies Act. It was perfectly open to the Bombay High Court, without questioning the legality and validity of the interim order passed by the Delhi High Court, to examine it in the context of the averments in the application by which the interim order was sought. We are, therefore, of the opinion that the Bombay High Court in collateral civil proceedings could not overlook the interim order passed by the Delhi High Court on the ground that the latter had no power or jurisdiction to grant such an order having regard to the scope and ambit of Section 389(1) of the Code. However, it was perfectly open to the Bombay High Court to interpret the scope of the interim stay granted by the Delhi High Court in the context of the averments made in the application seeking such an order.18. Be that as it may, we have, on interpretation of the interim order passed by the Delhi High Court in the context of the averments made in the application seeking such an order, come to the conclusion that the Delhi High Court while granting stay of the impugned judgment did not and could not have intended to stay the operation of the disqualification under Section 267 of the Companies Act consequent upon conviction. To that extent the interpretation put by the Bombay High Court on the interim stay is unassailable. We are afraid the appellant did not approach the Delhi High Court with clean hands if the intention of obtaining the stay was to avoid the disqualification under Section 267 of the Companies Act. That is why we have said that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands. It would have been so if the intention of the appellant in obtaining the interim stay was to avoid the disqualification he was likely to incur by the thrust of Section 267 of the Companies Act. If that was his intention he was clearly trying to hoodwink the Court by suppressing it instead of coming clean. If he had frankly and fairly stated in his application that he was seeking interim stay of the conviction order to avoid the disqualification which he was likely to incur by virtue of the language of Section 267 of the Companies Act, the Delhi High Court would have applied its mind to that question and would have, for reasons to be stated in writing, passed an appropriate order with or without conditions. We are, therefore, satisfied that the scope of the interim order passed by the Delhi High Court does not extend to staying the operation of Section 267 of the Companies Act.19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
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of power under Section 389(1) of the Code granting stay of the order of conviction so as not to result in the disqualification envisaged by Section 267 of the Companies Act, it would not be open to the Bombay High Court in collateral civil proceedings to overlook it on the ground that the scope of Section 389(1) of the Code did not extend to granting of such a stay order. However, it was open to the Bombay High Court to interpret the order in the background of the fact that in the application seeking the interim order there was no mention whatsoever that stay of conviction was sought to avoid the disqualification under Section 267 of the Companies Act. It was perfectly open to the Bombay High Court, without questioning the legality and validity of the interim order passed by the Delhi High Court, to examine it in the context of the averments in the application by which the interim order was sought. We are, therefore, of the opinion that the Bombay High Court in collateral civil proceedings could not overlook the interim order passed by the Delhi High Court on the ground that the latter had no power or jurisdiction to grant such an order having regard to the scope and ambit of Section 389(1) of the Code. However, it was perfectly open to the Bombay High Court to interpret the scope of the interim stay granted by the Delhi High Court in the context of the averments made in the application seeking such an order.18. Be that as it may, we have, on interpretation of the interim order passed by the Delhi High Court in the context of the averments made in the application seeking such an order, come to the conclusion that the Delhi High Court while granting stay of the impugned judgment did not and could not have intended to stay the operation of the disqualification under Section 267 of the Companies Act consequent upon conviction. To that extent the interpretation put by the Bombay High Court on the interim stay is unassailable. We are afraid the appellant did not approach the Delhi High Court with clean hands if the intention of obtaining the stay was to avoid the disqualification under Section 267 of the Companies Act. That is why we have said that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands. It would have been so if the intention of the appellant in obtaining the interim stay was to avoid the disqualification he was likely to incur by the thrust of Section 267 of the Companies Act. If that was his intention he was clearly trying to hoodwink the Court by suppressing it instead of coming clean. If he had frankly and fairly stated in his application that he was seeking interim stay of the conviction order to avoid the disqualification which he was likely to incur by virtue of the language of Section 267 of the Companies Act, the Delhi High Court would have applied its mind to that question and would have, for reasons to be stated in writing, passed an appropriate order with or without conditions. We are, therefore, satisfied that the scope of the interim order passed by the Delhi High Court does not extend to staying the operation of Section 267 of the Companies Act.19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
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Gogula Gurumurthy & Ors Vs. Kurimeti Ayyappa | property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioners right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unablea to accept this contention.9. 3. Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating items 1, 2 and 5 between the appellants and the respondent. The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/- as the amount due on settlement of account, and it was open to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that theses should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conluction of the High Court on this point would seem to point to the same conclusion in respect of the first point.10. 4. Lastly, it was argued that Naramsimham, the widow, had treated this property as accretion to the husbands estate and therefore the appellants are entitled to the whole of the property. The facts on the basis of which this contention is urged are :(a) When Narasimhams life interest in the estate was sold in E.P.No.93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest.(b) In the order in E. A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate.(c) Life interest in the A-Schedule properties was sold in E. P. 28 of 1940 in execution of the decree in O. S. 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest.We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husbands estate. As observed by the Madras High Court in Akkanna v. Venkayya, (1902) ILR 25 Mad 351."the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husbands property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widows estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any distinction, along with properties inherited from her husband, can in no way affect the presumption. She is the sole and separate owner of the two sets of properties so long as she enjoyes the same, and is absolutely entitled to the income derived from both sets of properties."The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quite. She was not thereby estopped from contending that she had an absolute interest in the properties. It should, moreover, be remembered that the question that the Items 1, 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate. | 1[ds]4. The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judges court only to the question of the share, which the appellants and the respondent were entitled to, based on the calculation of the interest due on the moretgages before and after the death of Ramamurti.His contention was that as the High Court had merely framed issued and referred them for trial to the court of first instance under Order XLI Rule 25 of theCode of Civil Procedure and not remanded the whole case under Order XLI R. 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for.We think that he is right in this contention. Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs. 14,639/- and that when the decree was sought to be executed by Venkanna, Narsimham claimed that the amount due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance, that the set off claimed by Narsimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for.In the Trial Court the plantiffs contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendant asserted that they were purchased out of the principal. That Court dismissed the plaintiffs claim on the ground that there was no proof of his allegations. It was before the High Court apparently that the attempt to split the interest due on in mortgages into two portions, one before Ramamurtis death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set off. They raised the question before the Trial Court when it was considering the apportionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Courts order calling for the finding. And the High Court refused to allow the appellants to raise that questions, which as we have just held was not correct.. Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating items 1, 2 and 5 between the appellants and the respondent.The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/- as the amount due on settlement of account, and it was open to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that theses should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conluction of the High Court on this point would seem to point to the same conclusion in respect of the first point.10.4. Lastly, it was argued that Naramsimham, the widow, had treated this property as accretion to the husbands estate and therefore the appellants are entitled to the whole of thefact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quite. She was not thereby estopped from contending that she had an absolute interest in the properties. It should, moreover, be remembered that the question that the Items 1, 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate.We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view take in Gopi Nath v. Sat Narain, (AIR 1923 All 384) where it was held thatan appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order." It was also held that :"An order remanding issues under Rule 25 is not a final order. No appeal lies against it. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.It is quite otherwise with an order of remand passed under Order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides." A similar view was taken by the Nagpur High Court in Sultan Beg v. Chunilal (AIR 1918 Nag. 193). In Uprendra Lal v. Jogesh Chandra, 32 Cal. W. N. 1233 = (AIR 1928 Cal 186 ) it was said :"An order of remand made under Or. 41, R. 25 decides nothing. The Court, either the same or as differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appearare, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O. S. 14 of 1913 there can be no question of Narsimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour.6.In the Trial Court the plantiffs contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendant asserted that they were purchased out of the principal. That Court dismissed the plaintiffs claim on the ground that there was no proof of his allegations. It was before the High Court apparently that the attempt to split the interest due on in mortgages into two portions, one before Ramamurtis death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings. After the findings were received the appellants raised the question about the set off. They raised the question before the Trial Court when it was considering the apportionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Courts order calling for the finding. And the High Court refused to allow the appellants to raise that questions, which as we have just held was not correct.The decree in Venkannas suit appears to have directed payment of interest to Narsimham (Para iii (c) of the plaint and judgment of the High Court, page 102 of the paper book). We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940. We have also evidence in this case that even when Venkanna died a sum of Rs. 4,486/was due to him on the foot of the decree the obtained against Narasimham. It is, therefore, highly unlikely that any amount due to Narasimham was not given credit to. We find from the finding submitted by the Trial Court (Page 86 of the paper book) that when the decree in O. S. 14 of 1913 was sought to be executed Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from Ex.it would appear that the claim was allowed. It seems therefore unlikely, taking the direction in the decree and the order evidence by Ex.into account, that the interest due to Narasimham was not one of the items set off. We do not want to express any final opinion on the point but are of opinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appealfind ourselves unable to accept this contention just as the High Court, though they gave to reason for their conclusion. Neither on principle nor on authority could the contention on behalf of the appellants be supported. A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wilful waste, she is answerable to no one. Her estate is not abecause in certain circumstances she can give an absolute and complete title.Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to one. She fully represents the estate, and, so long as the she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense as trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represent the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitle to possession. In her lifetime however, the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained due to the negligence on the part of the widow he should be compensated from out of the widows separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioners right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unablea to accept thisHigh Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/as the amount due on settlement of account, and it was open to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that theses should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conluction of the High Court on this point would seem to point to the same conclusion in respect of the firstdo not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husbands estate. As observed by the Madras High Court in Akkanna v. Venkayya, (1902) ILR 25 Madacquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husbands property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widows estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any distinction, along with properties inherited from her husband, can in no way affect the presumption. She is the sole and separate owner of the two sets of properties so long as she enjoyes the same, and is absolutely entitled to the income derived from both sets offact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quite. She was not thereby estopped from contending that she had an absolute interest in the properties. It should, moreover, be remembered that the question that the Items 1, 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate. | 1 | 3,239 | 3,050 | ### Instruction:
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property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioners right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unablea to accept this contention.9. 3. Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating items 1, 2 and 5 between the appellants and the respondent. The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/- as the amount due on settlement of account, and it was open to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that theses should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conluction of the High Court on this point would seem to point to the same conclusion in respect of the first point.10. 4. Lastly, it was argued that Naramsimham, the widow, had treated this property as accretion to the husbands estate and therefore the appellants are entitled to the whole of the property. The facts on the basis of which this contention is urged are :(a) When Narasimhams life interest in the estate was sold in E.P.No.93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest.(b) In the order in E. A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate.(c) Life interest in the A-Schedule properties was sold in E. P. 28 of 1940 in execution of the decree in O. S. 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest.We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husbands estate. As observed by the Madras High Court in Akkanna v. Venkayya, (1902) ILR 25 Mad 351."the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husbands property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widows estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any distinction, along with properties inherited from her husband, can in no way affect the presumption. She is the sole and separate owner of the two sets of properties so long as she enjoyes the same, and is absolutely entitled to the income derived from both sets of properties."The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quite. She was not thereby estopped from contending that she had an absolute interest in the properties. It should, moreover, be remembered that the question that the Items 1, 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate.
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an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to one. She fully represents the estate, and, so long as the she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense as trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represent the whole inheritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitle to possession. In her lifetime however, the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained due to the negligence on the part of the widow he should be compensated from out of the widows separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioners right to institute a suit to prevent waste is a different matter. If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter. It would still have been necessary for the reversioner to have instituted a suit on that basis. It is doubtful whether such a suit can be instituted after her death. In any case the necessary averments are not available in this suit. We are, therefore, unablea to accept thisHigh Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/as the amount due on settlement of account, and it was open to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that theses should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti. We agree with this view. Incidentally it should be noticed that the conluction of the High Court on this point would seem to point to the same conclusion in respect of the firstdo not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husbands estate. As observed by the Madras High Court in Akkanna v. Venkayya, (1902) ILR 25 Madacquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husbands property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widows estate under the Hindu Law, that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income. The mere fact that properties thus acquired by her are managed and enjoyed by her without any distinction, along with properties inherited from her husband, can in no way affect the presumption. She is the sole and separate owner of the two sets of properties so long as she enjoyes the same, and is absolutely entitled to the income derived from both sets offact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question. It was to her advantage to keep quite. She was not thereby estopped from contending that she had an absolute interest in the properties. It should, moreover, be remembered that the question that the Items 1, 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husbands estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along doing everything to prevent her husbands reversioners getting anything from the estate. She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste. She exhibited a very clear intention that whatever she possessed should go to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husbands estate as an accretion to that estate.
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Manindra Land And Buildingcorporation Ltd Vs. Bhutnath Banerjee And Others | them as the Act did not apply to commercial loans and as the Court had no jurisdiction to give the necessary relief. The trial Court held that the loan in that suit was a commercial loan and therefore did not come within the terms of the Act. The High Court disagreed with that view and held that the loan was not a commercial loan. The High Court had therefore set aside the order of the Subordinate Judge in the exercise of its revisional jurisdiction. The Judicial Committee considered whether the High Court was right in doing so and said at p. 142 (of Ind App): (at p. 242 of AIR) :"In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under sub-section (b) of S. 115.and then followed the observations already quoted above. It is clear that on the decision of the question the Subordinate Court had to determine in that case depended its very jurisdiction to take action under that particular Act. It had the jurisdiction to decide the question, but it could not give jurisdiction to itself or give up the exercise of its jurisdiction in the matter on the basis of its finding if that be erroneous. Neither the facts of that case are comparable to the facts of the present case nor the observations relied on by the learned counsel for the respondents can be applicable to this case, as here the Subordinate Judge had jurisdiction to decide both the questions of fact viz., whether the appellant had sufficient cause for not making an application for setting aside the abatement of the suit within the period prescribed and therefore had sufficient cause for the Courts exercising its discretion in extending the period of limitation in view of the provisions of S. 5 of the Limitation Act and also the fact whether the appellant was prevented from sufficient cause from not making an application for the substitution of the legal representatives within the prescribed period of limitation and thus continuing with the suit. The Court had the jurisdiction to decide both the questions of fact and also to proceed with the suit as a result of its decision.13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384 ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411 the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time. | 1[ds]13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384 ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411 the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time. We allow the appeal with costs throughout, set aside the order of the Court below and restore that of the trial Court. It will now proceed according to law with the further execution of the decree on the second application presented by the appellant for the purpose. | 1 | 3,170 | 714 | ### Instruction:
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them as the Act did not apply to commercial loans and as the Court had no jurisdiction to give the necessary relief. The trial Court held that the loan in that suit was a commercial loan and therefore did not come within the terms of the Act. The High Court disagreed with that view and held that the loan was not a commercial loan. The High Court had therefore set aside the order of the Subordinate Judge in the exercise of its revisional jurisdiction. The Judicial Committee considered whether the High Court was right in doing so and said at p. 142 (of Ind App): (at p. 242 of AIR) :"In so doing, on the assumption that his decision that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under sub-section (b) of S. 115.and then followed the observations already quoted above. It is clear that on the decision of the question the Subordinate Court had to determine in that case depended its very jurisdiction to take action under that particular Act. It had the jurisdiction to decide the question, but it could not give jurisdiction to itself or give up the exercise of its jurisdiction in the matter on the basis of its finding if that be erroneous. Neither the facts of that case are comparable to the facts of the present case nor the observations relied on by the learned counsel for the respondents can be applicable to this case, as here the Subordinate Judge had jurisdiction to decide both the questions of fact viz., whether the appellant had sufficient cause for not making an application for setting aside the abatement of the suit within the period prescribed and therefore had sufficient cause for the Courts exercising its discretion in extending the period of limitation in view of the provisions of S. 5 of the Limitation Act and also the fact whether the appellant was prevented from sufficient cause from not making an application for the substitution of the legal representatives within the prescribed period of limitation and thus continuing with the suit. The Court had the jurisdiction to decide both the questions of fact and also to proceed with the suit as a result of its decision.13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384 ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411 the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time.
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13. We may refer to two cases relied on for the respondents. In Dwarka v. Union of India, ILR 33 Pat 176: (AIR 1954 Pat 384 ) an application for setting aside an ex parte decree dated November 30, 1951was made on January 25, 1952. Though made after the expiry of the period of limitation, it was held to be within time on the view that the Court, though open on January 2, 1952 must be treated as closed as no substantive work was transacted on that day. The High Court held that the trial Court was wrong in its view about the Court being taken as closed on January 2 and therefore the High Court interfered in revision. The trial Court mis-applied the provisions of S. 4 of the Limitation Act which allows the making of an application on the day on which the court reopens after the day on which the period of limitation prescribed for making the application expires and on which day the Court happens to be closed. The trial Court had gone absolutely against the provisions of this section in ignoring the fact that the Court reopened on January 2 and not on January 25, 1952. The High Court, in coming to its conclusion, relied on the provisions of S. 3 of the Limitation Act. Section 5 of the Limitation Act is not applicable to applications for setting aside ex parte decrees under O. IX, R. 13 of the Code. This case does not decide that the finding about the Court being satisfied about the existence of sufficient cause was such a finding as involved jurisdiction and therefore could be interfered with by the High Court.14. In the case reported as Basantilata v. Amar Nath, AIR 1950 Cal 411 the High Court interfered as the trial Court had misconstrued and mis-applied the provisions of Ss. 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). The suit was dismissed on December 14, 1942. An application for the setting aside of the order of dismissal was made on July 15, 1947. The plaintiff, who was a soldier, served under war conditions from May 23, 1942 to November 25, 1946 when he was discharged. Thus the total period the plaintiff served under war conditions was 4 years 6 months and 3 days, The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The Subordinate Judge excluded it and the High Court considered it unjustifiable to exclude the period prior to December 14, 1942, the date of the decree, as that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order. Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of S. 5 of the Limitation Act which applied to such applications, but on the Courts deciding the question of limitation in connection with which sub-s. (2) of S. 10 followed practically the language of S. 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time.15. We are therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at by the Subordinate Judge with respect to the appellants having sufficient cause for not making an application for bringing the respondents on record within time and for not applying for the setting aside of the abatements within time. We allow the appeal with costs throughout, set aside the order of the Court below and restore that of the trial Court. It will now proceed according to law with the further execution of the decree on the second application presented by the appellant for the purpose.
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Himalayan Tile & Marble Private Limited Vs. Francis V. Coutinho | officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962 therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered in- to between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal. The appeal is dismissed with costs. The amount of Rs. 500 deposited towards the costs of the respondents be paid to them against their costs. We think that in the circumstances the costs of the two sets of respondents namely the respondents 1, 2 and 3 on the one hand and the respondents Nos. 4 and 5 on the other be quantified at Rs. 500/- | 0[ds]9. Having heard counsel on this preliminary objection, we are inclined to hold that there is much substance in the objection which is entitled to succeed and it is clear upon the authorities that the party for whom acquisition is being undertaken has no locus standi whatever except as provided in Section 50,(2) to intermeddle with the acquisition proceedings or to claim to set aside the award under Section 18. Therefore, such a party would not be entitled to challenge the same proceedings indirectly in a writ petition. We would first refer to some provisions of the law, relied on by either side, Section 18,(1) merely gives the right to have a reference made only to "any person interested" who has not accepted the award. Therefore the person who can demand a reference must be a "person interested". That expression is defined by the Act in Section 3,(b) as including "all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;" It was urged, therefore, that the 3rd respondent for whom the land is being acquired would be a "person interested" because it has an interest in the compensation we cannot accept this conclusion because Section 50,(2) indicates what is the nature of the interest of such a person. Itany proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: "provided that no such local authority or company shall be entitled to demand a reference under Section 18. "therefore in express terms Section 50 takes away the right to demand a reference from the party for whom the acquisition is set on foot. Not merely does the parentby implication limit the scope and extent to which such a person can intermeddle with the land acquisition proceedings by the words "may appear and adduce evidence, for the purpose of determining the amount of compensation" but the proviso expressly takes away the right to demand a reference.Counsel sought to avoid the impact of the decisions to which we have referred above by urging that though no doubt it may not be open to the Company for whom the land is being acquired to intermeddle with the land acquisition proceedings while they are before the Land Acquisition Officer and prior to the award being made, there is nothing to bar such a person from challenging the proceedings and the award otherwise, if he can do so, that is to say, as for instance in a writ matter. We do not think that the Miscellaneous petition which was preferred in this case was any ancillary or different proceeding. In fact it was undertaken in order to challenge those very proceedings and to set aside the very award which was passed, and if a party is deprived of the right to challenge those proceedings or to question the award by the special law by which it is governed, we cannot acting under our constitutional power permit that which the law Itself has prohibited.It seems to us that despite the fact that an award was made the position of the 3rd respondent remained the same as before namely that it was still merely a company for which land acquisition proceedings had been undertaken. In this respect, considerable controversy was raised as to whether the Government had been put in possession of a part of the land thus feeding their title and completing it to that extent. We may first of all dispose of this small ancillaryas we have stated the 3rd respondents fortunately for them were made parties to the writ petition but they did not only not contest the proceedings but did not even appear and were throughout ex parte. If they had intended to controvert any statement in the petition, surely it was their duty to have controverted the statements in the petition. That they have not done so would entitle the Court to hold that this allegation made in paragraphs 1 and 15 of the petition is true at least so far as the 3rd respondent is concerned and unchallengeable so far as they are concerned, but we do not propose merely to rely upon such a technicality. The party most concerned with the land acquisition proceedings namely the Land Acquisition Officer has filed an affidavit on 22nd December, 1962 and in reply to paragraph 15 he stated in paragraph 21 "with reference to paragraph 15 of the petition I believe the contents thereof to be substantially correct". Similarly with reference to paragraph 1 of the petition also he stated in paragraph 8 of his affidavit that the contents thereof he believed were substantially correct. Therefore the only person who should be in the know of facts namely the Land Acquisition Officer has categorically admitted that what the petitioners had stated as to their possession was true. In the face of this admission of the Land Acquisition Officer himself and in the face of theof any affidavit on the part of the 3rd respondent, there can be only one conclusion namely that on the date of the petition the petitioners were in possession of the lands underthe second place, we may say that it is this same officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962 therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered into between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal | 0 | 5,909 | 1,971 | ### Instruction:
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officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962 therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered in- to between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal. The appeal is dismissed with costs. The amount of Rs. 500 deposited towards the costs of the respondents be paid to them against their costs. We think that in the circumstances the costs of the two sets of respondents namely the respondents 1, 2 and 3 on the one hand and the respondents Nos. 4 and 5 on the other be quantified at Rs. 500/-
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to their possession was true. In the face of this admission of the Land Acquisition Officer himself and in the face of theof any affidavit on the part of the 3rd respondent, there can be only one conclusion namely that on the date of the petition the petitioners were in possession of the lands underthe second place, we may say that it is this same officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962 therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered into between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal
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STATE BANK OF INDIA Vs. RAVINDRA NATH | terms and conditions spelt out in the letter are subject to review and revision by the Bank from time to time. 14. Mr. Kaul learned counsel for the appellant-Bank has pointed out that there was no alteration in the perquisites granted to the respondent which was to the tune of Rs. 1,60,000/- per month. It was only the salary component which was reduced on availability of the Cost of Living Index in March, 2000. 15. A perusal of relevant conditions as reproduced above shows that salary of US $ 1965 was not promised to be paid for the entire period of posting in Johannesburg. It was subject to change either way that is increase or decrease. The Bank has explained that such salary of US $ 1965 was fixed in absence of Cost of Living Index on the basis of recommendations of the Committee. Later, the Standing Committee was constituted in exercise of the powers under Section 18 of the Act mandating that any change in future in the salaries and perquisites and other service conditions has to be affected with the prior approval of the Standing Committee. Section 18 of the Act reads as under:?18. Central Board to be guided by directions of Central Government.—(1) In the discharge of its functions the State Bank shall be guided by such directions in matters of policy involving public interest as the Central Government may, in consultation with the governor of the Reserve Bank and the chairman of the State Bank, give to it. (2) All directions shall be given by the Central government and, if any question arises whether a direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.?16. It is in view of such directions that the appellant Bank framed service conditions and allied matters. It is thereafter on 15.1.2001, the Working Group of the Standing Committee decided the salary payable to the Officers of the Bank. Such salary structure is meant for all Officers of Public Sector Banks posted abroad. Such recommendations are applicable in non-discriminatory manner to all Officers of the Public Sector Banks. 17. Though, certain representations are said to have been made by the Chief Executive Officer on behalf of the five Officers posted at Johannesburg but there is no communication that the Officers are finding it difficult to work on the basis of such reduced salary. The salary was reduced from the month of January, 2001, though, the respondent-writ petitioner has joined only on 21.09.2000. The respondent never offered to seek repatriation to India and in fact sought voluntary retirement on depositing of Rs. 10,00,000/- for further stay in Johannesburg. It shows that there was no financial loss suffered by him on account of reduction in salary, but actually, he found it lucrative to resign from the service of the Bank and to stay in Johannesburg after payment of substantial amount of Rs. 10,00,000/-. 18. The salary has been fixed in terms of directions of the Government of India, in respect of all Public Sector Banks keeping in view the Cost of Living Index in different countries and making adjustments in the salaries according to the Cost of Living of each country. The Cost of Living in each country is separate and distinct and such factors have been taken into consideration while fixing the salary on the basis of Bulletin of Statistics published by U.N. in March, 2000. The earlier fixation of salary for Johannesburg was fixed by Working Group w.e.f 01.01.1995 on the basis of Consumer Price Index of 1992 as per International Financial, Statistics (IMF Publication - September, 1995). The revised salary structure is not meant for any particular official but is applicable to all Officers of Public Sector Banks posted abroad. 19. The argument of the learned counsel for the respondent is that when the respondent was deputed in June, 2001 the Cost of Living Index as in March, 2000 was available, therefore, there was no reason to fix the salary on the basis of Consumer Price Index of the year 1995. It has come on record that the Bulletin of Statistics published by the U.N. in March, 2000 was considered by the Standing Committee in its meeting held on 15.01.2001. The respondent was informed of his reduced salary the very next day. Therefore, the Cost of Living Index on the basis of March, 2000 Report was considered in January, 2001. Such decision cannot be said to be arbitrary only because it was taken after about nine months of the publication of the data. 20. The reasoning given by the High Court that there is no privity of contract of the respondent-writ petitioner with the Standing Committee is not tenable. The respondent-writ petitioner as an Officer of the Bank is bound by the salary structure approved by the Bank for its Officers. The decision of the Standing Committee is a part of the decision-making in respect of salary payable to the employees of the Banks. The employee of a Bank has no right that he should be associated with the decision-making process in respect of the fixation of salary. However, if the question of reasonableness of salary arises, then in exercise of power of judicial review, the Court may examine the decision-making process. In exercise of power of judicial review, we do not find any infirmity in the decision of Standing Committee taken on 15.01.2001 in pursuance to the direction of the Government of India issued under Section 18 of the Act. 21. Since, the salary has been fixed for all Officers of the Public Sector Banks in a non-discriminatory manner keeping in view the Cost of Living Index, we find that the High Court erred in law in setting aside the reduction in salary. There is reasonable basis of reduction of salary. Still further there was no promise ever made to the respondent-writ petitioner that his salary of US $ 1965 shall remain unchanged during the period of his posting. | 1[ds]15. A perusal of relevant conditions as reproduced above shows that salary of US $ 1965 was not promised to be paid for the entire period of posting in Johannesburg. It was subject to change either way that is increase or decrease. The Bank has explained that such salary of US $ 1965 was fixed in absence of Cost of Living Index on the basis of recommendations of the Committee. Later, the Standing Committee was constituted in exercise of the powers under Section 18 of the Act mandating that any change in future in the salaries and perquisites and other service conditions has to be affected with the prior approval of the Standing Committee.It is in view of such directions that the appellant Bank framed service conditions and allied matters. It is thereafter on 15.1.2001, the Working Group of the Standing Committee decided the salary payable to the Officers of the Bank. Such salary structure is meant for all Officers of Public Sector Banks posted abroad. Such recommendations are applicable in non-discriminatory manner to all Officers of the Public Sector Banks.Though, certain representations are said to have been made by the Chief Executive Officer on behalf of the five Officers posted at Johannesburg but there is no communication that the Officers are finding it difficult to work on the basis of such reduced salary. The salary was reduced from the month of January, 2001, though, the respondent-writ petitioner has joined only on 21.09.2000. The respondent never offered to seek repatriation to India and in fact sought voluntary retirement on depositing of Rs. 10,00,000/- for further stay in Johannesburg. It shows that there was no financial loss suffered by him on account of reduction in salary, but actually, he found it lucrative to resign from the service of the Bank and to stay in Johannesburg after payment of substantial amount of Rs. 10,00,000/-.The salary has been fixed in terms of directions of the Government of India, in respect of all Public Sector Banks keeping in view the Cost of Living Index in different countries and making adjustments in the salaries according to the Cost of Living of each country. The Cost of Living in each country is separate and distinct and such factors have been taken into consideration while fixing the salary on the basis of Bulletin of Statistics published by U.N. in March, 2000. The earlier fixation of salary for Johannesburg was fixed by Working Group w.e.f 01.01.1995 on the basis of Consumer Price Index of 1992 as per International Financial, Statistics (IMF Publication - September, 1995). The revised salary structure is not meant for any particular official but is applicable to all Officers of Public Sector Banks posted abroad.The argument of the learned counsel for the respondent is that when the respondent was deputed in June, 2001 the Cost of Living Index as in March, 2000 was available, therefore, there was no reason to fix the salary on the basis of Consumer Price Index of the year 1995. It has come on record that the Bulletin of Statistics published by the U.N. in March, 2000 was considered by the Standing Committee in its meeting held on 15.01.2001. The respondent was informed of his reduced salary the very next day. Therefore, the Cost of Living Index on the basis of March, 2000 Report was considered in January, 2001. Such decision cannot be said to be arbitrary only because it was taken after about nine months of the publication of the data.The reasoning given by the High Court that there is no privity of contract of the respondent-writ petitioner with the Standing Committee is not tenable. The respondent-writ petitioner as an Officer of the Bank is bound by the salary structure approved by the Bank for its Officers. The decision of the Standing Committee is a part of the decision-making in respect of salary payable to the employees of the Banks. The employee of a Bank has no right that he should be associated with the decision-making process in respect of the fixation of salary. However, if the question of reasonableness of salary arises, then in exercise of power of judicial review, the Court may examine the decision-making process. In exercise of power of judicial review, we do not find any infirmity in the decision of Standing Committee taken on 15.01.2001 in pursuance to the direction of the Government of India issued under Section 18 of the Act.Since, the salary has been fixed for all Officers of the Public Sector Banks in a non-discriminatory manner keeping in view the Cost of Living Index, we find that the High Court erred in law in setting aside the reduction in salary. There is reasonable basis of reduction of salary. Still further there was no promise ever made to the respondent-writ petitioner that his salary of US $ 1965 shall remain unchanged during the period of his posting. | 1 | 2,833 | 874 | ### Instruction:
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terms and conditions spelt out in the letter are subject to review and revision by the Bank from time to time. 14. Mr. Kaul learned counsel for the appellant-Bank has pointed out that there was no alteration in the perquisites granted to the respondent which was to the tune of Rs. 1,60,000/- per month. It was only the salary component which was reduced on availability of the Cost of Living Index in March, 2000. 15. A perusal of relevant conditions as reproduced above shows that salary of US $ 1965 was not promised to be paid for the entire period of posting in Johannesburg. It was subject to change either way that is increase or decrease. The Bank has explained that such salary of US $ 1965 was fixed in absence of Cost of Living Index on the basis of recommendations of the Committee. Later, the Standing Committee was constituted in exercise of the powers under Section 18 of the Act mandating that any change in future in the salaries and perquisites and other service conditions has to be affected with the prior approval of the Standing Committee. Section 18 of the Act reads as under:?18. Central Board to be guided by directions of Central Government.—(1) In the discharge of its functions the State Bank shall be guided by such directions in matters of policy involving public interest as the Central Government may, in consultation with the governor of the Reserve Bank and the chairman of the State Bank, give to it. (2) All directions shall be given by the Central government and, if any question arises whether a direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.?16. It is in view of such directions that the appellant Bank framed service conditions and allied matters. It is thereafter on 15.1.2001, the Working Group of the Standing Committee decided the salary payable to the Officers of the Bank. Such salary structure is meant for all Officers of Public Sector Banks posted abroad. Such recommendations are applicable in non-discriminatory manner to all Officers of the Public Sector Banks. 17. Though, certain representations are said to have been made by the Chief Executive Officer on behalf of the five Officers posted at Johannesburg but there is no communication that the Officers are finding it difficult to work on the basis of such reduced salary. The salary was reduced from the month of January, 2001, though, the respondent-writ petitioner has joined only on 21.09.2000. The respondent never offered to seek repatriation to India and in fact sought voluntary retirement on depositing of Rs. 10,00,000/- for further stay in Johannesburg. It shows that there was no financial loss suffered by him on account of reduction in salary, but actually, he found it lucrative to resign from the service of the Bank and to stay in Johannesburg after payment of substantial amount of Rs. 10,00,000/-. 18. The salary has been fixed in terms of directions of the Government of India, in respect of all Public Sector Banks keeping in view the Cost of Living Index in different countries and making adjustments in the salaries according to the Cost of Living of each country. The Cost of Living in each country is separate and distinct and such factors have been taken into consideration while fixing the salary on the basis of Bulletin of Statistics published by U.N. in March, 2000. The earlier fixation of salary for Johannesburg was fixed by Working Group w.e.f 01.01.1995 on the basis of Consumer Price Index of 1992 as per International Financial, Statistics (IMF Publication - September, 1995). The revised salary structure is not meant for any particular official but is applicable to all Officers of Public Sector Banks posted abroad. 19. The argument of the learned counsel for the respondent is that when the respondent was deputed in June, 2001 the Cost of Living Index as in March, 2000 was available, therefore, there was no reason to fix the salary on the basis of Consumer Price Index of the year 1995. It has come on record that the Bulletin of Statistics published by the U.N. in March, 2000 was considered by the Standing Committee in its meeting held on 15.01.2001. The respondent was informed of his reduced salary the very next day. Therefore, the Cost of Living Index on the basis of March, 2000 Report was considered in January, 2001. Such decision cannot be said to be arbitrary only because it was taken after about nine months of the publication of the data. 20. The reasoning given by the High Court that there is no privity of contract of the respondent-writ petitioner with the Standing Committee is not tenable. The respondent-writ petitioner as an Officer of the Bank is bound by the salary structure approved by the Bank for its Officers. The decision of the Standing Committee is a part of the decision-making in respect of salary payable to the employees of the Banks. The employee of a Bank has no right that he should be associated with the decision-making process in respect of the fixation of salary. However, if the question of reasonableness of salary arises, then in exercise of power of judicial review, the Court may examine the decision-making process. In exercise of power of judicial review, we do not find any infirmity in the decision of Standing Committee taken on 15.01.2001 in pursuance to the direction of the Government of India issued under Section 18 of the Act. 21. Since, the salary has been fixed for all Officers of the Public Sector Banks in a non-discriminatory manner keeping in view the Cost of Living Index, we find that the High Court erred in law in setting aside the reduction in salary. There is reasonable basis of reduction of salary. Still further there was no promise ever made to the respondent-writ petitioner that his salary of US $ 1965 shall remain unchanged during the period of his posting.
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15. A perusal of relevant conditions as reproduced above shows that salary of US $ 1965 was not promised to be paid for the entire period of posting in Johannesburg. It was subject to change either way that is increase or decrease. The Bank has explained that such salary of US $ 1965 was fixed in absence of Cost of Living Index on the basis of recommendations of the Committee. Later, the Standing Committee was constituted in exercise of the powers under Section 18 of the Act mandating that any change in future in the salaries and perquisites and other service conditions has to be affected with the prior approval of the Standing Committee.It is in view of such directions that the appellant Bank framed service conditions and allied matters. It is thereafter on 15.1.2001, the Working Group of the Standing Committee decided the salary payable to the Officers of the Bank. Such salary structure is meant for all Officers of Public Sector Banks posted abroad. Such recommendations are applicable in non-discriminatory manner to all Officers of the Public Sector Banks.Though, certain representations are said to have been made by the Chief Executive Officer on behalf of the five Officers posted at Johannesburg but there is no communication that the Officers are finding it difficult to work on the basis of such reduced salary. The salary was reduced from the month of January, 2001, though, the respondent-writ petitioner has joined only on 21.09.2000. The respondent never offered to seek repatriation to India and in fact sought voluntary retirement on depositing of Rs. 10,00,000/- for further stay in Johannesburg. It shows that there was no financial loss suffered by him on account of reduction in salary, but actually, he found it lucrative to resign from the service of the Bank and to stay in Johannesburg after payment of substantial amount of Rs. 10,00,000/-.The salary has been fixed in terms of directions of the Government of India, in respect of all Public Sector Banks keeping in view the Cost of Living Index in different countries and making adjustments in the salaries according to the Cost of Living of each country. The Cost of Living in each country is separate and distinct and such factors have been taken into consideration while fixing the salary on the basis of Bulletin of Statistics published by U.N. in March, 2000. The earlier fixation of salary for Johannesburg was fixed by Working Group w.e.f 01.01.1995 on the basis of Consumer Price Index of 1992 as per International Financial, Statistics (IMF Publication - September, 1995). The revised salary structure is not meant for any particular official but is applicable to all Officers of Public Sector Banks posted abroad.The argument of the learned counsel for the respondent is that when the respondent was deputed in June, 2001 the Cost of Living Index as in March, 2000 was available, therefore, there was no reason to fix the salary on the basis of Consumer Price Index of the year 1995. It has come on record that the Bulletin of Statistics published by the U.N. in March, 2000 was considered by the Standing Committee in its meeting held on 15.01.2001. The respondent was informed of his reduced salary the very next day. Therefore, the Cost of Living Index on the basis of March, 2000 Report was considered in January, 2001. Such decision cannot be said to be arbitrary only because it was taken after about nine months of the publication of the data.The reasoning given by the High Court that there is no privity of contract of the respondent-writ petitioner with the Standing Committee is not tenable. The respondent-writ petitioner as an Officer of the Bank is bound by the salary structure approved by the Bank for its Officers. The decision of the Standing Committee is a part of the decision-making in respect of salary payable to the employees of the Banks. The employee of a Bank has no right that he should be associated with the decision-making process in respect of the fixation of salary. However, if the question of reasonableness of salary arises, then in exercise of power of judicial review, the Court may examine the decision-making process. In exercise of power of judicial review, we do not find any infirmity in the decision of Standing Committee taken on 15.01.2001 in pursuance to the direction of the Government of India issued under Section 18 of the Act.Since, the salary has been fixed for all Officers of the Public Sector Banks in a non-discriminatory manner keeping in view the Cost of Living Index, we find that the High Court erred in law in setting aside the reduction in salary. There is reasonable basis of reduction of salary. Still further there was no promise ever made to the respondent-writ petitioner that his salary of US $ 1965 shall remain unchanged during the period of his posting.
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Sardar Syedna Tahersaifuddin Saheb Vs. The State Of Bombay | appeal to a Bench of the Bombay High Court, and that was heard by Chagla, C. J., and Bhagwati, J., who held that under the Act, excommunication meant the condition of being expelled, that it was a continuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation. They further held that the Act was within the competence of the Legislature, and they also repelled the contention that it infringed the rights guaranteed under Arts. 25 and 26 of the Constitution. In the result, they concurred in the decision of Shah, J., and dismissed the appeal but granted a certificate to appeal to this Court under Arts. 132 and 133 of the Constitution. Hence this appeal. 6. Pending the appeal, the plaintiff died on 11-3-1953. and his daughter applied on 22-5-1953, to be substituted in his place. But eventually she did not press the application, and that was dismissed on 5-10-1953. In this Court by an order dated 21-11-1955, the cause title was amended by deleting the name of the plaintiff. Thus, the only parties who are now before the Court are the defendant and the State of Bombay. 7. The question is whether in the events which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined.Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona, when he died, the suit should abate.As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appeal. 8. Mr. N. C. Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party, and that as the decision on the question of the vires of the Act had been given in its presence, the appellant is entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of this Court on the validity of the Act; and relies on the decision of the Federal Court in United Provinces v. Mst. Atiqa Begum 1940 FCR 110 : (AIR 1941 FC 16 ) (b). There, a suit was filed by a landlord for recovery of rent. While it was pending in appeal, an Act was passed by the Legislature of the United Provinces validating certain Government notifications requiring the landlords to give to the tenants remission of rent. The landlord contended that the Act was ultra vires, and a Full Bench of the Allahabad High Court, for whose opinion the question was referred, agreed with this contention. Thereafter, the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord, and a decision having been given therein in accordance with the opinion of the Full Bench, it preferred an appeal to the Federal Court on a certificate granted under S. 205 of the Government of India Act, 1935, and contended that the impugned Act was valid. The judgment-debtor himself did not file any appeal. The question was whether the Government was entitled to file the appeal when the party had no chosen to contest the decree. It was held by the Federal Court that the scope of S. 205 of the Government of India Act was wider than that of S. 96 of the Civil Procedure Code. and that the Government was entitled to file the appeal for getting a decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit. This ruling has, in our opinion, no application to the facts of the present case.Here, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist. 9. But apart from this, there is another formidable obstacle in the way of the appellant. Under Art. 132 an appeal lies to this Court only against judgments, decrees or final orders. That was also the position under S. 205 of the Government of India Act. Now, the order appealed against is only a decision on one of the issue, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (B). (supra), there was a decree, and the requirements of S. 205 were satisfied. Here, there is only a finding on a preliminary issue, and there is no decree or final order. The Explanation to Art. 132 provides that: For the purposes of this Article, the expression final order includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case. Applying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried. We are clearly of opinion that the appeal is not competent under Art. 132 and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 133, but under that article also, an appeal lies only against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding. | 0[ds]We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined.Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona, when he died, the suit should abate.As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appealHere, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not existNow, the order appealed against is only a decision on one of the issue, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (B). (supra), there was a decree, and the requirements of S. 205 were satisfiedApplying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried. We are clearly of opinion that the appeal is not competent under Art. 132 and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 133, but under that article also, an appeal lies only against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding. | 0 | 1,715 | 374 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
appeal to a Bench of the Bombay High Court, and that was heard by Chagla, C. J., and Bhagwati, J., who held that under the Act, excommunication meant the condition of being expelled, that it was a continuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation. They further held that the Act was within the competence of the Legislature, and they also repelled the contention that it infringed the rights guaranteed under Arts. 25 and 26 of the Constitution. In the result, they concurred in the decision of Shah, J., and dismissed the appeal but granted a certificate to appeal to this Court under Arts. 132 and 133 of the Constitution. Hence this appeal. 6. Pending the appeal, the plaintiff died on 11-3-1953. and his daughter applied on 22-5-1953, to be substituted in his place. But eventually she did not press the application, and that was dismissed on 5-10-1953. In this Court by an order dated 21-11-1955, the cause title was amended by deleting the name of the plaintiff. Thus, the only parties who are now before the Court are the defendant and the State of Bombay. 7. The question is whether in the events which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined.Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona, when he died, the suit should abate.As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appeal. 8. Mr. N. C. Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party, and that as the decision on the question of the vires of the Act had been given in its presence, the appellant is entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of this Court on the validity of the Act; and relies on the decision of the Federal Court in United Provinces v. Mst. Atiqa Begum 1940 FCR 110 : (AIR 1941 FC 16 ) (b). There, a suit was filed by a landlord for recovery of rent. While it was pending in appeal, an Act was passed by the Legislature of the United Provinces validating certain Government notifications requiring the landlords to give to the tenants remission of rent. The landlord contended that the Act was ultra vires, and a Full Bench of the Allahabad High Court, for whose opinion the question was referred, agreed with this contention. Thereafter, the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord, and a decision having been given therein in accordance with the opinion of the Full Bench, it preferred an appeal to the Federal Court on a certificate granted under S. 205 of the Government of India Act, 1935, and contended that the impugned Act was valid. The judgment-debtor himself did not file any appeal. The question was whether the Government was entitled to file the appeal when the party had no chosen to contest the decree. It was held by the Federal Court that the scope of S. 205 of the Government of India Act was wider than that of S. 96 of the Civil Procedure Code. and that the Government was entitled to file the appeal for getting a decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit. This ruling has, in our opinion, no application to the facts of the present case.Here, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist. 9. But apart from this, there is another formidable obstacle in the way of the appellant. Under Art. 132 an appeal lies to this Court only against judgments, decrees or final orders. That was also the position under S. 205 of the Government of India Act. Now, the order appealed against is only a decision on one of the issue, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (B). (supra), there was a decree, and the requirements of S. 205 were satisfied. Here, there is only a finding on a preliminary issue, and there is no decree or final order. The Explanation to Art. 132 provides that: For the purposes of this Article, the expression final order includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case. Applying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried. We are clearly of opinion that the appeal is not competent under Art. 132 and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 133, but under that article also, an appeal lies only against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding.
### Response:
0
### Explanation:
We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined.Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona, when he died, the suit should abate.As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appealHere, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not existNow, the order appealed against is only a decision on one of the issue, and it does not dispose of the suit. In United Provinces v. Mst. Atiqa Begum (B). (supra), there was a decree, and the requirements of S. 205 were satisfiedApplying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried. We are clearly of opinion that the appeal is not competent under Art. 132 and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 133, but under that article also, an appeal lies only against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding.
|
All India Glass Manufacturers' Federation,New Delhi Vs. Collector Of Customs, Bombay | goods can arise only in case where such damage or deterioration before the clearance is proved to the satisfaction of the proper officer. When there had been no indication of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid, the assessment would be binding. The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for providing sub-standard, damaged or deteriorated goods for the value in the invoice, and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of the clearance. The price at which the goods had been sold is represented by the invoice price and whatever amount is realized on subsequent agreement is only by way of compensation as damages. It cannot be said that the damages thus received represents the difference in price that had been paid and that ought to have been paid. When the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indicated in the invoice 15. Learned counsel for the appellant referred to para 574 at page 121, Vol. 12 of Halsburys Laws of England, 4th edn "574. Goods not in accordance with contract. - Where it is shown to the satisfaction of the Commissioners of Customs and Excise that goods were imported in pursuance of a contract of sale and that their description, quality, state of condition was not in accordance with the contract, or that they were damaged in transit, and also that the importer, with the consent of the seller, either returned the goods unused to him or destroyed them unused, the importer is entitled to obtain from the commissioners repayment of any customs duty paid on their importation. The foregoing, however, does not apply to goods imported on approval, or on sale or return, or on other similar terms." * It deals with the returning of goods or destroying the goods unused without acceptance and not where the goods have been accepted and used and the importer had been compensated for the reduction in standard. The learned counsel also referred to the decision in Biggin & Co. Ltd. v. Premanite Ltd., Berry Wiggins & Co. Ltd. ( 1951 (1) KB 422 : 1951 (2) ALLER 191, Cehave N.V. v. Bremer Handelsgesellschaft mbH ( 1975 (3) ALLER 739: 1975 (3) WLR 447), Ford Motor Company of India Ltd. v. Secretary of State for India ((1937-38) 65 IA 32 : 1938 AIR(PC) 15 : 1938 (1) MLJ 161); and Vacuum Oil Co. v. Secretary of State for India (LR (1932) 59 IA 258 : 1932 AIR(PC) 168 : 34 Bom LR 1057) 16. On the basis of these decisions, the learned counsel for the appellant contended that when the seller has allowed the reduction, the real price of the goods is that which has been accepted by the seller and that the assessment made on a higher value on the basis of the invoice price is in excess is refundable to the appellant 17. It is not necessary to elaborate on the principle stated in the decisions on the facts of the present case 18. It is admitted case of the appellants that the alleged inferior nature of goods discovered by the appellant after clearance. Until the refund application was made, no requisition appears to have been made to the customs authorities to have the value of the goods redetermined for the purpose of Section 22. The correspondence between the appellants and the sellers and their agents could only reveal that the appellant put forward a claim for compensation on the ground that the goods imported had become lumpy and was also of inferior standard. Ultimately the sellers agreed to reimburse the appellants and pay compensation to the tune of US $ 2, 40, 000. What appellants have received from the sellers is compensation for the damage for breach of warranty. It does not appear that the value was reduced or amount remitted by the appellant was the reduced value of the goods. The amount was the total compensation extended by the sellers to the appellants. From the fact of payment of compensation of reimbursement by the sellers it cannot be taken that at the time and place of importation the goods imported was worth only the amount stated in the invoice less the compensation paid. In other words, there is no proof that the real value of the goods at the time and place of importation was less than what had been entered in the invoice and stated in the Bill of Entry. So long as examination of the goods had not been made or its value re-assessed to the satisfaction of the assessing authorities, it cannot be said that duty was charged not on the real value of the goods but on a higher amount. The contention that the inherent defect in the supply of goods resulted in the diminution of the value of the goods cannot be countenanced when it is conceded that what had been paid by the seller is only compensation for the breach of warranty. Furthermore, there is no material or record to show that even by the team of experts there had been a re-assessment of the value of the goods. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained. | 0[ds]14. Thus, under the scheme of the Act, the importer is entitled to clear the goods on payment of duty assessed and such assessment is to be made with reference to the tariff value of the goods where tariff values are fixed. In other cases, the price at which the goods are ordinarily sold for delivery at the time and place of importation represents the tariff value for the purpose of the assessment. When the value is assessed on the basis of the invoice and the goods are cleared, the implication is that no remission is allowed and no abatement has been occasioned. There is no express provision which enables the proper officer to make a re-assessment for the purpose of remission on the ground that the goods at the time of their importation or at the time of the clearance was sub-standard or damaged and the invoice price does not represent the real value. Even if it is assumed that in view of the provisions contained in Section 28(a) enabling the proper officer to determine the amount of duty due in cases where duty has not been levied or has been short levied or erroneously refunded after issuing show cause notice, there is a corresponding right on the importer to claim refund of the excess duty levied, it is necessary for the importer to prove to the satisfaction of the proper officer that the goods at the time of the clearance were chargeable to a lesser or lower duty for anyone of the reasons contained in Section 22 which alone provides for abatement of duty. Any error in the assessment of the value by itself does not enable the importer to claim re-assessment or refund. It has necessarily to be shown that on account of the damaged or deteriorated condition of the imported goods before or during the unloading of the goods in India, the duty to be charged on the goods was proportionate to the value of the damaged or deteriorated goods. The question of redetermining the value of the imported goods can arise only in case where such damage or deterioration before the clearance is proved to the satisfaction of the proper officer. When there had been no indication of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid, the assessment would be binding. The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for providing sub-standard, damaged or deteriorated goods for the value in the invoice, and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of the clearance. The price at which the goods had been sold is represented by the invoice price and whatever amount is realized on subsequent agreement is only by way of compensation as damages. It cannot be said that the damages thus received represents the difference in price that had been paid and that ought to have been paid. When the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indicated in theIt is admitted case of the appellants that the alleged inferior nature of goods discovered by the appellant after clearance. Until the refund application was made, no requisition appears to have been made to the customs authorities to have the value of the goods redetermined for the purpose of Section 22. The correspondence between the appellants and the sellers and their agents could only reveal that the appellant put forward a claim for compensation on the ground that the goods imported had become lumpy and was also of inferior standard. Ultimately the sellers agreed to reimburse the appellants and pay compensation to the tune of US $ 2, 40, 000. What appellants have received from the sellers is compensation for the damage for breach of warranty. It does not appear that the value was reduced or amount remitted by the appellant was the reduced value of the goods. The amount was the total compensation extended by the sellers to the appellants. From the fact of payment of compensation of reimbursement by the sellers it cannot be taken that at the time and place of importation the goods imported was worth only the amount stated in the invoice less the compensation paid. In other words, there is no proof that the real value of the goods at the time and place of importation was less than what had been entered in the invoice and stated in the Bill of Entry. So long as examination of the goods had not been made or its value re-assessed to the satisfaction of the assessing authorities, it cannot be said that duty was charged not on the real value of the goods but on a higher amount. The contention that the inherent defect in the supply of goods resulted in the diminution of the value of the goods cannot be countenanced when it is conceded that what had been paid by the seller is only compensation for the breach of warranty. Furthermore, there is no material or record to show that even by the team of experts there had been a re-assessment of the value of the goods. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained. | 0 | 3,533 | 1,047 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
goods can arise only in case where such damage or deterioration before the clearance is proved to the satisfaction of the proper officer. When there had been no indication of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid, the assessment would be binding. The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for providing sub-standard, damaged or deteriorated goods for the value in the invoice, and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of the clearance. The price at which the goods had been sold is represented by the invoice price and whatever amount is realized on subsequent agreement is only by way of compensation as damages. It cannot be said that the damages thus received represents the difference in price that had been paid and that ought to have been paid. When the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indicated in the invoice 15. Learned counsel for the appellant referred to para 574 at page 121, Vol. 12 of Halsburys Laws of England, 4th edn "574. Goods not in accordance with contract. - Where it is shown to the satisfaction of the Commissioners of Customs and Excise that goods were imported in pursuance of a contract of sale and that their description, quality, state of condition was not in accordance with the contract, or that they were damaged in transit, and also that the importer, with the consent of the seller, either returned the goods unused to him or destroyed them unused, the importer is entitled to obtain from the commissioners repayment of any customs duty paid on their importation. The foregoing, however, does not apply to goods imported on approval, or on sale or return, or on other similar terms." * It deals with the returning of goods or destroying the goods unused without acceptance and not where the goods have been accepted and used and the importer had been compensated for the reduction in standard. The learned counsel also referred to the decision in Biggin & Co. Ltd. v. Premanite Ltd., Berry Wiggins & Co. Ltd. ( 1951 (1) KB 422 : 1951 (2) ALLER 191, Cehave N.V. v. Bremer Handelsgesellschaft mbH ( 1975 (3) ALLER 739: 1975 (3) WLR 447), Ford Motor Company of India Ltd. v. Secretary of State for India ((1937-38) 65 IA 32 : 1938 AIR(PC) 15 : 1938 (1) MLJ 161); and Vacuum Oil Co. v. Secretary of State for India (LR (1932) 59 IA 258 : 1932 AIR(PC) 168 : 34 Bom LR 1057) 16. On the basis of these decisions, the learned counsel for the appellant contended that when the seller has allowed the reduction, the real price of the goods is that which has been accepted by the seller and that the assessment made on a higher value on the basis of the invoice price is in excess is refundable to the appellant 17. It is not necessary to elaborate on the principle stated in the decisions on the facts of the present case 18. It is admitted case of the appellants that the alleged inferior nature of goods discovered by the appellant after clearance. Until the refund application was made, no requisition appears to have been made to the customs authorities to have the value of the goods redetermined for the purpose of Section 22. The correspondence between the appellants and the sellers and their agents could only reveal that the appellant put forward a claim for compensation on the ground that the goods imported had become lumpy and was also of inferior standard. Ultimately the sellers agreed to reimburse the appellants and pay compensation to the tune of US $ 2, 40, 000. What appellants have received from the sellers is compensation for the damage for breach of warranty. It does not appear that the value was reduced or amount remitted by the appellant was the reduced value of the goods. The amount was the total compensation extended by the sellers to the appellants. From the fact of payment of compensation of reimbursement by the sellers it cannot be taken that at the time and place of importation the goods imported was worth only the amount stated in the invoice less the compensation paid. In other words, there is no proof that the real value of the goods at the time and place of importation was less than what had been entered in the invoice and stated in the Bill of Entry. So long as examination of the goods had not been made or its value re-assessed to the satisfaction of the assessing authorities, it cannot be said that duty was charged not on the real value of the goods but on a higher amount. The contention that the inherent defect in the supply of goods resulted in the diminution of the value of the goods cannot be countenanced when it is conceded that what had been paid by the seller is only compensation for the breach of warranty. Furthermore, there is no material or record to show that even by the team of experts there had been a re-assessment of the value of the goods. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained.
### Response:
0
### Explanation:
14. Thus, under the scheme of the Act, the importer is entitled to clear the goods on payment of duty assessed and such assessment is to be made with reference to the tariff value of the goods where tariff values are fixed. In other cases, the price at which the goods are ordinarily sold for delivery at the time and place of importation represents the tariff value for the purpose of the assessment. When the value is assessed on the basis of the invoice and the goods are cleared, the implication is that no remission is allowed and no abatement has been occasioned. There is no express provision which enables the proper officer to make a re-assessment for the purpose of remission on the ground that the goods at the time of their importation or at the time of the clearance was sub-standard or damaged and the invoice price does not represent the real value. Even if it is assumed that in view of the provisions contained in Section 28(a) enabling the proper officer to determine the amount of duty due in cases where duty has not been levied or has been short levied or erroneously refunded after issuing show cause notice, there is a corresponding right on the importer to claim refund of the excess duty levied, it is necessary for the importer to prove to the satisfaction of the proper officer that the goods at the time of the clearance were chargeable to a lesser or lower duty for anyone of the reasons contained in Section 22 which alone provides for abatement of duty. Any error in the assessment of the value by itself does not enable the importer to claim re-assessment or refund. It has necessarily to be shown that on account of the damaged or deteriorated condition of the imported goods before or during the unloading of the goods in India, the duty to be charged on the goods was proportionate to the value of the damaged or deteriorated goods. The question of redetermining the value of the imported goods can arise only in case where such damage or deterioration before the clearance is proved to the satisfaction of the proper officer. When there had been no indication of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid, the assessment would be binding. The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for providing sub-standard, damaged or deteriorated goods for the value in the invoice, and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to. That claim for damages cannot have any bearing to the assessment at the time of the clearance. The price at which the goods had been sold is represented by the invoice price and whatever amount is realized on subsequent agreement is only by way of compensation as damages. It cannot be said that the damages thus received represents the difference in price that had been paid and that ought to have been paid. When the seller had agreed to compensate the buyer for the quality of the goods imported, the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indicated in theIt is admitted case of the appellants that the alleged inferior nature of goods discovered by the appellant after clearance. Until the refund application was made, no requisition appears to have been made to the customs authorities to have the value of the goods redetermined for the purpose of Section 22. The correspondence between the appellants and the sellers and their agents could only reveal that the appellant put forward a claim for compensation on the ground that the goods imported had become lumpy and was also of inferior standard. Ultimately the sellers agreed to reimburse the appellants and pay compensation to the tune of US $ 2, 40, 000. What appellants have received from the sellers is compensation for the damage for breach of warranty. It does not appear that the value was reduced or amount remitted by the appellant was the reduced value of the goods. The amount was the total compensation extended by the sellers to the appellants. From the fact of payment of compensation of reimbursement by the sellers it cannot be taken that at the time and place of importation the goods imported was worth only the amount stated in the invoice less the compensation paid. In other words, there is no proof that the real value of the goods at the time and place of importation was less than what had been entered in the invoice and stated in the Bill of Entry. So long as examination of the goods had not been made or its value re-assessed to the satisfaction of the assessing authorities, it cannot be said that duty was charged not on the real value of the goods but on a higher amount. The contention that the inherent defect in the supply of goods resulted in the diminution of the value of the goods cannot be countenanced when it is conceded that what had been paid by the seller is only compensation for the breach of warranty. Furthermore, there is no material or record to show that even by the team of experts there had been a re-assessment of the value of the goods. What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated. That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abatement of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately entertained.
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Deputy Commissioner of Income Tax Vs. Raghuvir Synthetics Ltd | R.K. Agrawal, J.1. The present appeal arises out of the judgment and order dated June 14, 2005 passed by the High Court of Gujarat at Ahmedabad, in Tax Appeal No. 333 of 2004. The Respondent-Assessee is a public limited company and for the assessment year 1994-95, it had filed its return wherein it had claimed revenue expenditure of Rs. 65,47,448 on advertisement and public issue. However, in the return of income, the company made a claim that if the aforesaid claim cannot be considered as a revenue expenditure then alternatively the said expenditure may be allowed Under Section 35D of the Income-tax Act, 1961 (hereinafter referred to as "the Act") by way of capitalising in the plant and machinery obtained.2. The Assessing Officer issued an intimation Under Section 143(1)(a) of the Act on February 23, 1995 disallowing a sum of Rs. 58,92,700 out of the preliminary expenditure incurred on public issue. He, however, allowed one-tenth of the total expenses and raised demand on the balance amount.3. The intimation was challenged before the first appellate authority which vide order dated October 1, 1996, allowed the appeal by holding that the concept of "prima facie adjustment" Under Section 143(1)(a) of the Act cannot be invoked as there could be more than one opinion on whether public issue expenses were covered by Section 35D or Section 37 of the Act.4. Feeling aggrieved by the order passed by the first appellate authority, the Revenue preferred an appeal before the Income-tax Appellate Tribunal. The Tribunal vide order dated September 4, 2003 upheld the order of the Commissioner of Income-tax (Appeals) and dismissed the appeal filed by the Revenue.5. The Appellant preferred an appeal Under Section 260A of the Act before the High Court of Gujarat at Ahmedabad. The Division Bench of the High Court by the impugned order dismissed the appeal on the ground that a debatable issue cannot be disallowed while processing return of income Under Section 143(1)(a) of the Act.6. We have heard Mr. K. Radhakrishnan, learned Senior Counsel appearing for the Appellant. Nobody has put in appearance on behalf of the Respondent.7. Mr. K. Radhakrishnan, learned Senior Counsel relied upon the decisions of this court in Brooke Bond India Ltd. v. CIT [1997] 10 SCC 362 : [1997] 225 ITR 789 (SC) and Punjab State Industrial Development Corporation Ltd. v. CIT [1997] 10 SCC 184 : [1997] 225 ITR 792 (SC) to contend that the preliminary expenses incurred for public issue or for raising additional capital is only capital expenditure and not a revenue expense and, therefore, the law being settled by this court, it would relate back and would be held to be operative from the very inception.8. We find that there was a divergence of opinion between the various High Courts; one view being taken by the Madras High Court in CIT v. Kisenchand Chellaram (India) P. Ltd. [1981] 130 ITR 385 (Mad) , the Andhra Pradesh High Court in Warner Hindustan Ltd. v. CIT [1988] 171 ITR 224 (AP), the Kerala High Court in Federal Bank Ltd. v. CIT [1989] 180 ITR 241 (Ker) and the Karnataka High Court in Hindustan Machine Tools Ltd. (No. 3) v. CIT [1989] 175 ITR 220 (Karn) that the preliminary expenses incurred on raising a share capital is a revenue expenditure.9. On the other hand, a contrary view was expressed by the Allahabad High Court in CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) , the Himachal Pradesh High Court in Mohan Meakin Breweries Ltd. v. CIT (No. 2) [1979] 117 ITR 505 (HP), the Delhi High Court in Bharat Carbon and Ribbon Mfg. Co. Ltd. v. CIT [1981] 127 ITR 239 (Delhi), the Calcutta High Court in Brooke Bond India Ltd. v. CIT [1983] 140 ITR 272 (Cal) and Kesoram Industries and Cotton Mills Ltd. v. CIT [1992] 196 ITR 845 (Cal), the Bombay High Court in Bombay Burmah Trading Corporation Ltd. v. CIT [1984] 145 ITR 793 (Bom) , the Punjab and Haryana High Court in Groz-Beckert Saboo Ltd. v. CIT [1986] 160 ITR 743 (P & H), the Gujarat High Court in Ahmedabad Manufacturing and Calico (P.) Ltd. v. CIT [1986] 162 ITR 800 (Guj) and Alembic Glass Industries Ltd. v. CIT [1993] 202 ITR 214 (Guj), the Andhra Pradesh High Court in Vazir Sultan Tobacco Co. Ltd. v. CIT [1988] 174 ITR 689 (AP) and the Rajasthan High Court in CIT v. Aditya Mills [1990] 181 ITR 195 (Raj) and CIT v. Midti Metals Ltd. [1991] 188 ITR 151 (Raj), that the said expenses are capital expenditure and cannot be allowed as revenue expenditure.10. Even though it is a debatable issue but as the Gujarat High Court in the case of Ahmedabad Mfg. and Calico (P.) Ltd. (supra) had taken a view that it is capital expenditure which was subsequently followed by Alembic Glass Industries Ltd. v. CIT (supra) and the registered office of the Respondent-Assessee being in the State of Gujarat, the law laid down by the Gujarat High Court was binding. (See Taylor Instrument Co. (India) Ltd. v. CIT [1998] 232 ITR 771 (Delhi) , CGT v. J.K. Jain [1998] 230 ITR 839 (P & H), CIT v. Sunil Kumar [1995] 212 ITR 238 (Raj), CIT v. Thana Electricity Supply Ltd. [1994] 206 ITR 727 (Bom) , Indian Tube Co. Ltd. v. CIT [1993] 203 ITR 54 (Cal), CIT v. P.C. Joshi and B.C. Joshi [1993] 202 ITR 1017 (Bom) and CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 (SC) . Therefore, so far as the present case is concerned, it cannot be said that the issue was a debatable one. | 1[ds]8. We find that there was a divergence of opinion between the various High Courts; one view being taken by the Madras High Court in CIT v. Kisenchand Chellaram (India) P. Ltd. [1981] 130 ITR 385 (Mad) , the Andhra Pradesh High Court in Warner Hindustan Ltd. v. CIT [1988] 171 ITR 224 (AP), the Kerala High Court in Federal Bank Ltd. v. CIT [1989] 180 ITR 241 (Ker) and the Karnataka High Court in Hindustan Machine Tools Ltd. (No. 3) v. CIT [1989] 175 ITR 220 (Karn) that the preliminary expenses incurred on raising a share capital is a revenue expenditure9. On the other hand, a contrary view was expressed by the Allahabad High Court in CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) , the Himachal Pradesh High Court in Mohan Meakin Breweries Ltd. v. CIT (No. 2)[1979] 117 ITR 505 (HP), the Delhi High Court in Bharat Carbon and Ribbon Mfg. Co. Ltd. v. CIT [1981] 127 ITR 239 (Delhi), the Calcutta High Court in Brooke Bond India Ltd. v. CIT [1983] 140 ITR 272 (Cal) and Kesoram Industries and Cotton Mills Ltd. v. CIT [1992] 196 ITR 845 (Cal), the Bombay High Court in Bombay Burmah Trading Corporation Ltd. v. CIT [1984] 145 ITR 793 (Bom) , the Punjab and Haryana High Court in Groz-Beckert Saboo Ltd. v. CIT [1986] 160 ITR 743 (P & H), the Gujarat High Court in Ahmedabad Manufacturing and Calico (P.) Ltd. v. CIT [1986] 162 ITR 800 (Guj) and Alembic Glass Industries Ltd. v. CIT [1993] 202 ITR 214 (Guj), the Andhra Pradesh High Court in Vazir Sultan Tobacco Co. Ltd. v. CIT [1988] 174 ITR 689 (AP) and the Rajasthan High Court in CIT v. Aditya Mills [1990] 181 ITR 195 (Raj) and CIT v. Midti Metals Ltd. [1991] 188 ITR 151 (Raj), that the said expenses are capital expenditure and cannot be allowed as revenue expenditure10. Even though it is a debatable issue but as the Gujarat High Court in the case of Ahmedabad Mfg. and Calico (P.) Ltd. (supra) had taken a view that it is capital expenditure which was subsequently followed by Alembic Glass Industries Ltd. v. CIT (supra) and the registered office of the Respondent-Assessee being in the State of Gujarat, the law laid down by the Gujarat High Court was binding. (See Taylor Instrument Co. (India) Ltd. v. CIT [1998] 232 ITR 771 (Delhi) , CGT v. J.K. Jain [1998] 230 ITR 839 (P & H), CIT v. Sunil Kumar [1995] 212 ITR 238 (Raj), CIT v. Thana Electricity Supply Ltd. [1994] 206 ITR 727 (Bom) , Indian Tube Co. Ltd. v. CIT[1993] 203 ITR 54 (Cal), CIT v. P.C. Joshi and B.C. Joshi [1993] 202 ITR 1017 (Bom) and CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 (SC) . Therefore, so far as the present case is concerned, it cannot be said that the issue was a debatable one. | 1 | 1,156 | 638 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
R.K. Agrawal, J.1. The present appeal arises out of the judgment and order dated June 14, 2005 passed by the High Court of Gujarat at Ahmedabad, in Tax Appeal No. 333 of 2004. The Respondent-Assessee is a public limited company and for the assessment year 1994-95, it had filed its return wherein it had claimed revenue expenditure of Rs. 65,47,448 on advertisement and public issue. However, in the return of income, the company made a claim that if the aforesaid claim cannot be considered as a revenue expenditure then alternatively the said expenditure may be allowed Under Section 35D of the Income-tax Act, 1961 (hereinafter referred to as "the Act") by way of capitalising in the plant and machinery obtained.2. The Assessing Officer issued an intimation Under Section 143(1)(a) of the Act on February 23, 1995 disallowing a sum of Rs. 58,92,700 out of the preliminary expenditure incurred on public issue. He, however, allowed one-tenth of the total expenses and raised demand on the balance amount.3. The intimation was challenged before the first appellate authority which vide order dated October 1, 1996, allowed the appeal by holding that the concept of "prima facie adjustment" Under Section 143(1)(a) of the Act cannot be invoked as there could be more than one opinion on whether public issue expenses were covered by Section 35D or Section 37 of the Act.4. Feeling aggrieved by the order passed by the first appellate authority, the Revenue preferred an appeal before the Income-tax Appellate Tribunal. The Tribunal vide order dated September 4, 2003 upheld the order of the Commissioner of Income-tax (Appeals) and dismissed the appeal filed by the Revenue.5. The Appellant preferred an appeal Under Section 260A of the Act before the High Court of Gujarat at Ahmedabad. The Division Bench of the High Court by the impugned order dismissed the appeal on the ground that a debatable issue cannot be disallowed while processing return of income Under Section 143(1)(a) of the Act.6. We have heard Mr. K. Radhakrishnan, learned Senior Counsel appearing for the Appellant. Nobody has put in appearance on behalf of the Respondent.7. Mr. K. Radhakrishnan, learned Senior Counsel relied upon the decisions of this court in Brooke Bond India Ltd. v. CIT [1997] 10 SCC 362 : [1997] 225 ITR 789 (SC) and Punjab State Industrial Development Corporation Ltd. v. CIT [1997] 10 SCC 184 : [1997] 225 ITR 792 (SC) to contend that the preliminary expenses incurred for public issue or for raising additional capital is only capital expenditure and not a revenue expense and, therefore, the law being settled by this court, it would relate back and would be held to be operative from the very inception.8. We find that there was a divergence of opinion between the various High Courts; one view being taken by the Madras High Court in CIT v. Kisenchand Chellaram (India) P. Ltd. [1981] 130 ITR 385 (Mad) , the Andhra Pradesh High Court in Warner Hindustan Ltd. v. CIT [1988] 171 ITR 224 (AP), the Kerala High Court in Federal Bank Ltd. v. CIT [1989] 180 ITR 241 (Ker) and the Karnataka High Court in Hindustan Machine Tools Ltd. (No. 3) v. CIT [1989] 175 ITR 220 (Karn) that the preliminary expenses incurred on raising a share capital is a revenue expenditure.9. On the other hand, a contrary view was expressed by the Allahabad High Court in CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) , the Himachal Pradesh High Court in Mohan Meakin Breweries Ltd. v. CIT (No. 2) [1979] 117 ITR 505 (HP), the Delhi High Court in Bharat Carbon and Ribbon Mfg. Co. Ltd. v. CIT [1981] 127 ITR 239 (Delhi), the Calcutta High Court in Brooke Bond India Ltd. v. CIT [1983] 140 ITR 272 (Cal) and Kesoram Industries and Cotton Mills Ltd. v. CIT [1992] 196 ITR 845 (Cal), the Bombay High Court in Bombay Burmah Trading Corporation Ltd. v. CIT [1984] 145 ITR 793 (Bom) , the Punjab and Haryana High Court in Groz-Beckert Saboo Ltd. v. CIT [1986] 160 ITR 743 (P & H), the Gujarat High Court in Ahmedabad Manufacturing and Calico (P.) Ltd. v. CIT [1986] 162 ITR 800 (Guj) and Alembic Glass Industries Ltd. v. CIT [1993] 202 ITR 214 (Guj), the Andhra Pradesh High Court in Vazir Sultan Tobacco Co. Ltd. v. CIT [1988] 174 ITR 689 (AP) and the Rajasthan High Court in CIT v. Aditya Mills [1990] 181 ITR 195 (Raj) and CIT v. Midti Metals Ltd. [1991] 188 ITR 151 (Raj), that the said expenses are capital expenditure and cannot be allowed as revenue expenditure.10. Even though it is a debatable issue but as the Gujarat High Court in the case of Ahmedabad Mfg. and Calico (P.) Ltd. (supra) had taken a view that it is capital expenditure which was subsequently followed by Alembic Glass Industries Ltd. v. CIT (supra) and the registered office of the Respondent-Assessee being in the State of Gujarat, the law laid down by the Gujarat High Court was binding. (See Taylor Instrument Co. (India) Ltd. v. CIT [1998] 232 ITR 771 (Delhi) , CGT v. J.K. Jain [1998] 230 ITR 839 (P & H), CIT v. Sunil Kumar [1995] 212 ITR 238 (Raj), CIT v. Thana Electricity Supply Ltd. [1994] 206 ITR 727 (Bom) , Indian Tube Co. Ltd. v. CIT [1993] 203 ITR 54 (Cal), CIT v. P.C. Joshi and B.C. Joshi [1993] 202 ITR 1017 (Bom) and CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 (SC) . Therefore, so far as the present case is concerned, it cannot be said that the issue was a debatable one.
### Response:
1
### Explanation:
8. We find that there was a divergence of opinion between the various High Courts; one view being taken by the Madras High Court in CIT v. Kisenchand Chellaram (India) P. Ltd. [1981] 130 ITR 385 (Mad) , the Andhra Pradesh High Court in Warner Hindustan Ltd. v. CIT [1988] 171 ITR 224 (AP), the Kerala High Court in Federal Bank Ltd. v. CIT [1989] 180 ITR 241 (Ker) and the Karnataka High Court in Hindustan Machine Tools Ltd. (No. 3) v. CIT [1989] 175 ITR 220 (Karn) that the preliminary expenses incurred on raising a share capital is a revenue expenditure9. On the other hand, a contrary view was expressed by the Allahabad High Court in CIT v. Modi Spinning and Weaving Mills Co. Ltd. [1973] 89 ITR 304 (All) , the Himachal Pradesh High Court in Mohan Meakin Breweries Ltd. v. CIT (No. 2)[1979] 117 ITR 505 (HP), the Delhi High Court in Bharat Carbon and Ribbon Mfg. Co. Ltd. v. CIT [1981] 127 ITR 239 (Delhi), the Calcutta High Court in Brooke Bond India Ltd. v. CIT [1983] 140 ITR 272 (Cal) and Kesoram Industries and Cotton Mills Ltd. v. CIT [1992] 196 ITR 845 (Cal), the Bombay High Court in Bombay Burmah Trading Corporation Ltd. v. CIT [1984] 145 ITR 793 (Bom) , the Punjab and Haryana High Court in Groz-Beckert Saboo Ltd. v. CIT [1986] 160 ITR 743 (P & H), the Gujarat High Court in Ahmedabad Manufacturing and Calico (P.) Ltd. v. CIT [1986] 162 ITR 800 (Guj) and Alembic Glass Industries Ltd. v. CIT [1993] 202 ITR 214 (Guj), the Andhra Pradesh High Court in Vazir Sultan Tobacco Co. Ltd. v. CIT [1988] 174 ITR 689 (AP) and the Rajasthan High Court in CIT v. Aditya Mills [1990] 181 ITR 195 (Raj) and CIT v. Midti Metals Ltd. [1991] 188 ITR 151 (Raj), that the said expenses are capital expenditure and cannot be allowed as revenue expenditure10. Even though it is a debatable issue but as the Gujarat High Court in the case of Ahmedabad Mfg. and Calico (P.) Ltd. (supra) had taken a view that it is capital expenditure which was subsequently followed by Alembic Glass Industries Ltd. v. CIT (supra) and the registered office of the Respondent-Assessee being in the State of Gujarat, the law laid down by the Gujarat High Court was binding. (See Taylor Instrument Co. (India) Ltd. v. CIT [1998] 232 ITR 771 (Delhi) , CGT v. J.K. Jain [1998] 230 ITR 839 (P & H), CIT v. Sunil Kumar [1995] 212 ITR 238 (Raj), CIT v. Thana Electricity Supply Ltd. [1994] 206 ITR 727 (Bom) , Indian Tube Co. Ltd. v. CIT[1993] 203 ITR 54 (Cal), CIT v. P.C. Joshi and B.C. Joshi [1993] 202 ITR 1017 (Bom) and CIT v. Raja Benoy Kumar Sahas Roy [1957] 32 ITR 466 (SC) . Therefore, so far as the present case is concerned, it cannot be said that the issue was a debatable one.
|
Balai Chandra Mondal Vs. Indurekha Debi & Others | settlement of the land with the appellant was made with the consent of both the ostensible owner as well as the real owner, Indurekhas suit must be dismissed. Accordingly, he dismissed the suit. On appeal from this judgment, however, the Calcutta High Court set aside the learned subordinate judges order and decreed Indurekhas suit. The appellant has now come on appeal from the judgment of the High Court.3. The decision in this case must turn round the question as to whether Anadi had any authority to settle the land with the appellant. Admittedly no written authority for giving such settlement is in existence. There have been attempts on the part of the appellant to show at the time of trial that Anadi used to collect rents and used to manage the estate of Smarajit as well as of Indurekha. Even assuming that Anadi did so and had the authority to do so, we do not see how he could dispose of the property and give a substantial area of land in raiyati settlement to the appellant. We asked the learned counsel for the appellant again and again to show us some evidence, either oral or documentary, which would show that Anadi had authority to dispose of the property of Indurekha. Learned counsel, however, failed to do so. He asked us to infer from the fact that Anadi had been in management of this land before and after the plaintiff came into possession of it that he had the necessary authority to give an Amalnama in respect of the land. We see absolutely no justification for making such an inference.It is a thoroughly well-recognised principle that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Sec. 7 of the Transfer of Property Act only a person authorised to dispose of transferable property not his own is competent to transfer it either wholly or in part. The learned counsel for the appellant drew our attention to the fact that the unregistered deed of Amalnama on which the appellant bases his title describes Anadi as the manager of Smarajit and that one of the witnesses to the document was Annada Prasad De who has been described in the same deed as the authorised gomasta on behalf of Smarajit. It was argued that on the basis of the oral evidence and also having regard to the deed of Amalnama as well as the registered Kobala of 18 October, 1943 by which Smarajit transferrred the land to Indurekha, the inference is irresistible that Anadi must have been authorised to grant the Amalnama. We have gone through both the deed of Amalnama as well as the registered Kobala but we find no warrant for which an inference. There is merely a statement in the registered Kobala that Anadi was a local agent of Indurekhas husband and that he was instrumental in obtaining possession of the property through Court. We do not see how this connotes any authority to transfer or dispose of property on behalf of Indurekha. We have also gone through the oral evidence of the appellant carefully. Even he does not say anywhere that Anadi had the authority to dispose of property. He merely harps on the statement that Anadi was a manager of Smarajit. Indeed the evidence of the appellant himself shows that neither Smarajit nor Indurekha figured in any manner in the transaction leading to the settlement of the land with the appellant. The appellant admits that he had never seen any writing by Smarajit appointing Anadi as a Manager. Though he knew Smarajit he never had any discussion with him. He further admits that he did not go either to Indurekha for settlement or to Smarajit on any occasion whatsoever. Even so far as Annada is concerned the appellant admits that he had not seen any appointment letter from Anadi in favour of Annada. In this connection it should be mentioned that Indurekhas husband Panchu Gopal who according to the plaintiff looked after her property has stated clearly that Anadi was never a manager of his wifes estate and that he had never been entrusted with the work of "settling tenants, creating jamas, realising rents" in the mahal. Panchu Gopal also denies that Anadi was at any time Smarajits manager. As for Annada, Panchu Gopal admits that Annada used to work as a Naib before the land in question was bought by Smarajit as his wifes benamidar but he states clearly that no authority was given to Annada at any time to settle or induct tenants in the mahal. He further says that even in the Dakhilas or rent receipts which used to be issued on behalf of his wife, there is a clear mention that the person who received the rents had no authority to settle jamas. Panchu Gopal further stated that the appellant had not on any occasion approached him for settlement of the land. In view of all this we find it impossible to accept the appellants contention that Anadi had any authority to settle the land with him.4. It was urged on behalf of the appellant that there are certain rent receipts in evidence which indicate that the appellant had paid rents to Indurekha. It was sought to be contended that since Indurekha had accepted rents she should be estopped from denying the appellants title. We cannot persuade ourselves to accept this contention either. There is no evidence to show that the rents were collected from the appellant with the knowledge and consent of Indurekha. It has been suggested on her behalf that some dishonest gomastas had collected rents from the appellant and that these gomastas had neither renders accounts nor handed over these rents to her. It is significant that the rent receipts in question were never put to either Indurekha or her husband at the time of trial. No question of estoppel therefore arises and we reject the appellants contention based on estoppel. | 0[ds]It is a thoroughlyprinciple that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Sec. 7 of the Transfer of Property Act only a person authorised to dispose of transferable property not his own is competent to transfer it either wholly or in part. The learned counsel for the appellant drew our attention to the fact that the unregistered deed of Amalnama on which the appellant bases his title describes Anadi as the manager of Smarajit and that one of the witnesses to the document was Annada Prasad De who has been described in the same deed as the authorised gomasta on behalf of Smarajit. It was argued that on the basis of the oral evidence and also having regard to the deed of Amalnama as well as the registered Kobala of 18 October, 1943 by which Smarajit transferrred the land to Indurekha, the inference is irresistible that Anadi must have been authorised to grant the Amalnama. We have gone through both the deed of Amalnama as well as the registered Kobala but we find no warrant for which an inference. There is merely a statement in the registered Kobala that Anadi was a local agent of Indurekhas husband and that he was instrumental in obtaining possession of the property through Court. We do not see how this connotes any authority to transfer or dispose of property on behalf of Indurekha. We have also gone through the oral evidence of the appellant carefully. Even he does not say anywhere that Anadi had the authority to dispose of property. He merely harps on the statement that Anadi was a manager of Smarajit. Indeed the evidence of the appellant himself shows that neither Smarajit nor Indurekha figured in any manner in the transaction leading to the settlement of the land with the appellant. The appellant admits that he had never seen any writing by Smarajit appointing Anadi as a Manager. Though he knew Smarajit he never had any discussion with him. He further admits that he did not go either to Indurekha for settlement or to Smarajit on any occasion whatsoever. Even so far as Annada is concerned the appellant admits that he had not seen any appointment letter from Anadi in favour of Annada. In this connection it should be mentioned that Indurekhas husband Panchu Gopal who according to the plaintiff looked after her property has stated clearly that Anadi was never a manager of his wifes estate and that he had never been entrusted with the work of "settling tenants, creating jamas, realising rents" in the mahal. Panchu Gopal also denies that Anadi was at any time Smarajits manager. As for Annada, Panchu Gopal admits that Annada used to work as a Naib before the land in question was bought by Smarajit as his wifes benamidar but he states clearly that no authority was given to Annada at any time to settle or induct tenants in the mahal. He further says that even in the Dakhilas or rent receipts which used to be issued on behalf of his wife, there is a clear mention that the person who received the rents had no authority to settle jamas. Panchu Gopal further stated that the appellant had not on any occasion approached him for settlement of the land. In view of all this we find it impossible to accept the appellants contention that Anadi had any authority to settle the land with him.It was urged on behalf of the appellant that there are certain rent receipts in evidence which indicate that the appellant had paid rents to Indurekha. It was sought to be contended that since Indurekha had accepted rents she should be estopped from denying the appellants title.We cannot persuade ourselves to accept this contention either. There is no evidence to show that the rents were collected from the appellant with the knowledge and consent of Indurekha. It has been suggested on her behalf that some dishonest gomastas had collected rents from the appellant and that these gomastas had neither renders accounts nor handed over these rents to her. It is significant that the rent receipts in question were never put to either Indurekha or her husband at the time of trial. No question of estoppel therefore arises and we reject the appellants contention based on estoppel. | 0 | 1,660 | 768 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
settlement of the land with the appellant was made with the consent of both the ostensible owner as well as the real owner, Indurekhas suit must be dismissed. Accordingly, he dismissed the suit. On appeal from this judgment, however, the Calcutta High Court set aside the learned subordinate judges order and decreed Indurekhas suit. The appellant has now come on appeal from the judgment of the High Court.3. The decision in this case must turn round the question as to whether Anadi had any authority to settle the land with the appellant. Admittedly no written authority for giving such settlement is in existence. There have been attempts on the part of the appellant to show at the time of trial that Anadi used to collect rents and used to manage the estate of Smarajit as well as of Indurekha. Even assuming that Anadi did so and had the authority to do so, we do not see how he could dispose of the property and give a substantial area of land in raiyati settlement to the appellant. We asked the learned counsel for the appellant again and again to show us some evidence, either oral or documentary, which would show that Anadi had authority to dispose of the property of Indurekha. Learned counsel, however, failed to do so. He asked us to infer from the fact that Anadi had been in management of this land before and after the plaintiff came into possession of it that he had the necessary authority to give an Amalnama in respect of the land. We see absolutely no justification for making such an inference.It is a thoroughly well-recognised principle that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Sec. 7 of the Transfer of Property Act only a person authorised to dispose of transferable property not his own is competent to transfer it either wholly or in part. The learned counsel for the appellant drew our attention to the fact that the unregistered deed of Amalnama on which the appellant bases his title describes Anadi as the manager of Smarajit and that one of the witnesses to the document was Annada Prasad De who has been described in the same deed as the authorised gomasta on behalf of Smarajit. It was argued that on the basis of the oral evidence and also having regard to the deed of Amalnama as well as the registered Kobala of 18 October, 1943 by which Smarajit transferrred the land to Indurekha, the inference is irresistible that Anadi must have been authorised to grant the Amalnama. We have gone through both the deed of Amalnama as well as the registered Kobala but we find no warrant for which an inference. There is merely a statement in the registered Kobala that Anadi was a local agent of Indurekhas husband and that he was instrumental in obtaining possession of the property through Court. We do not see how this connotes any authority to transfer or dispose of property on behalf of Indurekha. We have also gone through the oral evidence of the appellant carefully. Even he does not say anywhere that Anadi had the authority to dispose of property. He merely harps on the statement that Anadi was a manager of Smarajit. Indeed the evidence of the appellant himself shows that neither Smarajit nor Indurekha figured in any manner in the transaction leading to the settlement of the land with the appellant. The appellant admits that he had never seen any writing by Smarajit appointing Anadi as a Manager. Though he knew Smarajit he never had any discussion with him. He further admits that he did not go either to Indurekha for settlement or to Smarajit on any occasion whatsoever. Even so far as Annada is concerned the appellant admits that he had not seen any appointment letter from Anadi in favour of Annada. In this connection it should be mentioned that Indurekhas husband Panchu Gopal who according to the plaintiff looked after her property has stated clearly that Anadi was never a manager of his wifes estate and that he had never been entrusted with the work of "settling tenants, creating jamas, realising rents" in the mahal. Panchu Gopal also denies that Anadi was at any time Smarajits manager. As for Annada, Panchu Gopal admits that Annada used to work as a Naib before the land in question was bought by Smarajit as his wifes benamidar but he states clearly that no authority was given to Annada at any time to settle or induct tenants in the mahal. He further says that even in the Dakhilas or rent receipts which used to be issued on behalf of his wife, there is a clear mention that the person who received the rents had no authority to settle jamas. Panchu Gopal further stated that the appellant had not on any occasion approached him for settlement of the land. In view of all this we find it impossible to accept the appellants contention that Anadi had any authority to settle the land with him.4. It was urged on behalf of the appellant that there are certain rent receipts in evidence which indicate that the appellant had paid rents to Indurekha. It was sought to be contended that since Indurekha had accepted rents she should be estopped from denying the appellants title. We cannot persuade ourselves to accept this contention either. There is no evidence to show that the rents were collected from the appellant with the knowledge and consent of Indurekha. It has been suggested on her behalf that some dishonest gomastas had collected rents from the appellant and that these gomastas had neither renders accounts nor handed over these rents to her. It is significant that the rent receipts in question were never put to either Indurekha or her husband at the time of trial. No question of estoppel therefore arises and we reject the appellants contention based on estoppel.
### Response:
0
### Explanation:
It is a thoroughlyprinciple that where the transferor himself has no title to the property he must at least have the authority to transfer it. Under Sec. 7 of the Transfer of Property Act only a person authorised to dispose of transferable property not his own is competent to transfer it either wholly or in part. The learned counsel for the appellant drew our attention to the fact that the unregistered deed of Amalnama on which the appellant bases his title describes Anadi as the manager of Smarajit and that one of the witnesses to the document was Annada Prasad De who has been described in the same deed as the authorised gomasta on behalf of Smarajit. It was argued that on the basis of the oral evidence and also having regard to the deed of Amalnama as well as the registered Kobala of 18 October, 1943 by which Smarajit transferrred the land to Indurekha, the inference is irresistible that Anadi must have been authorised to grant the Amalnama. We have gone through both the deed of Amalnama as well as the registered Kobala but we find no warrant for which an inference. There is merely a statement in the registered Kobala that Anadi was a local agent of Indurekhas husband and that he was instrumental in obtaining possession of the property through Court. We do not see how this connotes any authority to transfer or dispose of property on behalf of Indurekha. We have also gone through the oral evidence of the appellant carefully. Even he does not say anywhere that Anadi had the authority to dispose of property. He merely harps on the statement that Anadi was a manager of Smarajit. Indeed the evidence of the appellant himself shows that neither Smarajit nor Indurekha figured in any manner in the transaction leading to the settlement of the land with the appellant. The appellant admits that he had never seen any writing by Smarajit appointing Anadi as a Manager. Though he knew Smarajit he never had any discussion with him. He further admits that he did not go either to Indurekha for settlement or to Smarajit on any occasion whatsoever. Even so far as Annada is concerned the appellant admits that he had not seen any appointment letter from Anadi in favour of Annada. In this connection it should be mentioned that Indurekhas husband Panchu Gopal who according to the plaintiff looked after her property has stated clearly that Anadi was never a manager of his wifes estate and that he had never been entrusted with the work of "settling tenants, creating jamas, realising rents" in the mahal. Panchu Gopal also denies that Anadi was at any time Smarajits manager. As for Annada, Panchu Gopal admits that Annada used to work as a Naib before the land in question was bought by Smarajit as his wifes benamidar but he states clearly that no authority was given to Annada at any time to settle or induct tenants in the mahal. He further says that even in the Dakhilas or rent receipts which used to be issued on behalf of his wife, there is a clear mention that the person who received the rents had no authority to settle jamas. Panchu Gopal further stated that the appellant had not on any occasion approached him for settlement of the land. In view of all this we find it impossible to accept the appellants contention that Anadi had any authority to settle the land with him.It was urged on behalf of the appellant that there are certain rent receipts in evidence which indicate that the appellant had paid rents to Indurekha. It was sought to be contended that since Indurekha had accepted rents she should be estopped from denying the appellants title.We cannot persuade ourselves to accept this contention either. There is no evidence to show that the rents were collected from the appellant with the knowledge and consent of Indurekha. It has been suggested on her behalf that some dishonest gomastas had collected rents from the appellant and that these gomastas had neither renders accounts nor handed over these rents to her. It is significant that the rent receipts in question were never put to either Indurekha or her husband at the time of trial. No question of estoppel therefore arises and we reject the appellants contention based on estoppel.
|
Aluminium Corporation Of India Ltd Vs. Commissioner Of Income-Tax, West Bengal | the purpose of assessees business, as provided in Section 10 (2) (xv).8. The only reason that persuaded the High Court to come to the conclusion that the expenditure in question was not expended for the purpose of the assessees business was that in the accounting year all sales were directly effected by the assessee and no sale was effected by the selling agents. But the High Court overlooked clauses 6, 8 and 9 of the agreement referred to earlier. It also overlooked the significance of the fact that in the earlier years the commission paid to the selling agents had been considered as deductible expenditure. It also did not take notice of the contention of the assessee that though the sales were directly effected by the assessee, they were all canvassed by the selling agents.9. It is true that under S. 10 (2) (xv), it is for the Income-tax Officer to decide whether any remuneration paid by an assessee to his selling agents was wholly or exclusively expended for the purpose of his business. It is also true that the mere fact that the assessee establishes the existence of an agreement between him and his agents and the fact of actual payment, the discretion of the Income-tax Officer to consider whether the expenditure was made exclusively for the purpose of the business is not taken away - see the decision of this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P. (1967) 63 ITR 57 (SC). The expenditure incurred must be for commercial expediency. But as observed by this Court in Commissioner of Income-tax, Bombay v. Walchand and Co. Private Ltd. 65 ITR 381 = (AIR 1967 SC 1435 ) that in applying the text of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the revenue. In J. K. Woollen Manufacturers v. Commissioner of Income-tax U. P., 72 ITR 612 = (AIR 1969 SC 609 ) after applying the rule laid down in Walchand and Cos case (supra) that in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the income-tax department, this Court proceeded to observe :"It is, of course, open to the Appellate Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it."In the instant case, it not the case of the Revenue that the assessee did not pay the commission in question nor is its case that the expenditure in question was not incurred by the assessee in the character of a trader. Therefore the only question that remains to be considered is whether it was not expended wholly or exclusively for the purpose of the business of the assessee. The Tribunal after taking into consideration the various terms of the agreement as well as the significance of the deduction given in the earlier assessment years came to the conclusion that the Income-tax Officer and the Appellate Assistant Commissioner erred in their opinion that the expenditure was not incurred for any commercial expediency or that the agreement was not in force in the relevant accounting year. The Tribunal has given good reasons in support of its conclusion. The primary facts found by the Tribunal and the factual inference drawn therefrom was not open to review by the High Court.11-12. The High Court erroneously thought that the facts of this case fell within the ratio of the decision of this Court in Swadeshi Cotton Mills case, (1967) 63 ITR 57 (SC) (supra). The facts of that case were as follows: Therein appellant company was managing agents whose remuneration was an office allowance of Rupees 5,000/- per month and 10% of the net profits of the company. Under article 118 of the articles of association of the company, its directors were each entitled to a remuneration of Rs. 100 per month. At an extraordinary general meeting of its shareholders article 118 was amended to provide for the payment to the directors of a commission of 1% of the net profits of the company in addition to their monthly remuneration and as a result the five directors of the company became entitled to a sum of Rs. 28,218 each for the calendar year 1948. The Tribunal found that the payment of the commission to the directors was for extra commercial reasons on the grounds : (i) that they did not render any special service in that year (ii) that the management of the company was done by the managing agents and very little was done by the directors (iii) that the remuneration of Rs. 100 per month was not considered by the directors to be inadequate in earlier years (iv) that the increase in the companys profits by about Rs. 30 lakhs was due to the control of cloth having been lifted and not to any special exertion of the directors. On the basis of those findings which were all findings of fact, the Tribunal came to the conclusion that the commission paid to the directors cannot be considered as expenditure incurred wholly and exclusively for the purpose of the business. The High Court as well as this Court accepted the findings reached by the Tribunal. From the facts of that case, it is clear that the payment of commission made to the directors was not because of any commercial expediency but for collateral reasons. Hence the rule laid down in that decision is inapplicable to the facts of the present case.13 | 1[ds]In the instant case, it not the case of the Revenue that the assessee did not pay the commission in question nor is its case that the expenditure in question was not incurred by the assessee in the character of a trader. Therefore the only question that remains to be considered is whether it was not expended wholly or exclusively for the purpose of the business of the assessee. The Tribunal after taking into consideration the various terms of the agreement as well as the significance of the deduction given in the earlier assessment years came to the conclusion that the Income-tax Officer and the Appellate Assistant Commissioner erred in their opinion that the expenditure was not incurred for any commercial expediency or that the agreement was not in force in the relevant accounting year. The Tribunal has given good reasons in support of its conclusion. The primary facts found by the Tribunal and the factual inference drawn therefrom was not open to review by the High Court.11-12. The High Court erroneously thought that the facts of this case fell within the ratio of the decision of this Court in Swadeshi Cotton Mills case, (1967) 63 ITR 57 (SC) (supra). The facts of that case were as follows: Therein appellant company was managing agents whose remuneration was an office allowance of Rupees 5,000/- per month and 10% of the net profits of the company. Under article 118 of the articles of association of the company, its directors were each entitled to a remuneration of Rs. 100 per month. At an extraordinary general meeting of its shareholders article 118 was amended to provide for the payment to the directors of a commission of 1% of the net profits of the company in addition to their monthly remuneration and as a result the five directors of the company became entitled to a sum of Rs. 28,218 each for the calendar year 1948. The Tribunal found that the payment of the commission to the directors was for extra commercial reasons on the grounds : (i) that they did not render any special service in that year (ii) that the management of the company was done by the managing agents and very little was done by the directors (iii) that the remuneration of Rs. 100 per month was not considered by the directors to be inadequate in earlier years (iv) that the increase in the companys profits by about Rs. 30 lakhs was due to the control of cloth having been lifted and not to any special exertion of the directors. On the basis of those findings which were all findings of fact, the Tribunal came to the conclusion that the commission paid to the directors cannot be considered as expenditure incurred wholly and exclusively for the purpose of the business. The High Court as well as this Court accepted the findings reached by the Tribunal. From the facts of that case, it is clear that the payment of commission made to the directors was not because of any commercial expediency but for collateral reasons. Hence the rule laid down in that decision is inapplicable to the facts of the present case. | 1 | 2,833 | 573 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the purpose of assessees business, as provided in Section 10 (2) (xv).8. The only reason that persuaded the High Court to come to the conclusion that the expenditure in question was not expended for the purpose of the assessees business was that in the accounting year all sales were directly effected by the assessee and no sale was effected by the selling agents. But the High Court overlooked clauses 6, 8 and 9 of the agreement referred to earlier. It also overlooked the significance of the fact that in the earlier years the commission paid to the selling agents had been considered as deductible expenditure. It also did not take notice of the contention of the assessee that though the sales were directly effected by the assessee, they were all canvassed by the selling agents.9. It is true that under S. 10 (2) (xv), it is for the Income-tax Officer to decide whether any remuneration paid by an assessee to his selling agents was wholly or exclusively expended for the purpose of his business. It is also true that the mere fact that the assessee establishes the existence of an agreement between him and his agents and the fact of actual payment, the discretion of the Income-tax Officer to consider whether the expenditure was made exclusively for the purpose of the business is not taken away - see the decision of this Court in Swadeshi Cotton Mills Co. Ltd. v. Commr. of Income-tax, U. P. (1967) 63 ITR 57 (SC). The expenditure incurred must be for commercial expediency. But as observed by this Court in Commissioner of Income-tax, Bombay v. Walchand and Co. Private Ltd. 65 ITR 381 = (AIR 1967 SC 1435 ) that in applying the text of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the revenue. In J. K. Woollen Manufacturers v. Commissioner of Income-tax U. P., 72 ITR 612 = (AIR 1969 SC 609 ) after applying the rule laid down in Walchand and Cos case (supra) that in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, reasonableness of the expenditure has to be adjudged from the point of view of the businessman and not of the income-tax department, this Court proceeded to observe :"It is, of course, open to the Appellate Tribunal to come to a conclusion either that the alleged payment is not real or that it is not incurred by the assessee in the character of a trader or it is not laid out wholly and exclusively for the purpose of the business of the assessee and to disallow it."In the instant case, it not the case of the Revenue that the assessee did not pay the commission in question nor is its case that the expenditure in question was not incurred by the assessee in the character of a trader. Therefore the only question that remains to be considered is whether it was not expended wholly or exclusively for the purpose of the business of the assessee. The Tribunal after taking into consideration the various terms of the agreement as well as the significance of the deduction given in the earlier assessment years came to the conclusion that the Income-tax Officer and the Appellate Assistant Commissioner erred in their opinion that the expenditure was not incurred for any commercial expediency or that the agreement was not in force in the relevant accounting year. The Tribunal has given good reasons in support of its conclusion. The primary facts found by the Tribunal and the factual inference drawn therefrom was not open to review by the High Court.11-12. The High Court erroneously thought that the facts of this case fell within the ratio of the decision of this Court in Swadeshi Cotton Mills case, (1967) 63 ITR 57 (SC) (supra). The facts of that case were as follows: Therein appellant company was managing agents whose remuneration was an office allowance of Rupees 5,000/- per month and 10% of the net profits of the company. Under article 118 of the articles of association of the company, its directors were each entitled to a remuneration of Rs. 100 per month. At an extraordinary general meeting of its shareholders article 118 was amended to provide for the payment to the directors of a commission of 1% of the net profits of the company in addition to their monthly remuneration and as a result the five directors of the company became entitled to a sum of Rs. 28,218 each for the calendar year 1948. The Tribunal found that the payment of the commission to the directors was for extra commercial reasons on the grounds : (i) that they did not render any special service in that year (ii) that the management of the company was done by the managing agents and very little was done by the directors (iii) that the remuneration of Rs. 100 per month was not considered by the directors to be inadequate in earlier years (iv) that the increase in the companys profits by about Rs. 30 lakhs was due to the control of cloth having been lifted and not to any special exertion of the directors. On the basis of those findings which were all findings of fact, the Tribunal came to the conclusion that the commission paid to the directors cannot be considered as expenditure incurred wholly and exclusively for the purpose of the business. The High Court as well as this Court accepted the findings reached by the Tribunal. From the facts of that case, it is clear that the payment of commission made to the directors was not because of any commercial expediency but for collateral reasons. Hence the rule laid down in that decision is inapplicable to the facts of the present case.13
### Response:
1
### Explanation:
In the instant case, it not the case of the Revenue that the assessee did not pay the commission in question nor is its case that the expenditure in question was not incurred by the assessee in the character of a trader. Therefore the only question that remains to be considered is whether it was not expended wholly or exclusively for the purpose of the business of the assessee. The Tribunal after taking into consideration the various terms of the agreement as well as the significance of the deduction given in the earlier assessment years came to the conclusion that the Income-tax Officer and the Appellate Assistant Commissioner erred in their opinion that the expenditure was not incurred for any commercial expediency or that the agreement was not in force in the relevant accounting year. The Tribunal has given good reasons in support of its conclusion. The primary facts found by the Tribunal and the factual inference drawn therefrom was not open to review by the High Court.11-12. The High Court erroneously thought that the facts of this case fell within the ratio of the decision of this Court in Swadeshi Cotton Mills case, (1967) 63 ITR 57 (SC) (supra). The facts of that case were as follows: Therein appellant company was managing agents whose remuneration was an office allowance of Rupees 5,000/- per month and 10% of the net profits of the company. Under article 118 of the articles of association of the company, its directors were each entitled to a remuneration of Rs. 100 per month. At an extraordinary general meeting of its shareholders article 118 was amended to provide for the payment to the directors of a commission of 1% of the net profits of the company in addition to their monthly remuneration and as a result the five directors of the company became entitled to a sum of Rs. 28,218 each for the calendar year 1948. The Tribunal found that the payment of the commission to the directors was for extra commercial reasons on the grounds : (i) that they did not render any special service in that year (ii) that the management of the company was done by the managing agents and very little was done by the directors (iii) that the remuneration of Rs. 100 per month was not considered by the directors to be inadequate in earlier years (iv) that the increase in the companys profits by about Rs. 30 lakhs was due to the control of cloth having been lifted and not to any special exertion of the directors. On the basis of those findings which were all findings of fact, the Tribunal came to the conclusion that the commission paid to the directors cannot be considered as expenditure incurred wholly and exclusively for the purpose of the business. The High Court as well as this Court accepted the findings reached by the Tribunal. From the facts of that case, it is clear that the payment of commission made to the directors was not because of any commercial expediency but for collateral reasons. Hence the rule laid down in that decision is inapplicable to the facts of the present case.
|
M/S STAR WIRE (INDIA) VIDYUT PVT LTD Vs. HARYANA ELECTRICITY REGULATORY COMMISSION | done by the Commission in the suo moto proceedings initiated by it for revision of norms (for tariff operation for the second control period commencing from 1 st April, 2013). That order runs into over 100 typed pages and has analysed the necessity of revision vis¬à-vis each head to be reckoned for determination of tariff. The appellants had participated in the said proceedings. However, the stand taken by the appellants did not commend to the Commission, as can be discerned from the discussion in the order passed by it on 4 th August, 2015. Further, it was open to the appellants to approach the Commission by way of a review if they had any reservation with regard to the view taken by Commission in the said order. It was also open to the appellants to file appeal against the said order. However, without resorting to such remedies, the appellants chose to file writ petition and have raised grounds which are untenable in light of the discussion recorded by the Commission in its order dated 4 th August, 2015. It is certainly not a case of hostile discrimination considering the fact that Commission has recorded tangible reasons as to why the applicability of the revised regulations was required to be made prospective in respect of projects commissioned during FY 2013¬14. It is urged that the exercise of power in framing regulations ¬ be it principal Regulations or impugned Amended Regulations ¬ in terms of Section 61 read with Section 181 of the Electricity Act, 2003 permits classification on the basis of the date of commissioning of the project during the relevant period and which may inevitably result in providing for two sets of tariffs during the same control period. It is submitted that even though the impugned judgment of the High Court is brief, the conclusions reached therein are unexceptionable and therefore, this appeal ought to be dismissed.8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective. | 1[ds]8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective. | 1 | 3,961 | 748 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
done by the Commission in the suo moto proceedings initiated by it for revision of norms (for tariff operation for the second control period commencing from 1 st April, 2013). That order runs into over 100 typed pages and has analysed the necessity of revision vis¬à-vis each head to be reckoned for determination of tariff. The appellants had participated in the said proceedings. However, the stand taken by the appellants did not commend to the Commission, as can be discerned from the discussion in the order passed by it on 4 th August, 2015. Further, it was open to the appellants to approach the Commission by way of a review if they had any reservation with regard to the view taken by Commission in the said order. It was also open to the appellants to file appeal against the said order. However, without resorting to such remedies, the appellants chose to file writ petition and have raised grounds which are untenable in light of the discussion recorded by the Commission in its order dated 4 th August, 2015. It is certainly not a case of hostile discrimination considering the fact that Commission has recorded tangible reasons as to why the applicability of the revised regulations was required to be made prospective in respect of projects commissioned during FY 2013¬14. It is urged that the exercise of power in framing regulations ¬ be it principal Regulations or impugned Amended Regulations ¬ in terms of Section 61 read with Section 181 of the Electricity Act, 2003 permits classification on the basis of the date of commissioning of the project during the relevant period and which may inevitably result in providing for two sets of tariffs during the same control period. It is submitted that even though the impugned judgment of the High Court is brief, the conclusions reached therein are unexceptionable and therefore, this appeal ought to be dismissed.8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.
### Response:
1
### Explanation:
8. After perusing the impugned judgment, we have no hesitation in taking the view that the High Court has committed manifest error or so to speak, failed to exercise jurisdiction vested in it for adjudicating the relevant issues raised by the appellants. For, there is hardly any intelligible discussion in the impugned judgment in that regard. If we may say so, it is cryptic and cannot stand the test of judicial scrutiny. We say so because, up to paragraph 9 of the judgment the High Court has only reproduced the rival stand. Paragraph 11 refers to the relevant provisions. Paragraph 12 is mere narration of some facts concerning this case. Paragraph 13, broadly refers to the purport of the provisions in the principal Regulations and the impugned Amended Regulations. The discussion with regard to the merits of the challenge, can be discerned only from paragraph Nos.14 and 15 reproduced hitherto. Paragraph 14 even if fairly analysed, merely adverts to the argument of discriminatory application of regulations qua the appellant company and proceeds to reject the same. No logic can be deduced as to why the Court was persuaded to reject the argument despite the multifaceted issues raised by the appellants. The second sentence in the said paragraph then proceeds to record that the control period may be from FY 2013-14 onwards, however, the impugned Amended Regulations envisage application of revised norms to projects commissioned in FY 2013¬14 prospectively from the date of notification of the impugned Amended Regulations. In other words, the High Court has not analysed the grounds of challenge regarding the validity of the impugned Amended Regulations and including the competency to frame such a regulation, appropriately. Strikingly, the High Court then straightaway proceeds to examine the second contention raised by the appellants in reference to the third proviso in the principal Regulations providing for adjustments as per revised regulations. The Court merely noted that the appellants failed to point out any prejudice caused to them because of exclusion from the benefit flowing from the principal Regulations. The appellants, on the other hand, have invited our attention to the specific grounds taken by the appellants in the writ petition and also noted in the order of the Commission dated 4 th August, 2015 and additionally articulated in the ground No. B of the special leave petition, giving comparative chart indicating substantial disparity regarding the norms applicable as per principal Regulations and the impugned Amended Regulations. In other words, the argument of prejudice was raised by the appellants to the detail but the High Court has failed to deal with the same, to say the least satisfactorily. Similarly, the detail arguments regarding the validity of the impugned Amended Regulations and the competency to frame such a regulation has not been analysed by the High Court.9. Suffice it to observe that the discussion in two paragraphs (para 14 and 15), to say the least, is one of disposing of the writ petition in a most casual and cavalier manner. That cannot be countenanced. Having said this, we are of the considered opinion that it would be appropriate to relegate the parties before the High Court for fresh consideration of the writ petition on its own merits in accordance with law. We refrain from expressing any opinion either way on the merits of the controversy or the grounds of challenge regarding the impugned Amended Regulations. In other words, the High Court must consider all relevant aspects of the matter agitated by the appellants and deal with the same appropriately in accordance with law.10. For completion of the record, we must note the decision of the Constitution Bench of this Court in PTC India Ltd. Vs. Central Electricity Regulatory Commission, Through Secretary (2010) 4 SCC 603 , which has held that the challenge to the validity of the regulations can be decided only in judicial review proceedings before the courts and not by way of appeal or review. The appellants having invoked such a remedy before the High Court, all contentions available to the appellants in that regard ought to have been adjudicated in proper perspective.
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Har Prasad Choubey Vs. Union of India & Another | performing its functions. We see from Ext. P. 8 that the Private Secretary to the Minister wrote to the Coal Commissioner asking him to take personal interest in the matter and to arrange for refund, and the appellant was also informed with reference to his notice sent through his Lawyer dated 7-11-1949, that the matter was receiving attention. Even on 19th November, 1949 the Coal Commissioner wrote to the Chief Engineer, Bengal Nagpur Railway that it was not possible to allot wagons and that arrangements may be made for the cancellation of the sale and refund of the amount as advised by the Ministry of Industry and Supply (see Ext. P. 9) and the Chief Engineer wrote to the appellant on 21-12-1949 more than a year after the appellants successful bid, referring to the above letter from the Coal Commissioner, and informing the appellant that action was being taken as instructed by the Coal Commissioner, to dispose of the appellants case promptly. After all this, on 22nd December, 1949 Secretary to the Coal Commissioner wrote to the Chief Engineer that it was then possible to allot wagons for the movement of coal provided the auction purchaser was still interested in the movement of such coal. As would be apparent from the narration of the facts so far, this offer came too late. But it is interesting to note that it is on this letter that much of the defence to the appellants suit was relied upon. We have no hesitation in holding that by this time everybody, including the Ministry, the Railways and the Coal Commissioner had proceeded on the basis that the coal could not be removed from Kumhari and that the sale was to be cancelled and the appellants money refunded, and this letter will not in any way affect his claim. The appellant, therefore, rightly wrote on 9th January, 1950 that he was not in a position to take delivery of the coal and expressing his surprise at the offer to allot wagons at that stage, and asked for refund of his money immediately. He again wrote to the General Manager, Bengal Nagpur Railway on 27-2-1950 asking for refund in accordance with the letter from the Ministers Private Secretary dated 9th November, 1949, already referred to. It is interesting to note that somewhere in between the appellant had gone to the office of the Secretary, Railway Board and was told that the file relating to this matter had been lost and he therefore had sent copies of various correspondence (see Ext. P. 17). The Secretary, Railway Board, wrote an express letter on 19th February, 1951 to the General Manager, Bengal Nagpur Railway pointing out that the matter had been pending for more than two years and that information may be furnished without further delay. The subject-matter was cancellation of auction sale. The appellant again wrote to the Minister of State in the Ministry of Transport and Railway complaining about the failure to refund his money and mentioning the earlier history pointed out that his amount was not being refunded by the Railways because the responsibility for the loss in coal due to natural reasons could not be fixed and he wanted that he should not be driven to the courts. How true this is seen from the fact that the coal is said to have been ultimately disposed of for a paltry sum of Rs. 111/-.8. Finally, on 23-11-1951 the appellant sent a notice apparently under Section 80 of the Code of Civil Procedure, and received a reply on 24-12-1951 that according to the terms of the auction sale the Railway Administration was not liable to refund the purchase money, in spite of the fact that the Coal Commissioner issued a directive to the Bengal Nagpur Railway to refund the same. It is, therefore, clear that the Railways were avoiding responsibility for what had taken place and the appellant, therefore, filed the suit out of which this appeal arises. The learned Additional District Judge decreed the appellants suit but denied him the interest. The respondent filed an appeal to the High Court and the appellant filed a memorandum of cross objections in respect of his claim for interest which was disallowed by the lower Court. The High Court allowed the appeal and dismissed the appellants cross objections and this appeal has been filed by the appellant.9. This elaborate narration would make it clear that the appellant had bid for the coal under the honest and reasonable impression that he would be allowed to transport the coal to Ferozabad, that this was thwarted by the attitude of the Coal Commissioner, that later on the parties proceeded on the basis that the auction sale was to be cancelled and the appellant refunded his money. But apparently because by that time much of the coal had been lost and the Railways would have been in difficulty to explain the loss they chose to deny the appellants claim. We can see no justification on facts for such a denial and the defendants cannot refuse to refund the plaintiffs amount. The contract had become clearly frustrated. We must make it clear that we are not referring to the refusal to supply wagons but the refusal of the Coal Commissioner to allow the movement of coal to Ferozabad in spite of the fact that it was not one of the conditions of the auction. The appellant is, therefore, clearly entitled to the refund of his money. Furthermore, the contract itself not being in accordance with Section 175 of the Government of India Act is void and the appellant is entitled to the refund of his money. We are unable to understand the reasoning of the High Court when it proceeds as though the appellant was trying to enforce the contract. We can see no justification for the lower Court refusing to allow interest for the plaintiffs amount at least from the date of his demand, or the latest from the date of suit. | 1[ds]5. It would be apparent from narrative of the facts so far that the appellant who had come from Ferozabad to Kumhari, which is said to be 800 miles away, to purchase this slack coal would naturally have expected to have the wagon facility provided for transporting this coal to Ferozabad. There is, of course, nothing to show that he had made it a specific condition when he bid at the auction that wagons for transport should be provided. But it is implicit in the circumstances of this case that he expected it to be provided. As he had not been told that the coal was to be consumed locally and the Coal Commissioner had permitted the sale it cannot be said to be an unreasonable expectation on his part. If we take it that he was entitled to transport it to Ferozabad the attitude of the Coal Commissioner that the coal was to be consumed locally, a condition which was not communicated to the appellant when he bid for the coal, is clearly one which cannot be supported. The refusal to provide the wagons for the transport seems to be a way of enforcing a condition that the coal should be consumed locally. In this context the supply of wagons assumes a secondary place.6. Finding that he had to face a stone wall in the face of the refusal of the Coal Commissioner, the appellant approached the Minister of State in the Ministry of Transportation of the Government of India pointing out that no condition was imposed when he purchased the coal that it was to be locally consumed, that the Coal Commissioner was unnecessarily harassing him, that as the rainy season was fast approaching he feared that the coal dust would be spoiled if not removed, that the Transportation Manager of Bengal Nagpur Railway had told him that it was not possible to supply him wagons unless the Coal Transport Officer agreed, and asked for allotment of a sufficient number of wagons to transport the coal from Kumhari to Ferozabad. The appellant also seems to have apprised the Minister for Industry and Supply and in reply he was told by the Deputy Secretary, on behalf of the Minister, on 18th May, 1949 to sell the coal for consumption locally and if it was not possible to apply for cancellation of the auction sale and to ask for refund from the District Engineer, Nagpur and that the Coal Commissioner will attend to the distribution of the coal for local consumption. A copy of the letter was sent to the Coal Commissioner asking him to let him know whether it would be possible to utilize the coal locally and a suggestion was made that to avoid recurrence of cases of this type the Coal Commissioner should in future auction sales make it clear that rail transport for the movement of coal to other destinations will not be provided. This, of course, was a most reasonable view to take. Even then the appellant wrote on 7th June, 1949 to the Minister of Industries and Supply for allotment of wagons if not in one instalment at least at the rate of 10 wagons per month. At last onin sheer despair and having apparently no response to his letter of the 7th June he took the Ministers suggestion and wrote to the District Engineer, Nagpur for cancellation of the auction sale and refund of the money deposited by him. On the same day a letter went from the District Engineer to the appellant asking him to remove the coal or else to pay occupation fees. The appellant replied on 1st August, 1949 that as the Coal Commissioner had imposed a condition that the coal was to be consumed locally, the Ministry of Industry and Supply had advised him to ask for cancellation of the auction sale and to ask for refund of the money and accepting that advice he had applied for cancellation of the auction sale and refund of the money. Onhe again wrote another letter for refund of the money (though this letter is a little confused, the purport of it is quite clear). Even after this the Coal Commissioner continued to take the stand that no wagons could be allotted (see Ext. D. 3) but now there was no reference to the coal having to be consumed locally. Instead, it was said that the Director of Industry, C.P. and Berar was requested to assist in the disposal of this coal locally. On 24th September (see Ext. P. 6) the Chief Engineer of the Bengal Nagpur Railway wrote to the Coal Commissioner to arrange for allotment of the requisite wagons for transport of the coal. A copy of this was sent to the Financial Adviser and the Chief Accounts Officer to let him know if the amount of purchase was refundable. The Chief Engineer also wrote to the appellant on 20th October, 1949 that the Coal Commissioner was not in a position to allot wagons and that he had moved the Director of Industry, C.P. and Berar to assist in the disposal of the coal locally. This apparently refers to letter (Ext. D3) from the Coal Commissioner to the Chief Engineer, already referred to. It would thus be clear that till that date there was no offer of facilities for transport.7. Having exhausted all efforts the appellant ultimately issued a Lawyers notice on 7th November, 1949 giving the history of the whole case and how the Coal Commissioner had arbitrarily refused the movement of the coal and how the Minister of Industries had advised him to apply for cancellation of the auction sale and to ask for refund of his money. He had also stated therein that he had enquired from the District Engineer before purchasing the coal whether the Railway would afford reasonable facility for the movement of the coal to Ferozabad and that the District Engineer had assured him that they would do so. Whether this part of the statement found in the notice is correct or not, it is obvious that in the circumstances of this case the appellant would not have bid at the auction at all if he had been told that the coal would not be allowed to be moved out of Kumhari and no wagons would be provided for its transport. As suggested in the letter of the Minister of Industries and Supply, already referred to, that would be the most reasonable thing to do and in any case there was nothing unreasonable in appellants assuming that he would be allowed to remove the coal from Kumhari to Ferozabad and proceeding on that basis. Nobody did anything to dispel that impression. This is unfortunately a case of lack ofbetween one arm of Government and another and one of the arms, i.e. the Coal Commissioner putting all obstructions in the way of other arm performing its functions. We see from Ext. P. 8 that the Private Secretary to the Minister wrote to the Coal Commissioner asking him to take personal interest in the matter and to arrange for refund, and the appellant was also informed with reference to his notice sent through his Lawyer datedthat the matter was receiving attention. Even on 19th November, 1949 the Coal Commissioner wrote to the Chief Engineer, Bengal Nagpur Railway that it was not possible to allot wagons and that arrangements may be made for the cancellation of the sale and refund of the amount as advised by the Ministry of Industry and Supply (see Ext. P. 9) and the Chief Engineer wrote to the appellant onmore than a year after the appellants successful bid, referring to the above letter from the Coal Commissioner, and informing the appellant that action was being taken as instructed by the Coal Commissioner, to dispose of the appellants case promptly. After all this, on 22nd December, 1949 Secretary to the Coal Commissioner wrote to the Chief Engineer that it was then possible to allot wagons for the movement of coal provided the auction purchaser was still interested in the movement of such coal. As would be apparent from the narration of the facts so far, this offer came too late. But it is interesting to note that it is on this letter that much of the defence to the appellants suit was relied upon. We have no hesitation in holding that by this time everybody, including the Ministry, the Railways and the Coal Commissioner had proceeded on the basis that the coal could not be removed from Kumhari and that the sale was to be cancelled and the appellants money refunded, and this letter will not in any way affect his claim. The appellant, therefore, rightly wrote on 9th January, 1950 that he was not in a position to take delivery of the coal and expressing his surprise at the offer to allot wagons at that stage, and asked for refund of his money immediately. He again wrote to the General Manager, Bengal Nagpur Railway onasking for refund in accordance with the letter from the Ministers Private Secretary dated 9th November, 1949, already referred to. It is interesting to note that somewhere in between the appellant had gone to the office of the Secretary, Railway Board and was told that the file relating to this matter had been lost and he therefore had sent copies of various correspondence (see Ext. P. 17). The Secretary, Railway Board, wrote an express letter on 19th February, 1951 to the General Manager, Bengal Nagpur Railway pointing out that the matter had been pending for more than two years and that information may be furnished without further delay. The951 the appellant sent a notice apparently under Section 80 of the Code of Civil Procedure, and received a reply onthat according to the terms of the auction sale the Railway Administration was not liable to refund the purchase money, in spite of the fact that the Coal Commissioner issued a directive to the Bengal Nagpur Railway to refund the same. It is, therefore, clear that the Railways were avoiding responsibility for what had taken place and the appellant, therefore, filed the suit out of which this appeal arises. The learned Additional District Judge decreed the appellants suit but denied him the interest. The respondent filed an appeal to the High Court and the appellant filed a memorandum of cross objections in respect of his claim for interest which was disallowed by the lower Court. The High Court allowed the appeal and dismissed the appellants cross objections and this appeal has been filed by the appellant.9. This elaborate narration would make it clear that the appellant had bid for the coal under the honest and reasonable impression that he would be allowed to transport the coal to Ferozabad, that this was thwarted by the attitude of the Coal Commissioner, that later on the parties proceeded on the basis that the auction sale was to be cancelled and the appellant refunded his money. But apparently because by that time much of the coal had been lost and the Railways would have been in difficulty to explain the loss they chose to deny the appellants claim. We can see no justification on facts for such a denial and the defendants cannot refuse to refund the plaintiffs amount. The contract had become clearly frustrated. We must make it clear that we are not referring to the refusal to supply wagons but the refusal of the Coal Commissioner to allow the movement of coal to Ferozabad in spite of the fact that it was not one of the conditions of the auction. The appellant is, therefore, clearly entitled to the refund of his money. Furthermore, the contract itself not being in accordance with Section 175 of the Government of India Act is void and the appellant is entitled to the refund of his money. We are unable to understand the reasoning of the High Court when it proceeds as though the appellant was trying to enforce the contract. We can see no justification for the lower Court refusing to allow interest for the plaintiffs amount at least from the date of his demand, or the latest from the date of suit. | 1 | 3,195 | 2,187 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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performing its functions. We see from Ext. P. 8 that the Private Secretary to the Minister wrote to the Coal Commissioner asking him to take personal interest in the matter and to arrange for refund, and the appellant was also informed with reference to his notice sent through his Lawyer dated 7-11-1949, that the matter was receiving attention. Even on 19th November, 1949 the Coal Commissioner wrote to the Chief Engineer, Bengal Nagpur Railway that it was not possible to allot wagons and that arrangements may be made for the cancellation of the sale and refund of the amount as advised by the Ministry of Industry and Supply (see Ext. P. 9) and the Chief Engineer wrote to the appellant on 21-12-1949 more than a year after the appellants successful bid, referring to the above letter from the Coal Commissioner, and informing the appellant that action was being taken as instructed by the Coal Commissioner, to dispose of the appellants case promptly. After all this, on 22nd December, 1949 Secretary to the Coal Commissioner wrote to the Chief Engineer that it was then possible to allot wagons for the movement of coal provided the auction purchaser was still interested in the movement of such coal. As would be apparent from the narration of the facts so far, this offer came too late. But it is interesting to note that it is on this letter that much of the defence to the appellants suit was relied upon. We have no hesitation in holding that by this time everybody, including the Ministry, the Railways and the Coal Commissioner had proceeded on the basis that the coal could not be removed from Kumhari and that the sale was to be cancelled and the appellants money refunded, and this letter will not in any way affect his claim. The appellant, therefore, rightly wrote on 9th January, 1950 that he was not in a position to take delivery of the coal and expressing his surprise at the offer to allot wagons at that stage, and asked for refund of his money immediately. He again wrote to the General Manager, Bengal Nagpur Railway on 27-2-1950 asking for refund in accordance with the letter from the Ministers Private Secretary dated 9th November, 1949, already referred to. It is interesting to note that somewhere in between the appellant had gone to the office of the Secretary, Railway Board and was told that the file relating to this matter had been lost and he therefore had sent copies of various correspondence (see Ext. P. 17). The Secretary, Railway Board, wrote an express letter on 19th February, 1951 to the General Manager, Bengal Nagpur Railway pointing out that the matter had been pending for more than two years and that information may be furnished without further delay. The subject-matter was cancellation of auction sale. The appellant again wrote to the Minister of State in the Ministry of Transport and Railway complaining about the failure to refund his money and mentioning the earlier history pointed out that his amount was not being refunded by the Railways because the responsibility for the loss in coal due to natural reasons could not be fixed and he wanted that he should not be driven to the courts. How true this is seen from the fact that the coal is said to have been ultimately disposed of for a paltry sum of Rs. 111/-.8. Finally, on 23-11-1951 the appellant sent a notice apparently under Section 80 of the Code of Civil Procedure, and received a reply on 24-12-1951 that according to the terms of the auction sale the Railway Administration was not liable to refund the purchase money, in spite of the fact that the Coal Commissioner issued a directive to the Bengal Nagpur Railway to refund the same. It is, therefore, clear that the Railways were avoiding responsibility for what had taken place and the appellant, therefore, filed the suit out of which this appeal arises. The learned Additional District Judge decreed the appellants suit but denied him the interest. The respondent filed an appeal to the High Court and the appellant filed a memorandum of cross objections in respect of his claim for interest which was disallowed by the lower Court. The High Court allowed the appeal and dismissed the appellants cross objections and this appeal has been filed by the appellant.9. This elaborate narration would make it clear that the appellant had bid for the coal under the honest and reasonable impression that he would be allowed to transport the coal to Ferozabad, that this was thwarted by the attitude of the Coal Commissioner, that later on the parties proceeded on the basis that the auction sale was to be cancelled and the appellant refunded his money. But apparently because by that time much of the coal had been lost and the Railways would have been in difficulty to explain the loss they chose to deny the appellants claim. We can see no justification on facts for such a denial and the defendants cannot refuse to refund the plaintiffs amount. The contract had become clearly frustrated. We must make it clear that we are not referring to the refusal to supply wagons but the refusal of the Coal Commissioner to allow the movement of coal to Ferozabad in spite of the fact that it was not one of the conditions of the auction. The appellant is, therefore, clearly entitled to the refund of his money. Furthermore, the contract itself not being in accordance with Section 175 of the Government of India Act is void and the appellant is entitled to the refund of his money. We are unable to understand the reasoning of the High Court when it proceeds as though the appellant was trying to enforce the contract. We can see no justification for the lower Court refusing to allow interest for the plaintiffs amount at least from the date of his demand, or the latest from the date of suit.
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### Explanation:
coal would not be allowed to be moved out of Kumhari and no wagons would be provided for its transport. As suggested in the letter of the Minister of Industries and Supply, already referred to, that would be the most reasonable thing to do and in any case there was nothing unreasonable in appellants assuming that he would be allowed to remove the coal from Kumhari to Ferozabad and proceeding on that basis. Nobody did anything to dispel that impression. This is unfortunately a case of lack ofbetween one arm of Government and another and one of the arms, i.e. the Coal Commissioner putting all obstructions in the way of other arm performing its functions. We see from Ext. P. 8 that the Private Secretary to the Minister wrote to the Coal Commissioner asking him to take personal interest in the matter and to arrange for refund, and the appellant was also informed with reference to his notice sent through his Lawyer datedthat the matter was receiving attention. Even on 19th November, 1949 the Coal Commissioner wrote to the Chief Engineer, Bengal Nagpur Railway that it was not possible to allot wagons and that arrangements may be made for the cancellation of the sale and refund of the amount as advised by the Ministry of Industry and Supply (see Ext. P. 9) and the Chief Engineer wrote to the appellant onmore than a year after the appellants successful bid, referring to the above letter from the Coal Commissioner, and informing the appellant that action was being taken as instructed by the Coal Commissioner, to dispose of the appellants case promptly. After all this, on 22nd December, 1949 Secretary to the Coal Commissioner wrote to the Chief Engineer that it was then possible to allot wagons for the movement of coal provided the auction purchaser was still interested in the movement of such coal. As would be apparent from the narration of the facts so far, this offer came too late. But it is interesting to note that it is on this letter that much of the defence to the appellants suit was relied upon. We have no hesitation in holding that by this time everybody, including the Ministry, the Railways and the Coal Commissioner had proceeded on the basis that the coal could not be removed from Kumhari and that the sale was to be cancelled and the appellants money refunded, and this letter will not in any way affect his claim. The appellant, therefore, rightly wrote on 9th January, 1950 that he was not in a position to take delivery of the coal and expressing his surprise at the offer to allot wagons at that stage, and asked for refund of his money immediately. He again wrote to the General Manager, Bengal Nagpur Railway onasking for refund in accordance with the letter from the Ministers Private Secretary dated 9th November, 1949, already referred to. It is interesting to note that somewhere in between the appellant had gone to the office of the Secretary, Railway Board and was told that the file relating to this matter had been lost and he therefore had sent copies of various correspondence (see Ext. P. 17). The Secretary, Railway Board, wrote an express letter on 19th February, 1951 to the General Manager, Bengal Nagpur Railway pointing out that the matter had been pending for more than two years and that information may be furnished without further delay. The951 the appellant sent a notice apparently under Section 80 of the Code of Civil Procedure, and received a reply onthat according to the terms of the auction sale the Railway Administration was not liable to refund the purchase money, in spite of the fact that the Coal Commissioner issued a directive to the Bengal Nagpur Railway to refund the same. It is, therefore, clear that the Railways were avoiding responsibility for what had taken place and the appellant, therefore, filed the suit out of which this appeal arises. The learned Additional District Judge decreed the appellants suit but denied him the interest. The respondent filed an appeal to the High Court and the appellant filed a memorandum of cross objections in respect of his claim for interest which was disallowed by the lower Court. The High Court allowed the appeal and dismissed the appellants cross objections and this appeal has been filed by the appellant.9. This elaborate narration would make it clear that the appellant had bid for the coal under the honest and reasonable impression that he would be allowed to transport the coal to Ferozabad, that this was thwarted by the attitude of the Coal Commissioner, that later on the parties proceeded on the basis that the auction sale was to be cancelled and the appellant refunded his money. But apparently because by that time much of the coal had been lost and the Railways would have been in difficulty to explain the loss they chose to deny the appellants claim. We can see no justification on facts for such a denial and the defendants cannot refuse to refund the plaintiffs amount. The contract had become clearly frustrated. We must make it clear that we are not referring to the refusal to supply wagons but the refusal of the Coal Commissioner to allow the movement of coal to Ferozabad in spite of the fact that it was not one of the conditions of the auction. The appellant is, therefore, clearly entitled to the refund of his money. Furthermore, the contract itself not being in accordance with Section 175 of the Government of India Act is void and the appellant is entitled to the refund of his money. We are unable to understand the reasoning of the High Court when it proceeds as though the appellant was trying to enforce the contract. We can see no justification for the lower Court refusing to allow interest for the plaintiffs amount at least from the date of his demand, or the latest from the date of suit.
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Union of India and Another Vs. Ashutosh Kumar Srivastava and Another | marks out of 25 marks for the record of service also he must secure a minimum of 30 marks out of total 50 marks in the viva voce test; that there is no separate allocation of marks for personality, leadership, address, academic and technical qualifications etc. respondent No. 2 also filed an affidavit denying that he was related to Shri Sanjai Mittal. Respondent No. 1 thereafter filed a rejoinder affidavit alleging that respondent No. 2 is a cousin of one Shri J.P. Goel, who is the father-in-law of Shri Sanjai Mittal and that Shri J.P. Goel is also a senior batch-mate of respondent No. 2 in Roorkee University. 5. The Tribunal approached the matter in a rather strange way. Firstly, it took into consideration the allegation made by respondent No. 1 that Shri Sanjai Mittal is related to respondent No. 2. On that aspect no finding was recorded by the Tribunal, but it noted as follows :- "Thus, it is clear that Shri Sanjai Mittal, whether or not he was related to the respondent No. 3 was working as Secretary to respondent No. 3 on the date when the viva-voce test took place." 6. And, thereafter, the Tribunal referred to the transcript of tape indicating that during the course of viva voce test respondent No. 3 called his Secretary and told him that the applicant had only been in Vigilance Department and had no exposure to the filed work and, therefore, should be posted in the first as Inspector of Works. Thus, the association of respondent No. 2 and his Secretary was taken by the Tribunal to be sufficient to vitiate the interview. 7. In the first place, the Tribunal should have given a definite finding as to whether Shri Sanjai Mittal was related to respondent No. 2 or not and, if that ground failed, it should not have allowed respondent No. 1 to change his stance that somehow and in some other manner Shri Sanjai Mittal is connected with respondent No. 2. The Tribunal should not have proceeded on line proving moral indicated on one of Aescops Fable of the lamb and the wolf when the complaint was that the stream was being polluted by the lamb and if not by it by any of its forefathers. The approach of the Tribunal in this regard is by no reason good enough to chastise the said respondent No. 2 and condemn the proceedings conducted not only by him but other officers who are of equivalent rank. There is always a presumption in favour of administration that it exercises powers in good faith and for public benefit. The burden is on the individual to produce sufficient material to suggest of the mala fides of the concerned authority and it is not easy to discharge the same. 8. The Tribunal considered the tape recorded part of the interview and noticed as follows : "There is nothing wrong about the questions which sought to elicit the Applicants experience as the same is very relevant to his ability or the lack of it to handle work situations in the higher post. It is, however, the manner in which disparaging remarks were made about the Applicants lack of field experience which tends to indicate that the purpose of the question was not merely to elicit facts. That part (aparty ?), the very fact that the Secretary was called in during the interview the (and ?) was told about lack of field experience on the part of the applicant, is quite strange and cannot but give an impression that the Chairman of the Board was not making an objective assessment of the applicants mental attributes which are really the purpose of the viva voce test." On the basis, the Tribunal concluded that it was highly probable that the Secretary could have influenced the Chairman of the Selection Committee against respondent No. 1. This approach of the Tribunal is once again plainly fallacious. Firstly, the allegation was that the Chairman was biased because of his close relationship with Shri Sanjai Mittal and thereafter the proximity of the Secretary was considered sufficient to influence the Chairman of the Selection Committee. If this kind of approach is allowed, no administration can be safe and, therefore, we do not appreciate the manner in which the Tribunal proceeded in this matter.8. The Tribunal proceeded further to consider in what manner the interview should have been conducted, whether the marks should have been allotted in a particular manner or otherwise and whether awarding 3 marks out of total 25 marks was justified in the present case or not. So long as the bias of the Selection Committee could not be proved, the only aspect that the Tribunal ought to have considered was whether there was compliance with the relevant rules in the conduct of interview. 9. The Tribunal upheld the contention of the appellants that allotment of marks need not be faculty-wise and it is open to the members of the Selection Committee to make an over all assessment of the interviewed candidate. Again, the contention as regards tape-recording the questions and answers urged on behalf of respondent No. 1 was rejected. The Tribunal observed that over all assessment made by the Selection Committee and allocation of lump sum marks for the same, taken by itself, cannot be considered to have vitiated the test. However, the Tribunal proceeded to make its own assessment of respondent No. 1 by reference to his experience as a trainee for a commissioned post in Defence Services and what marks should have been alloted to him. The Tribunal also sat in judgment as to whether for academic and technical qualifications the marks allotted by the appellants to respondent No. 1 are justified or not.10. The Tribunal ought to have considered the matter in right perspective by considering the various contentions raised in the matter and not sit in judgment over the interview and allotted marks on its own and given the directions in the manner it did. | 0[ds]On the basis, the Tribunal concluded that it was highly probable that the Secretary could have influenced the Chairman of the Selection Committee against respondent No. 1. This approach of the Tribunal is once again plainly fallacious. Firstly, the allegation was that the Chairman was biased because of his close relationship with Shri Sanjai Mittal and thereafter the proximity of the Secretary was considered sufficient to influence the Chairman of the Selection Committee. If this kind of approach is allowed, no administration can be safe and, therefore, we do not appreciate the manner in which the Tribunal proceeded in this matter.8. The Tribunal proceeded further to consider in what manner the interview should have been conducted,whether the marks should have been allotted in a particular manner or otherwise and whether awarding 3 marks out of total 25 marks was justified in the present case orng as the bias of the Selection Committee could not be proved, the only aspect that the Tribunal ought to have considered was whether there was compliance with the relevant rules in the conduct of interview.The Tribunal upheld the contention of the appellants that allotment of marks need not beand it is open to the members of the Selection Committee to make an over all assessment of the interviewed candidate. Again, the contention as regardsthe questions and answers urged on behalf of respondent No. 1 was rejected. The Tribunal observed that over all assessment made by the Selection Committee and allocation of lump sum marks for the same, taken by itself, cannot be considered to have vitiated the test. However, the Tribunal proceeded to make its own assessment of respondent No. 1 by reference to his experience as a trainee for a commissioned post in Defence Services and what marks should have been alloted to him. The Tribunal also sat in judgment as to whether for academic and technical qualifications the marks allotted by the appellants to respondent No. 1 are justified or not.10. The Tribunal ought to have considered the matter in right perspective by considering the various contentions raised in the matter and not sit in judgment over the interview and allotted marks on its own and given the directions in the manner it did. | 0 | 2,061 | 402 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
marks out of 25 marks for the record of service also he must secure a minimum of 30 marks out of total 50 marks in the viva voce test; that there is no separate allocation of marks for personality, leadership, address, academic and technical qualifications etc. respondent No. 2 also filed an affidavit denying that he was related to Shri Sanjai Mittal. Respondent No. 1 thereafter filed a rejoinder affidavit alleging that respondent No. 2 is a cousin of one Shri J.P. Goel, who is the father-in-law of Shri Sanjai Mittal and that Shri J.P. Goel is also a senior batch-mate of respondent No. 2 in Roorkee University. 5. The Tribunal approached the matter in a rather strange way. Firstly, it took into consideration the allegation made by respondent No. 1 that Shri Sanjai Mittal is related to respondent No. 2. On that aspect no finding was recorded by the Tribunal, but it noted as follows :- "Thus, it is clear that Shri Sanjai Mittal, whether or not he was related to the respondent No. 3 was working as Secretary to respondent No. 3 on the date when the viva-voce test took place." 6. And, thereafter, the Tribunal referred to the transcript of tape indicating that during the course of viva voce test respondent No. 3 called his Secretary and told him that the applicant had only been in Vigilance Department and had no exposure to the filed work and, therefore, should be posted in the first as Inspector of Works. Thus, the association of respondent No. 2 and his Secretary was taken by the Tribunal to be sufficient to vitiate the interview. 7. In the first place, the Tribunal should have given a definite finding as to whether Shri Sanjai Mittal was related to respondent No. 2 or not and, if that ground failed, it should not have allowed respondent No. 1 to change his stance that somehow and in some other manner Shri Sanjai Mittal is connected with respondent No. 2. The Tribunal should not have proceeded on line proving moral indicated on one of Aescops Fable of the lamb and the wolf when the complaint was that the stream was being polluted by the lamb and if not by it by any of its forefathers. The approach of the Tribunal in this regard is by no reason good enough to chastise the said respondent No. 2 and condemn the proceedings conducted not only by him but other officers who are of equivalent rank. There is always a presumption in favour of administration that it exercises powers in good faith and for public benefit. The burden is on the individual to produce sufficient material to suggest of the mala fides of the concerned authority and it is not easy to discharge the same. 8. The Tribunal considered the tape recorded part of the interview and noticed as follows : "There is nothing wrong about the questions which sought to elicit the Applicants experience as the same is very relevant to his ability or the lack of it to handle work situations in the higher post. It is, however, the manner in which disparaging remarks were made about the Applicants lack of field experience which tends to indicate that the purpose of the question was not merely to elicit facts. That part (aparty ?), the very fact that the Secretary was called in during the interview the (and ?) was told about lack of field experience on the part of the applicant, is quite strange and cannot but give an impression that the Chairman of the Board was not making an objective assessment of the applicants mental attributes which are really the purpose of the viva voce test." On the basis, the Tribunal concluded that it was highly probable that the Secretary could have influenced the Chairman of the Selection Committee against respondent No. 1. This approach of the Tribunal is once again plainly fallacious. Firstly, the allegation was that the Chairman was biased because of his close relationship with Shri Sanjai Mittal and thereafter the proximity of the Secretary was considered sufficient to influence the Chairman of the Selection Committee. If this kind of approach is allowed, no administration can be safe and, therefore, we do not appreciate the manner in which the Tribunal proceeded in this matter.8. The Tribunal proceeded further to consider in what manner the interview should have been conducted, whether the marks should have been allotted in a particular manner or otherwise and whether awarding 3 marks out of total 25 marks was justified in the present case or not. So long as the bias of the Selection Committee could not be proved, the only aspect that the Tribunal ought to have considered was whether there was compliance with the relevant rules in the conduct of interview. 9. The Tribunal upheld the contention of the appellants that allotment of marks need not be faculty-wise and it is open to the members of the Selection Committee to make an over all assessment of the interviewed candidate. Again, the contention as regards tape-recording the questions and answers urged on behalf of respondent No. 1 was rejected. The Tribunal observed that over all assessment made by the Selection Committee and allocation of lump sum marks for the same, taken by itself, cannot be considered to have vitiated the test. However, the Tribunal proceeded to make its own assessment of respondent No. 1 by reference to his experience as a trainee for a commissioned post in Defence Services and what marks should have been alloted to him. The Tribunal also sat in judgment as to whether for academic and technical qualifications the marks allotted by the appellants to respondent No. 1 are justified or not.10. The Tribunal ought to have considered the matter in right perspective by considering the various contentions raised in the matter and not sit in judgment over the interview and allotted marks on its own and given the directions in the manner it did.
### Response:
0
### Explanation:
On the basis, the Tribunal concluded that it was highly probable that the Secretary could have influenced the Chairman of the Selection Committee against respondent No. 1. This approach of the Tribunal is once again plainly fallacious. Firstly, the allegation was that the Chairman was biased because of his close relationship with Shri Sanjai Mittal and thereafter the proximity of the Secretary was considered sufficient to influence the Chairman of the Selection Committee. If this kind of approach is allowed, no administration can be safe and, therefore, we do not appreciate the manner in which the Tribunal proceeded in this matter.8. The Tribunal proceeded further to consider in what manner the interview should have been conducted,whether the marks should have been allotted in a particular manner or otherwise and whether awarding 3 marks out of total 25 marks was justified in the present case orng as the bias of the Selection Committee could not be proved, the only aspect that the Tribunal ought to have considered was whether there was compliance with the relevant rules in the conduct of interview.The Tribunal upheld the contention of the appellants that allotment of marks need not beand it is open to the members of the Selection Committee to make an over all assessment of the interviewed candidate. Again, the contention as regardsthe questions and answers urged on behalf of respondent No. 1 was rejected. The Tribunal observed that over all assessment made by the Selection Committee and allocation of lump sum marks for the same, taken by itself, cannot be considered to have vitiated the test. However, the Tribunal proceeded to make its own assessment of respondent No. 1 by reference to his experience as a trainee for a commissioned post in Defence Services and what marks should have been alloted to him. The Tribunal also sat in judgment as to whether for academic and technical qualifications the marks allotted by the appellants to respondent No. 1 are justified or not.10. The Tribunal ought to have considered the matter in right perspective by considering the various contentions raised in the matter and not sit in judgment over the interview and allotted marks on its own and given the directions in the manner it did.
|
Vinod Kumar Vs. State Of Kerala | the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable. The following paragraph from Deelip Singh vs State of Bihar 2005 (1) SCC 88 , is extracted: 19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. 10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship. 11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found. | 1[ds]9. We are fully mindful receptive, conscious and concerned of the fact that the Appellant has been found guilty and has been punished by both the Courts below for the reprehensible crime of the rape of the prosecutrix. However, we consider that the verdict manifests a misunderstanding and misapplication of the law and misreading of the facts unraveled by the examination of the witnesses. Firstly, the prosecutrix is a graduate and even otherwise is not a gullible women of feeble intellect as is evident from her conduct in completing her examination successfully even on the eventful day, i.e. 19.4.2000. In fact she has displayed mental maturity of an advanced and unusual scale. We are convinced that she was aware that a legal marriage could not be performed and, therefore, was content for the time being that an agreement for marriage be executed. Secondly, the testimony of PW4 and PW5 independently indicates that the prosecutrix had been made aware by knowledgeable and independent persons that no legally efficacious marriage had occurred between the couple. Thirdly, this state of affairs can reasonably be deduced from the fact that, possibly on the prompting of the prosecutrix, the Appellant had consulted an Imam, who both the parties were aware, had not recommended the Appellants conversion to Islam, obviously because of his marital status and the law enunciated by this Court in this context. Palpably, had he been a bachelor at that time, there would have been no plausible reason for the Imams reluctance to carry out his conversion. Nay, in the ordinary course, he would have been welcomed to that faith, as well as by his prospective wifes family, making any opposition even by the latter totally improbable. For reasons recondite, the Imam has also not been examined by the prosecution. Fourthly, if he was a bachelor there would have been no impediment whastsoever for them to marry under the Special Marriage Act. Fifthly, we cannot discount the statement attributed to the prosecutrix that her faith permitted polygamy; on extrapolation it would indicate that she was aware that the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable.10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found. | 1 | 3,975 | 1,255 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable. The following paragraph from Deelip Singh vs State of Bihar 2005 (1) SCC 88 , is extracted: 19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. 10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship. 11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found.
### Response:
1
### Explanation:
of PW4 and PW5 independently indicates that the prosecutrix had been made aware by knowledgeable and independent persons that no legally efficacious marriage had occurred between the couple. Thirdly, this state of affairs can reasonably be deduced from the fact that, possibly on the prompting of the prosecutrix, the Appellant had consulted an Imam, who both the parties were aware, had not recommended the Appellants conversion to Islam, obviously because of his marital status and the law enunciated by this Court in this context. Palpably, had he been a bachelor at that time, there would have been no plausible reason for the Imams reluctance to carry out his conversion. Nay, in the ordinary course, he would have been welcomed to that faith, as well as by his prospective wifes family, making any opposition even by the latter totally improbable. For reasons recondite, the Imam has also not been examined by the prosecution. Fourthly, if he was a bachelor there would have been no impediment whastsoever for them to marry under the Special Marriage Act. Fifthly, we cannot discount the statement attributed to the prosecutrix that her faith permitted polygamy; on extrapolation it would indicate that she was aware that the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable.10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found.
|
Bejoy Singh Alias Vijay Narain Singh and Others Vs. State of West Bengal | the Sessions Court. Appellants Nos. 1 and 2 herein were sentenced to death. Appellants Nos. 3 and 4 and the remaining five were sentenced to imprisonment for life. On appeal, the High Court acquitted five of the accused and confirmed the conviction of all the four appellants but the sentence of death passed against appellants Nos. 1 and 2 reduced to imprisonment for life. 2. On 30th July 1984 at about 7.45 p.m. Teg Bahadur Singh, hereinafter referred to as the deceased, was in the company of his brother Arjun Singh, P.W. 3, Darshan Singh P.W. 13 and Pradeep Sharma P.W. 15 in Cotton Bazar, Calcutta after attending to a customer Ram Babu Gupta, P.W. 9. At about 7.45 p.m. the deceased left the shop and was proceeding towards the Guddy. Then all of a sudden, appellants Nos. 2 to 4 emerged and caught hold of his hands and legs. At that time appellant No. 1 came with two unknown persons on a motor-cycle and stopped at the spot where the deceased was held. Appellant No. 1 along with two unknown persons stabbed the deceased indiscriminately with knives. At that time the other accused in the case also came and shouted that the deceased should be finished. Then appellant No. 2 who had a knife in his hand thrust the knife in the abdomen of the deceased. The deceased fell down and the assailants ran away. P.W. 3 the brother of the deceased witnessed the occurrence. He could not apprehend anyone of them. P.W. 13 and 15 also were there. They removed the victim to the hospital. P.W. 3 gave a statement and Sub-Inspector of Police registered the crime. P.W. 22 the Investigating Officer took over the investigation. An inquest was held and the dead body was sent for post-mortem. P.W. 11 the Doctor, conducted the autopsy and he found a number of incised wounds all over the body. He also found injuries Nos. 8 to 13, 15 and 16 on the right and left hand and right and left forearm and the fingers. He opined that these injuries were defensive in nature. He also found an injury on the abdomen. On internal examination he found that vital organs were injured and death was due to these injuries. The Investigating Officer arrested the accused and at their instance it is alleged that he recovered some weapons. The prosecution mainly relied on the evidence of the three eye witnesses P.Ws. 3, 13 and 15. The learned Sessions Judge believed their evidence and convicted everyone of the accused as mentioned above. The High Court acquitted the five accused who are said to have come later. The rest of the prosecution case has been believed by the High Court. 3. Learned counsel for the appellants submits that the prosecution case that appellants Nos. 2 to 4 caught hold of the deceased is belied by the medical evidence. According to the Doctor there were a number of injuries on the hands, forearms and fingers and they were defensive in nature. The evidence of the eye witnesses is that the appellants Nos. 2 to 4 caught hold of the deceased. This vague allegation cannot be believed. The High Court mostly concentrated on the case of appellants Nos. 1 and 2. But, however, the High Court was not prepared to place reliance on the evidence of these witnesses in respect of other five accused. In our view, the same ratio applies to the case of appellants Nos. 2 to 4 so far as the allegation that they caught hold of the deceased goes. That apart, a number of injuries that are found on the deceased would also go to show that nobody could have held him in the manner spoken to by these witnesses. Having carefully considered the evidence and the facts and circumstances of the case and the medical evidence, we are of the view that the prosecution case suffers from a serious infirmity in respect of the allegation made against accused Nos. 2 to 4 namely that they caught hold of the deceased. If we look at the injuries and particularly on the hands and also on other parts of the body, the case that they caught hold of him falls to the ground and their conviction on the basis of this unsatisfactory evidence may result in miscarriage of justice. Therefore, interference is called for. So far as appellant No. 2 is concerned, a further allegation is that he has a knife and thrust it into the stomach after Bejoy Singh, appellant No. 1 and the two unknown persons stabbed him indiscriminately. This appears to be clearly an after-thought. In the earliest report given by P.W. 3 the principle witness, it is not mentioned at all that Ujagar Singh, appellant No. 2 had a knife and stabbed the deceased in the abdomen after Bejoy Singh, appellant No. 1 and the two unknown persons inflicted so many injuries on him. As a matter of fact is the FIR that only Bejoy Singh, appellant No. 1 and the two unknown assailants were cutting the deceased all over the body with their weapons and the three appellants including appellant No. 2 only held the deceased in such a way that he could not move and P.W. 3 went in front of his elder brother and on seeing him all the assailants ran away leaving the deceased. We are satisfied that the overt act attributed to appellant No. 2 namely that he stabbed the deceased is clearly an afterthought. Therefore this aspect of the prosecution case also is unacceptable. So far as the first appellant is concerned, the evidence against him is consistent. In the earliest report it is mentioned that he along with two unknown assailants came and stabbed the deceased. The evidence of P. Ws. 3, 13 and 15 also is consistent against him. It was he who brought the other two unknown assailants who also inflicted injuries on the deceased. The medical evidence also corroborates. | 1[ds]According to the Doctor there were a number of injuries on the hands, forearms and fingers and they were defensive in nature. The evidence of the eye witnesses is that the appellants Nos. 2 to 4 caught hold of the deceased. This vague allegation cannot be believed. The High Court mostly concentrated on the case of appellants Nos. 1 and 2. But, however, the High Court was not prepared to place reliance on the evidence of these witnesses in respect of other five accused. In our view, the same ratio applies to the case of appellants Nos. 2 to 4 so far as the allegation that they caught hold of the deceased goes. That apart, a number of injuries that are found on the deceased would also go to show that nobody could have held him in the manner spoken to by these witnesses. Having carefully considered the evidence and the facts and circumstances of the case and the medical evidence, we are of the view that the prosecution case suffers from a serious infirmity in respect of the allegation made against accused Nos. 2 to 4 namely that they caught hold of the deceased. If we look at the injuries and particularly on the hands and also on other parts of the body, the case that they caught hold of him falls to the ground and their conviction on the basis of this unsatisfactory evidence may result in miscarriage of justice. Therefore, interference is called for. So far as appellant No. 2 is concerned, a further allegation is that he has a knife and thrust it into the stomach after Bejoy Singh, appellant No. 1 and the two unknown persons stabbed him indiscriminately. This appears to be clearly anIn the earliest report given by P.W. 3 the principle witness, it is not mentioned at all that Ujagar Singh, appellant No. 2 had a knife and stabbed the deceased in the abdomen after Bejoy Singh, appellant No. 1 and the two unknown persons inflicted so many injuries on him. As a matter of fact is the FIR that only Bejoy Singh, appellant No. 1 and the two unknown assailants were cutting the deceased all over the body with their weapons and the three appellants including appellant No. 2 only held the deceased in such a way that he could not move and P.W. 3 went in front of his elder brother and on seeing him all the assailants ran away leaving the deceased. We are satisfied that the overt act attributed to appellant No. 2 namely that he stabbed the deceased is clearly an afterthought. Therefore this aspect of the prosecution case also is unacceptable. So far as the first appellant is concerned, the evidence against him is consistent. In the earliest report it is mentioned that he along with two unknown assailants came and stabbed the deceased. The evidence of P. Ws. 3, 13 and 15 also is consistent against him. It was he who brought the other two unknown assailants who also inflicted injuries on the deceased. The medical evidence also corroborates. | 1 | 1,172 | 569 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the Sessions Court. Appellants Nos. 1 and 2 herein were sentenced to death. Appellants Nos. 3 and 4 and the remaining five were sentenced to imprisonment for life. On appeal, the High Court acquitted five of the accused and confirmed the conviction of all the four appellants but the sentence of death passed against appellants Nos. 1 and 2 reduced to imprisonment for life. 2. On 30th July 1984 at about 7.45 p.m. Teg Bahadur Singh, hereinafter referred to as the deceased, was in the company of his brother Arjun Singh, P.W. 3, Darshan Singh P.W. 13 and Pradeep Sharma P.W. 15 in Cotton Bazar, Calcutta after attending to a customer Ram Babu Gupta, P.W. 9. At about 7.45 p.m. the deceased left the shop and was proceeding towards the Guddy. Then all of a sudden, appellants Nos. 2 to 4 emerged and caught hold of his hands and legs. At that time appellant No. 1 came with two unknown persons on a motor-cycle and stopped at the spot where the deceased was held. Appellant No. 1 along with two unknown persons stabbed the deceased indiscriminately with knives. At that time the other accused in the case also came and shouted that the deceased should be finished. Then appellant No. 2 who had a knife in his hand thrust the knife in the abdomen of the deceased. The deceased fell down and the assailants ran away. P.W. 3 the brother of the deceased witnessed the occurrence. He could not apprehend anyone of them. P.W. 13 and 15 also were there. They removed the victim to the hospital. P.W. 3 gave a statement and Sub-Inspector of Police registered the crime. P.W. 22 the Investigating Officer took over the investigation. An inquest was held and the dead body was sent for post-mortem. P.W. 11 the Doctor, conducted the autopsy and he found a number of incised wounds all over the body. He also found injuries Nos. 8 to 13, 15 and 16 on the right and left hand and right and left forearm and the fingers. He opined that these injuries were defensive in nature. He also found an injury on the abdomen. On internal examination he found that vital organs were injured and death was due to these injuries. The Investigating Officer arrested the accused and at their instance it is alleged that he recovered some weapons. The prosecution mainly relied on the evidence of the three eye witnesses P.Ws. 3, 13 and 15. The learned Sessions Judge believed their evidence and convicted everyone of the accused as mentioned above. The High Court acquitted the five accused who are said to have come later. The rest of the prosecution case has been believed by the High Court. 3. Learned counsel for the appellants submits that the prosecution case that appellants Nos. 2 to 4 caught hold of the deceased is belied by the medical evidence. According to the Doctor there were a number of injuries on the hands, forearms and fingers and they were defensive in nature. The evidence of the eye witnesses is that the appellants Nos. 2 to 4 caught hold of the deceased. This vague allegation cannot be believed. The High Court mostly concentrated on the case of appellants Nos. 1 and 2. But, however, the High Court was not prepared to place reliance on the evidence of these witnesses in respect of other five accused. In our view, the same ratio applies to the case of appellants Nos. 2 to 4 so far as the allegation that they caught hold of the deceased goes. That apart, a number of injuries that are found on the deceased would also go to show that nobody could have held him in the manner spoken to by these witnesses. Having carefully considered the evidence and the facts and circumstances of the case and the medical evidence, we are of the view that the prosecution case suffers from a serious infirmity in respect of the allegation made against accused Nos. 2 to 4 namely that they caught hold of the deceased. If we look at the injuries and particularly on the hands and also on other parts of the body, the case that they caught hold of him falls to the ground and their conviction on the basis of this unsatisfactory evidence may result in miscarriage of justice. Therefore, interference is called for. So far as appellant No. 2 is concerned, a further allegation is that he has a knife and thrust it into the stomach after Bejoy Singh, appellant No. 1 and the two unknown persons stabbed him indiscriminately. This appears to be clearly an after-thought. In the earliest report given by P.W. 3 the principle witness, it is not mentioned at all that Ujagar Singh, appellant No. 2 had a knife and stabbed the deceased in the abdomen after Bejoy Singh, appellant No. 1 and the two unknown persons inflicted so many injuries on him. As a matter of fact is the FIR that only Bejoy Singh, appellant No. 1 and the two unknown assailants were cutting the deceased all over the body with their weapons and the three appellants including appellant No. 2 only held the deceased in such a way that he could not move and P.W. 3 went in front of his elder brother and on seeing him all the assailants ran away leaving the deceased. We are satisfied that the overt act attributed to appellant No. 2 namely that he stabbed the deceased is clearly an afterthought. Therefore this aspect of the prosecution case also is unacceptable. So far as the first appellant is concerned, the evidence against him is consistent. In the earliest report it is mentioned that he along with two unknown assailants came and stabbed the deceased. The evidence of P. Ws. 3, 13 and 15 also is consistent against him. It was he who brought the other two unknown assailants who also inflicted injuries on the deceased. The medical evidence also corroborates.
### Response:
1
### Explanation:
According to the Doctor there were a number of injuries on the hands, forearms and fingers and they were defensive in nature. The evidence of the eye witnesses is that the appellants Nos. 2 to 4 caught hold of the deceased. This vague allegation cannot be believed. The High Court mostly concentrated on the case of appellants Nos. 1 and 2. But, however, the High Court was not prepared to place reliance on the evidence of these witnesses in respect of other five accused. In our view, the same ratio applies to the case of appellants Nos. 2 to 4 so far as the allegation that they caught hold of the deceased goes. That apart, a number of injuries that are found on the deceased would also go to show that nobody could have held him in the manner spoken to by these witnesses. Having carefully considered the evidence and the facts and circumstances of the case and the medical evidence, we are of the view that the prosecution case suffers from a serious infirmity in respect of the allegation made against accused Nos. 2 to 4 namely that they caught hold of the deceased. If we look at the injuries and particularly on the hands and also on other parts of the body, the case that they caught hold of him falls to the ground and their conviction on the basis of this unsatisfactory evidence may result in miscarriage of justice. Therefore, interference is called for. So far as appellant No. 2 is concerned, a further allegation is that he has a knife and thrust it into the stomach after Bejoy Singh, appellant No. 1 and the two unknown persons stabbed him indiscriminately. This appears to be clearly anIn the earliest report given by P.W. 3 the principle witness, it is not mentioned at all that Ujagar Singh, appellant No. 2 had a knife and stabbed the deceased in the abdomen after Bejoy Singh, appellant No. 1 and the two unknown persons inflicted so many injuries on him. As a matter of fact is the FIR that only Bejoy Singh, appellant No. 1 and the two unknown assailants were cutting the deceased all over the body with their weapons and the three appellants including appellant No. 2 only held the deceased in such a way that he could not move and P.W. 3 went in front of his elder brother and on seeing him all the assailants ran away leaving the deceased. We are satisfied that the overt act attributed to appellant No. 2 namely that he stabbed the deceased is clearly an afterthought. Therefore this aspect of the prosecution case also is unacceptable. So far as the first appellant is concerned, the evidence against him is consistent. In the earliest report it is mentioned that he along with two unknown assailants came and stabbed the deceased. The evidence of P. Ws. 3, 13 and 15 also is consistent against him. It was he who brought the other two unknown assailants who also inflicted injuries on the deceased. The medical evidence also corroborates.
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Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal, New Delhi | are fulfilled. Section 25Bs marginal title is "Definition of continuous service". To the extent that it is relevant S. 25B (2) as it now reads is as follow;"Where a workman is not in continuous service ....... for a period of one year or six months, he shall be deemed to be in continuous service under an employer -(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and(ii) two hundred and forty days in any other case;(b) ..............Explanation .........."The provision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any source.9. Now, S.25B was not always so worded. Prior to Act 26 of 1964, it read as follows :"For the purpose of Ss. 25C and 25F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one years continuous service in the industry.Explanation ..........."The difference between old 25-B and present 25-B is patent. The clause "where a workman is not in continuous service ..... for a period of one year" with which the present S. 25B(2) so significantly begins, was equally significantly absent from old S. 25B. Of the same degree of significance was the circumstances that prior to Act 36 of 1964 the expression "continuous service" was separately defined by S. 2 (eee) as follows :"(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;".Section2(eee) was omitted by the same Act 36 of 1964 in the which recast S. 25B. Section25B as it read prior to Act 36 of 1964, in the light of the then existing S. 2(eee) certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one years completed service so as to attract the provisions of S. 25F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Their Workman, [1963-II L.L.J. 367]. The Court said (at p. 370) :"On the plain terms of the S. 25F only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. Continuous service is defined in S. 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by one year of continuous service had been defined in S. 25B. Under this section a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service in the industry ........ The position, therefore, is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of S. 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months, and, next that during those 12 calendar months he had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months is becomes unnecessary to examine whether the actual days of work numbered 240 days or more ..........".Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other appellants. | 1[ds]7. In the cases before us we are unable to see any special impediment in the way of awarding the relief. The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with those who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter. First, they can never be no par since reinstatement would not qualify them for permanent absorption. They would continue to be temporary, liable to retrenched. Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction toprovision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other2. I entirely agree with my learned brother Chinnappa Reddy in the order proposed by him.13. The appeals raise strictly limited questions. The appeals by Usha Kumari and Madhubala involve the question whether they can be regarded as being in continuous service for a period of one year within the meaning of S. 25B(2), Industrial Disputes Act, 1947, and if so, to what relief would they be entitled. The remaining appeals require the Court to examine whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the IndustrialCourt. That is the entire scope of these appeals. No question arise before us whether the termination of the service of the appellants amount to "retrenchment" within the meaning of S.2(oo) of the Act. Theof India has apparently accepted the finding of the IndustrialCourt that the termination amounts to retrenchment. It has not preferred any appeal. I mention this only because I should not be taken to have agreed with the interpretation of S. 2(oo) rendered in Santosh Gupta v. State Bank of Patiala,L.L.J. 72].14. Proceeding on the footing mentioned above my learned brought Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revision of scale meanwhile, and subject to the further provision that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees. Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement will full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief. It has not been shown to us on behalf of the respondent why the ordinary rule should not be applied.15. On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced inthe Industrial Disputes Act, 1947, by Act No. 36 of 1964the deletion of S. 2(eee) and the substitution of the present S. 25B for the original sectionit is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of S. 25B. It is sufficient for the purposes of S. 25B(2)(a)(ii) that he has actually worked for not less than 240 days. The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen,L.L.J. 367], does not apply to situations governed by the subsequently substituted S.25B of the Act. | 1 | 3,311 | 991 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
are fulfilled. Section 25Bs marginal title is "Definition of continuous service". To the extent that it is relevant S. 25B (2) as it now reads is as follow;"Where a workman is not in continuous service ....... for a period of one year or six months, he shall be deemed to be in continuous service under an employer -(a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than -(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and(ii) two hundred and forty days in any other case;(b) ..............Explanation .........."The provision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any source.9. Now, S.25B was not always so worded. Prior to Act 26 of 1964, it read as follows :"For the purpose of Ss. 25C and 25F, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one years continuous service in the industry.Explanation ..........."The difference between old 25-B and present 25-B is patent. The clause "where a workman is not in continuous service ..... for a period of one year" with which the present S. 25B(2) so significantly begins, was equally significantly absent from old S. 25B. Of the same degree of significance was the circumstances that prior to Act 36 of 1964 the expression "continuous service" was separately defined by S. 2 (eee) as follows :"(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or lock-out or a cessation of work which is not due to any fault on the part of the workman;".Section2(eee) was omitted by the same Act 36 of 1964 in the which recast S. 25B. Section25B as it read prior to Act 36 of 1964, in the light of the then existing S. 2(eee) certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one years completed service so as to attract the provisions of S. 25F. That precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Their Workman, [1963-II L.L.J. 367]. The Court said (at p. 370) :"On the plain terms of the S. 25F only a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. Continuous service is defined in S. 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or a lock-out or a cessation of work which is not due to any fault on the part of the workman. What is meant by one year of continuous service had been defined in S. 25B. Under this section a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than 240 days shall be deemed to have completed one year of continuous service in the industry ........ The position, therefore, is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of S. 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months, and, next that during those 12 calendar months he had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months is becomes unnecessary to examine whether the actual days of work numbered 240 days or more ..........".Act 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other appellants.
### Response:
1
### Explanation:
7. In the cases before us we are unable to see any special impediment in the way of awarding the relief. The Labour Court appears to have thought that the award of the relief of reinstatement with full back wages would put these workmen on a par with those who had qualified for permanent absorption by passing the prescribed test and that would create dissatisfaction amongst the latter. First, they can never be no par since reinstatement would not qualify them for permanent absorption. They would continue to be temporary, liable to retrenched. Second, there is not a shred of evidence to suggest that their reinstatement would be a cause for dissatisfaction toprovision appears to be plain enough. Section 25F requires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present S. 25B (2) steps in an says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need hot be, That appears to be the plain meaning without gloss from any36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S. 25B(2) now begins with the clause where a workman is not in continuous service ...... for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. We hold that Usha Kumari and Madhubala are in the same position as the other2. I entirely agree with my learned brother Chinnappa Reddy in the order proposed by him.13. The appeals raise strictly limited questions. The appeals by Usha Kumari and Madhubala involve the question whether they can be regarded as being in continuous service for a period of one year within the meaning of S. 25B(2), Industrial Disputes Act, 1947, and if so, to what relief would they be entitled. The remaining appeals require the Court to examine whether the appellants should have been awarded reinstatement with back wages instead of the curtailed relief granted by the IndustrialCourt. That is the entire scope of these appeals. No question arise before us whether the termination of the service of the appellants amount to "retrenchment" within the meaning of S.2(oo) of the Act. Theof India has apparently accepted the finding of the IndustrialCourt that the termination amounts to retrenchment. It has not preferred any appeal. I mention this only because I should not be taken to have agreed with the interpretation of S. 2(oo) rendered in Santosh Gupta v. State Bank of Patiala,L.L.J. 72].14. Proceeding on the footing mentioned above my learned brought Chinnappa Reddy has, I say with respect, rightly concluded that on the facts and circumstances before us the appellants should be reinstated with full back wages subject to the proviso that the salary on reinstatement will be the salary drawn by the respective appellants on the date of their retrenchment, qualified by the impact of any revision of scale meanwhile, and subject to the further provision that the period intervening between the date of retrenchment and the date of reinstatement will be omitted from account in the determination of the seniority of these appellants among temporary employees. Ordinarily, a workman who has been retrenched in contravention of the law is entitled to reinstatement will full back wages and that principle yields only where the justice of the case in the light of the particular facts indicates the desirability of a different relief. It has not been shown to us on behalf of the respondent why the ordinary rule should not be applied.15. On the other question decided by my learned brother I have no hesitation in agreeing that having regard to the simultaneous amendments introduced inthe Industrial Disputes Act, 1947, by Act No. 36 of 1964the deletion of S. 2(eee) and the substitution of the present S. 25B for the original sectionit is no longer necessary for a workman to show that he has been in employment during a preceding period of twelve calendar months in order to qualify within the terms of S. 25B. It is sufficient for the purposes of S. 25B(2)(a)(ii) that he has actually worked for not less than 240 days. The law declared by this Court in Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen,L.L.J. 367], does not apply to situations governed by the subsequently substituted S.25B of the Act.
|
Subrata Chattoraj & Another Vs. Union of India & Others | 25 lac claims have so far been received by the Commissions of Enquiries set up in the States of Odisha and West Bengal which is indicative of the magnitude of scam in terms of number of citizens that have been defrauded by the ponzi companies. 4. That the companies indulge in ponzi schemes have their tentacles in different States giving the scam inter-state ramifications. That such huge collections could have international money laundering dimensions cannot be ruled out and needs to be effectively investigated. 5. That Investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence. 6. That the role of regulators like SEBI, authorities under the Companies Act and the Reserve Bank of India is also under investigation by the State Police Agency which may have to be taken to its logical conclusion by an effective and independent investigation. 31. The question is whether the above features call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative. Each one of the aspects set out above in our view calls for investigation by an independent agency like the Central Bureau of Investigation (CBI). That is because apart from the sensitivity of the issues involved especially inter-state ramifications of the scam under investigation, transfer of cases from the State police have been ordered by this Court also with a view to ensure credibility of such investigation in the public perception. Transfers have been ordered by this Court even in cases where the family members of victim killed in a firing incident had expressed apprehensions about the fairness of the investigation and prayed for entrusting the matter to a credible and effective agency like the CBI. Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book. The question, however, is not whether the State police has faltered. The question is whether what is done by the State police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-state ramifications, which the Investigating Agencies need to examine but are handicapped in examining. 32. M/s Vaidyanathan and Gopal Subramanium, learned counsel for the States of West Bengal and Odisha respectively argued that the CBI itself has in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past. Similar sentiments were expressed by Mr. P.V. Shetty appearing on behalf of some of the investors and some other intervenors, who followed suit to pursue a similar line of argument. 33. There is, in our opinion, no basis of the apprehension expressed by the State Governments. It is true that a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence. We cannot, therefore, decline transfer of the cases only because of certain stray observations or misplaced apprehensions expressed by those connected with the scam or those likely to be affected by the investigation. We may in this regard gainfully extract the following passage from the decision of this Court in Sanjiv Kumar v. State of Haryana and Others (2005) 5 SCC 517, where this Court has lauded the CBI as an independent agency that is not only capable of but actually shows results: 15. In the peculiar facts and circumstances of the case, looking at the nature of the allegations made and the mighty people who are alleged to be involved, we are of the opinion, that the better option of the two is to entrust the matter to investigation by CBI. We are well aware, as was also told to us during the course of hearing, that the hands of CBI are full and the present one would be an additional load on their head to carry. Yet, the fact remains that CBI as a Central investigating agency enjoys independence and confidence of the people. It can fix its priorities and programme the progress of investigation suitably so as to see that any inevitable delay does not prejudice the investigation of the present case. They can think of acting fast for the purpose of collecting such vital evidence, oral and documentary, which runs the risk of being obliterated by lapse of time. The rest can afford to wait for a while. We hope that the investigation would be entrusted by the Director, CBI to an officer of unquestioned independence and then monitored so as to reach a successful conclusion; the truth is discovered and the guilty dragged into the net of law. Little people of this country, have high hopes from CBI, the prime investigating agency which works and gives results. We hope and trust the sentinels in CBI would justify the confidence of the people and this Court reposed in them. | 1[ds]31. The question is whether the above features call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative. Each one of the aspects set out above in our view calls for investigation by an independent agency like the Central Bureau of Investigation (CBI). That is because apart from the sensitivity of the issues involved especially inter-state ramifications of the scam under investigation, transfer of cases from the State police have been ordered by this Court also with a view to ensure credibility of such investigation in the public perception. Transfers have been ordered by this Court even in cases where the family members of victim killed in a firing incident had expressed apprehensions about the fairness of the investigation and prayed for entrusting the matter to a credible and effective agency like the CBI. Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book. The question, however, is not whether the State police has faltered. The question is whether what is done by the State police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-state ramifications, which the Investigating Agencies need to examine but are handicapped in examining32. M/s Vaidyanathan and Gopal Subramanium, learned counsel for the States of West Bengal and Odisha respectively argued that the CBI itself has in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past. Similar sentiments were expressed by Mr. P.V. Shetty appearing on behalf of some of the investors and some other intervenors, who followed suit to pursue a similar line of argument33. There is, in our opinion, no basis of the apprehension expressed by the State Governments. It is true that a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence. We cannot, therefore, decline transfer of the cases only because of certain stray observations or misplaced apprehensions expressed by those connected with the scam or those likely to be affected by the investigation. We may in this regard gainfully extract the following passage from the decision of this Court in Sanjiv Kumar v. State of Haryana and Others (2005) 5 SCC 517, where this Court has lauded the CBI as an independent agency that is not only capable of but actually shows results: | 1 | 9,821 | 645 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
25 lac claims have so far been received by the Commissions of Enquiries set up in the States of Odisha and West Bengal which is indicative of the magnitude of scam in terms of number of citizens that have been defrauded by the ponzi companies. 4. That the companies indulge in ponzi schemes have their tentacles in different States giving the scam inter-state ramifications. That such huge collections could have international money laundering dimensions cannot be ruled out and needs to be effectively investigated. 5. That Investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence. 6. That the role of regulators like SEBI, authorities under the Companies Act and the Reserve Bank of India is also under investigation by the State Police Agency which may have to be taken to its logical conclusion by an effective and independent investigation. 31. The question is whether the above features call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative. Each one of the aspects set out above in our view calls for investigation by an independent agency like the Central Bureau of Investigation (CBI). That is because apart from the sensitivity of the issues involved especially inter-state ramifications of the scam under investigation, transfer of cases from the State police have been ordered by this Court also with a view to ensure credibility of such investigation in the public perception. Transfers have been ordered by this Court even in cases where the family members of victim killed in a firing incident had expressed apprehensions about the fairness of the investigation and prayed for entrusting the matter to a credible and effective agency like the CBI. Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book. The question, however, is not whether the State police has faltered. The question is whether what is done by the State police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-state ramifications, which the Investigating Agencies need to examine but are handicapped in examining. 32. M/s Vaidyanathan and Gopal Subramanium, learned counsel for the States of West Bengal and Odisha respectively argued that the CBI itself has in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past. Similar sentiments were expressed by Mr. P.V. Shetty appearing on behalf of some of the investors and some other intervenors, who followed suit to pursue a similar line of argument. 33. There is, in our opinion, no basis of the apprehension expressed by the State Governments. It is true that a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence. We cannot, therefore, decline transfer of the cases only because of certain stray observations or misplaced apprehensions expressed by those connected with the scam or those likely to be affected by the investigation. We may in this regard gainfully extract the following passage from the decision of this Court in Sanjiv Kumar v. State of Haryana and Others (2005) 5 SCC 517, where this Court has lauded the CBI as an independent agency that is not only capable of but actually shows results: 15. In the peculiar facts and circumstances of the case, looking at the nature of the allegations made and the mighty people who are alleged to be involved, we are of the opinion, that the better option of the two is to entrust the matter to investigation by CBI. We are well aware, as was also told to us during the course of hearing, that the hands of CBI are full and the present one would be an additional load on their head to carry. Yet, the fact remains that CBI as a Central investigating agency enjoys independence and confidence of the people. It can fix its priorities and programme the progress of investigation suitably so as to see that any inevitable delay does not prejudice the investigation of the present case. They can think of acting fast for the purpose of collecting such vital evidence, oral and documentary, which runs the risk of being obliterated by lapse of time. The rest can afford to wait for a while. We hope that the investigation would be entrusted by the Director, CBI to an officer of unquestioned independence and then monitored so as to reach a successful conclusion; the truth is discovered and the guilty dragged into the net of law. Little people of this country, have high hopes from CBI, the prime investigating agency which works and gives results. We hope and trust the sentinels in CBI would justify the confidence of the people and this Court reposed in them.
### Response:
1
### Explanation:
31. The question is whether the above features call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative. Each one of the aspects set out above in our view calls for investigation by an independent agency like the Central Bureau of Investigation (CBI). That is because apart from the sensitivity of the issues involved especially inter-state ramifications of the scam under investigation, transfer of cases from the State police have been ordered by this Court also with a view to ensure credibility of such investigation in the public perception. Transfers have been ordered by this Court even in cases where the family members of victim killed in a firing incident had expressed apprehensions about the fairness of the investigation and prayed for entrusting the matter to a credible and effective agency like the CBI. Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book. The question, however, is not whether the State police has faltered. The question is whether what is done by the State police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-state ramifications, which the Investigating Agencies need to examine but are handicapped in examining32. M/s Vaidyanathan and Gopal Subramanium, learned counsel for the States of West Bengal and Odisha respectively argued that the CBI itself has in a great measure lost its credibility and is no longer as effective and independent as it may have been in the past. Similar sentiments were expressed by Mr. P.V. Shetty appearing on behalf of some of the investors and some other intervenors, who followed suit to pursue a similar line of argument33. There is, in our opinion, no basis of the apprehension expressed by the State Governments. It is true that a lot can be said about the independence of CBI as a premier Investigating Agency but so long as there is nothing substantial affecting its credibility it remains a premier Investigating Agency. Those not satisfied with the performance of the State Police more often than not demand investigation by the CBI for it inspires their confidence. We cannot, therefore, decline transfer of the cases only because of certain stray observations or misplaced apprehensions expressed by those connected with the scam or those likely to be affected by the investigation. We may in this regard gainfully extract the following passage from the decision of this Court in Sanjiv Kumar v. State of Haryana and Others (2005) 5 SCC 517, where this Court has lauded the CBI as an independent agency that is not only capable of but actually shows results:
|
Oriental Insurance Co. Ltd Vs. Premlata Shukla | are not, however, concerned therewith in this case. Respondent had filed an application under Section 166 of the Motor Vehicles Act, 1988. It was required to be determined in accordance with the procedures laid down therefore. It will, however, be pertinent to refer to Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda [(2004) 5 SCC 385] on this aspect, wherein it was observed: The Law Commission furthermore recommended for laying of a scheme in terms where of the victims of hit and run accident could claim compensation where the identity of the vehicle involved in the accident was unknown. Yet again, the 199th Law Commission in its report submitted in 1987 stated the law as it stood them in the following terms: the law as it stands present, save the provisions in chapter VIIA inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay the compensation and which fault caused the harm. 9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefore. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner. 10. The insurer, however, would be liable to re-imburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. 11. The learned counsel appearing on behalf of the respondent contended that First Information Report was brought on record for the purpose of proving the accident and not for fixing the liability on the part of driver of the vehicle involved therein. 12. In Narbada Devi (supra) whereupon reliance has been placed, this Court held that contents of a document are not automatically proved only because the same is marked as an Exhibit. There is no dispute with regard to the said legal proposition. 13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them. 14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. 15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. 16. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating; 8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate. 17. | 1[ds]13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon.In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate. | 1 | 1,987 | 606 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
are not, however, concerned therewith in this case. Respondent had filed an application under Section 166 of the Motor Vehicles Act, 1988. It was required to be determined in accordance with the procedures laid down therefore. It will, however, be pertinent to refer to Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda [(2004) 5 SCC 385] on this aspect, wherein it was observed: The Law Commission furthermore recommended for laying of a scheme in terms where of the victims of hit and run accident could claim compensation where the identity of the vehicle involved in the accident was unknown. Yet again, the 199th Law Commission in its report submitted in 1987 stated the law as it stood them in the following terms: the law as it stands present, save the provisions in chapter VIIA inserted by the Motor Vehicles (Amendment) Act, 1982, enables the victim or the dependants of the victim in the event of death to recover compensation on proof of fault of the person liable to pay the compensation and which fault caused the harm. 9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be liable to pay compensation therefore. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner. 10. The insurer, however, would be liable to re-imburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. 11. The learned counsel appearing on behalf of the respondent contended that First Information Report was brought on record for the purpose of proving the accident and not for fixing the liability on the part of driver of the vehicle involved therein. 12. In Narbada Devi (supra) whereupon reliance has been placed, this Court held that contents of a document are not automatically proved only because the same is marked as an Exhibit. There is no dispute with regard to the said legal proposition. 13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them. 14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. 15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. 16. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating; 8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate. 17.
### Response:
1
### Explanation:
13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefore consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon.In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate.
|
D. Gopalakrishnan Vs. Sadanand Naik | D. Gopalakrishnan and Danial. When these persons called out for help, the accused persons left the place immediately.3. PW10 E.M. Mathai, General Manager of MRF at Ponda, was informed of the incident and he came to the Vailankani guest house. The injured were shifted to GMC Hospital. Injured Venugopal was in serious condition and he was shifted to Vaidya Hospital at Panaji where he died on 25.3.1997. The police filed the charge-sheet against the accused persons. The Sessions Judge found the accused guilty as afore-stated and he was of the opinion that the accused were properly identified by the injured persons who were examined as prosecution witnesses. The High Court reversed this finding on the ground that the witnesses including the injured witnesses had no previous acquaintance with the accused persons and their identification was extremely doubtful. This finding is challenged before us.4. The Sessions Court held that the injured persons who were examined as eye-witnesses had an occasion to see the accused persons who were also the members of the striking employees and were often seen sitting near the security gate of the factory shouting slogans. The witnesses who had been going to the factory had an opportunity to see them and in that way all the accused had been identified properly by the witnesses. PW 6 Gopal Krishnan, PW7 Danial Thomas and PW8 C. Ravindranath are the witnesses who were examined to prove the incident. These witnesses deposed that they had been working at the MRF factory situated at Ponda for about 25 days. PW5 William Johnson is one of the eye-witnesses who deposed that the Police Officer showed him several photographs in an album with the names of the persons written underneath and he immediately identified accused A-3 Gokuldas Babi Gaonkar and A-12 Cypriano DCosta. 5. The learned counsel for the respondents-accused submitted that the eye-witnesses were questioned by the Police Officer with an album and the photographs were shown to them and at that time. Section 161 statements were recorded. The respondents learned Counsel relied on the statement of PW10 E.M. Mathai, General Manager who deposed that the Police Officer wanted the photographs of the employees and he had been given instruction to give it on the same day and PW 13 Investigating Officer, who registered the complaint made by PW10 E.M. Mathai, General Manager deposed that PW10 General Manager had supplied the photographs of the striking workers of the MRF on 14.3.1987 itself and that he had shown the photographs to the witnesses while recording their statements. Admittedly, no identification parade was conducted in this case. 6. The learned Counsel for the appellant vehemently contended that showing of photographs to the witnesses for the purpose of identification is permissible under law. He even drew our attention to the Police and Criminal Evidence Act, 1984 which is in force in England and submitted that the provisions of the said statute permit the showing of photographs to the witnesses for the purpose of identification and there is nothing in law which prohibits such action being taken by the Investigating Officer. In the instant case, the witnesses had not described the physical features of the accused or any identifying characteristics as to how they identified the assailants. To such a witness, showing of photograph would only lead the investigating officer to make the wrong conclusion regarding the identification. Even under the provisions of the Police and Criminal Evidence Act, 1984 which is prevalent in England the photographs could be shown to the witnesses only under certain specified conditions. Annexure E of the Act are the guidelines and it says that before showing the photographs of the suspect, the supervising officer must first confirm that the description of the suspect given by the witness has been recorded, and if the supervising officer is unable to confirm the description, the officer shall postpone the showing of the photographs. The other condition as stated in Annexe E of the statute says that a witness must not be shown photographs or computerized or artists composite or similar likeness or pictures if the identify of the suspect is known to the police and suspect is available to take part in a video identification, an identification parade or group identification. 7. There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses and recorded their statements under Section 161 Cr.P.C. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photographs but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.8. In the instant case, the High Court held that the witnesses had no occasion to properly identify the assailants as they had no previous acquaintance with them. The witnesses had been travelling in a vehicle while going to the factory, and if a group of workers were seen by them while travelling, it may not be easier for them to identify them. It cannot be said that the High Court had made a perverse appreciation of evidence, and the view taken is plausible and this is not a fit case where this Court can interfere with the acquittal passed by the High Court. 9. | 0[ds]There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses and recorded their statements under Section 161 Cr.P.C. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photographs but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.8. In the instant case, the High Court held that the witnesses had no occasion to properly identify the assailants as they had no previous acquaintance with them. The witnesses had been travelling in a vehicle while going to the factory, and if a group of workers were seen by them while travelling, it may not be easier for them to identify them. It cannot be said that the High Court had made a perverse appreciation of evidence, and the view taken is plausible and this is not a fit case where this Court can interfere with the acquittal passed by the High Court. | 0 | 1,323 | 316 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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D. Gopalakrishnan and Danial. When these persons called out for help, the accused persons left the place immediately.3. PW10 E.M. Mathai, General Manager of MRF at Ponda, was informed of the incident and he came to the Vailankani guest house. The injured were shifted to GMC Hospital. Injured Venugopal was in serious condition and he was shifted to Vaidya Hospital at Panaji where he died on 25.3.1997. The police filed the charge-sheet against the accused persons. The Sessions Judge found the accused guilty as afore-stated and he was of the opinion that the accused were properly identified by the injured persons who were examined as prosecution witnesses. The High Court reversed this finding on the ground that the witnesses including the injured witnesses had no previous acquaintance with the accused persons and their identification was extremely doubtful. This finding is challenged before us.4. The Sessions Court held that the injured persons who were examined as eye-witnesses had an occasion to see the accused persons who were also the members of the striking employees and were often seen sitting near the security gate of the factory shouting slogans. The witnesses who had been going to the factory had an opportunity to see them and in that way all the accused had been identified properly by the witnesses. PW 6 Gopal Krishnan, PW7 Danial Thomas and PW8 C. Ravindranath are the witnesses who were examined to prove the incident. These witnesses deposed that they had been working at the MRF factory situated at Ponda for about 25 days. PW5 William Johnson is one of the eye-witnesses who deposed that the Police Officer showed him several photographs in an album with the names of the persons written underneath and he immediately identified accused A-3 Gokuldas Babi Gaonkar and A-12 Cypriano DCosta. 5. The learned counsel for the respondents-accused submitted that the eye-witnesses were questioned by the Police Officer with an album and the photographs were shown to them and at that time. Section 161 statements were recorded. The respondents learned Counsel relied on the statement of PW10 E.M. Mathai, General Manager who deposed that the Police Officer wanted the photographs of the employees and he had been given instruction to give it on the same day and PW 13 Investigating Officer, who registered the complaint made by PW10 E.M. Mathai, General Manager deposed that PW10 General Manager had supplied the photographs of the striking workers of the MRF on 14.3.1987 itself and that he had shown the photographs to the witnesses while recording their statements. Admittedly, no identification parade was conducted in this case. 6. The learned Counsel for the appellant vehemently contended that showing of photographs to the witnesses for the purpose of identification is permissible under law. He even drew our attention to the Police and Criminal Evidence Act, 1984 which is in force in England and submitted that the provisions of the said statute permit the showing of photographs to the witnesses for the purpose of identification and there is nothing in law which prohibits such action being taken by the Investigating Officer. In the instant case, the witnesses had not described the physical features of the accused or any identifying characteristics as to how they identified the assailants. To such a witness, showing of photograph would only lead the investigating officer to make the wrong conclusion regarding the identification. Even under the provisions of the Police and Criminal Evidence Act, 1984 which is prevalent in England the photographs could be shown to the witnesses only under certain specified conditions. Annexure E of the Act are the guidelines and it says that before showing the photographs of the suspect, the supervising officer must first confirm that the description of the suspect given by the witness has been recorded, and if the supervising officer is unable to confirm the description, the officer shall postpone the showing of the photographs. The other condition as stated in Annexe E of the statute says that a witness must not be shown photographs or computerized or artists composite or similar likeness or pictures if the identify of the suspect is known to the police and suspect is available to take part in a video identification, an identification parade or group identification. 7. There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses and recorded their statements under Section 161 Cr.P.C. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photographs but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.8. In the instant case, the High Court held that the witnesses had no occasion to properly identify the assailants as they had no previous acquaintance with them. The witnesses had been travelling in a vehicle while going to the factory, and if a group of workers were seen by them while travelling, it may not be easier for them to identify them. It cannot be said that the High Court had made a perverse appreciation of evidence, and the view taken is plausible and this is not a fit case where this Court can interfere with the acquittal passed by the High Court. 9.
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There are no statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the police is entitled to show photographs to confirm whether the investigation is going on in the right direction. But in the instant case, it appears that the investigating officer procured the album containing the photographs with the names written underneath and showed this album to the eye-witnesses and recorded their statements under Section 161 Cr.P.C. The procedure adopted by the police is not justified under law as it will affect fair and proper investigation and may sometimes lead to a situation where wrong persons are identified as assailants. During the course of the investigation, if the witness had given the identifying features of the assailants, the same could be confirmed by the investigating officer by showing the photographs of the suspect and the investigating officer shall not first show a single photographs but should show more than one photograph of the same person, if available. If the suspect is available for identification or for video identification, the photograph shall never be shown to the witness in advance.8. In the instant case, the High Court held that the witnesses had no occasion to properly identify the assailants as they had no previous acquaintance with them. The witnesses had been travelling in a vehicle while going to the factory, and if a group of workers were seen by them while travelling, it may not be easier for them to identify them. It cannot be said that the High Court had made a perverse appreciation of evidence, and the view taken is plausible and this is not a fit case where this Court can interfere with the acquittal passed by the High Court.
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K. Raveendranathan Nair Vs. Commissioner of Income Tax & Another | in holding that in all those cases where the appeals are filed in the High Court, whether by the assessee or the Income Tax Department, after the insertion of Section 52A, i.e. after October 26, 2002, fee is payable as provided under Section 52A of the 1959 Act. In this hue, it was also pointed out that Section 260A of the IT Act was inserted with effect from October 01, 1998 and, therefore, from this date right to file the appeal in the High Court accrued as a vested right. Thus, all those proceedings where the assessment orders were passed after October 01, 1998 by the Assessing Officer and the assessee had approached the High Court by filing appeal under Section 260A of the IT Act, fee as per the unamended provision was payable and not under Section 52A of the 1959 Act. Likewise, it was argued, in those cases where the Revenue filed the appeal in the High Court where the disputed demand was negative by the appellate authority after October 01, 1998 and before October 26, 2002, court fee was payable as per the unamended provision.9. Mr. Pallav Sishodia, learned senior counsel appearing for the State of Kerala, submitted that though there was no quarrel about the proposition laid down in the judgments cited by the learned counsel for the appellants, these judgments are premised on two postulates, namely:(i) there exists a vested right of appeal and it accrued prior to coming into force of Section 52A of the 1959 Act; and(ii) such a vested right stands impaired and/or made conditional retrospectively expressly or by necessary intendment.He, thus, submitted that it was imperative to have requisite foundational facts to demonstrate the aforesaid two conditions. According to him, however, the issue appears academic as no assessee has come forward as aggrieved by levy of court fee under Section 52A of the 1959 Act in a case in which appeal is filed where assessment is made and/or disputed demand in appeal is raised prior to October 26, 2002. Nor the details are available of the appeals filed by the Income Tax or Wealth Tax Departments where assessments are reversed in part of full and/or disputed demand is quashed by the Commissioner (Appeals) or Income Tax Appellate Tribunal prior to October 26, 2002, particularly number of such appeals pending before the High Court of Kerala, if at all. In any case, in the other appeals filed, if any, for the tax demands negatived by the appellate authorities prior to October 26, 2002, this issue of court fees does not appear to have been kept alive for grant of any effective relief. He cited few judgments in support of his submission that this Court should restrain itself from undertaking academic exercise and deciding the issue in question.10. We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore, it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law. It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby.11. Hence, we proceed to decide the legal issue involved in these appeals.12. We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at the commencement of the lis and, therefore, such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication. However, the High Court has still dismissed the writ petition as it was of the opinion that the vested right of appeal conferred under Section 260A of the IT Act, insofar as payment of court fee is concerned, is taken away by necessary implication. In other words, the provisions of Section 52A of the 1959 Act inserted by the Amendment Act of 2003, in that sense, have retrospective operation thereby effecting the earlier assessment also. This proposition is advanced with the logic that before prior to introduction of Section 260A in the IT Act with effect from October 01, 1998, there was no right of appeal.13. It is difficult to accept such a logic given by the High Court. No doubt, before October 01, 1998, in the absence of any statutory right of appeal to the High Court, there was no such vested right. At the same time, the moment Section 260A was added to the statute, right to appeal was recognised statutorily. Therefore, as already pointed out, in respect of those proceedings where assessment orders were passed after October 01, 1998, vested right of appeal in the High Court had accrued. Same was the position qua Department in respect of those cases where the demand raised by the Department stood negatived by the appellate authority after October 01, 1998.14. In the present case, as noted above, when Section 260A of the IT Act was introduced by way of amendment with effect from October 01, 1998, it contained provision in the form of clause (2) of sub-section (2) thereof relating to payment of court fee as well. As per that provision, fixed court fee of Rs.2,000/- was provided. This provision was, however, omitted with effect from June 01, 1999. The court fee became payable as per Section 52 of the 1959 Act. The amendment in question in the 1959 Act, i.e. Section 52A, was made effective from March 06, 2003. This provision has not been made retrospective. | 1[ds]10. We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore,it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law.It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby.We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at the commencement of the lis and, therefore, such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication. However, the High Court has still dismissed the writ petition as it was of the opinion that the vested right of appeal conferred under Section 260A of the IT Act, insofar as payment of court fee is concerned, is taken away by necessary implication. In other words, the provisions of Section 52A of the 1959 Act inserted by the Amendment Act of 2003, in that sense, have retrospective operation thereby effecting the earlier assessment also. This proposition is advanced with the logic that before prior to introduction of Section 260A in the IT Act with effect from October 01, 1998, there was no right of appeal.13. It is difficult to accept such a logic given by the High Court. No doubt, before October 01, 1998, in the absence of any statutory right of appeal to the High Court, there was no such vested right. At the same time, the moment Section 260A was added to the statute, right to appeal was recognised statutorily. Therefore, as already pointed out, in respect of those proceedings where assessment orders were passed after October 01, 1998, vested right of appeal in the High Court had accrued. Same was the position qua Department in respect of those cases where the demand raised by the Department stood negatived by the appellate authority after October 01, 1998.14. In the present case, as noted above, when Section 260A of the IT Act was introduced by way of amendment with effect from October 01, 1998, it contained provision in the form of clause (2) of(2) thereof relating to payment of court fee as well. As per that provision, fixed court fee of Rs.2,000/was provided. This provision was, however, omitted with effect from June 01, 1999. The court fee became payable as per Section 52 of the 1959 Act. The amendment in question in the 1959 Act, i.e. Section 52A, was made effective from March 06, 2003. This provision has not been made retrospective. | 1 | 2,807 | 585 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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in holding that in all those cases where the appeals are filed in the High Court, whether by the assessee or the Income Tax Department, after the insertion of Section 52A, i.e. after October 26, 2002, fee is payable as provided under Section 52A of the 1959 Act. In this hue, it was also pointed out that Section 260A of the IT Act was inserted with effect from October 01, 1998 and, therefore, from this date right to file the appeal in the High Court accrued as a vested right. Thus, all those proceedings where the assessment orders were passed after October 01, 1998 by the Assessing Officer and the assessee had approached the High Court by filing appeal under Section 260A of the IT Act, fee as per the unamended provision was payable and not under Section 52A of the 1959 Act. Likewise, it was argued, in those cases where the Revenue filed the appeal in the High Court where the disputed demand was negative by the appellate authority after October 01, 1998 and before October 26, 2002, court fee was payable as per the unamended provision.9. Mr. Pallav Sishodia, learned senior counsel appearing for the State of Kerala, submitted that though there was no quarrel about the proposition laid down in the judgments cited by the learned counsel for the appellants, these judgments are premised on two postulates, namely:(i) there exists a vested right of appeal and it accrued prior to coming into force of Section 52A of the 1959 Act; and(ii) such a vested right stands impaired and/or made conditional retrospectively expressly or by necessary intendment.He, thus, submitted that it was imperative to have requisite foundational facts to demonstrate the aforesaid two conditions. According to him, however, the issue appears academic as no assessee has come forward as aggrieved by levy of court fee under Section 52A of the 1959 Act in a case in which appeal is filed where assessment is made and/or disputed demand in appeal is raised prior to October 26, 2002. Nor the details are available of the appeals filed by the Income Tax or Wealth Tax Departments where assessments are reversed in part of full and/or disputed demand is quashed by the Commissioner (Appeals) or Income Tax Appellate Tribunal prior to October 26, 2002, particularly number of such appeals pending before the High Court of Kerala, if at all. In any case, in the other appeals filed, if any, for the tax demands negatived by the appellate authorities prior to October 26, 2002, this issue of court fees does not appear to have been kept alive for grant of any effective relief. He cited few judgments in support of his submission that this Court should restrain itself from undertaking academic exercise and deciding the issue in question.10. We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore, it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law. It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby.11. Hence, we proceed to decide the legal issue involved in these appeals.12. We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at the commencement of the lis and, therefore, such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication. However, the High Court has still dismissed the writ petition as it was of the opinion that the vested right of appeal conferred under Section 260A of the IT Act, insofar as payment of court fee is concerned, is taken away by necessary implication. In other words, the provisions of Section 52A of the 1959 Act inserted by the Amendment Act of 2003, in that sense, have retrospective operation thereby effecting the earlier assessment also. This proposition is advanced with the logic that before prior to introduction of Section 260A in the IT Act with effect from October 01, 1998, there was no right of appeal.13. It is difficult to accept such a logic given by the High Court. No doubt, before October 01, 1998, in the absence of any statutory right of appeal to the High Court, there was no such vested right. At the same time, the moment Section 260A was added to the statute, right to appeal was recognised statutorily. Therefore, as already pointed out, in respect of those proceedings where assessment orders were passed after October 01, 1998, vested right of appeal in the High Court had accrued. Same was the position qua Department in respect of those cases where the demand raised by the Department stood negatived by the appellate authority after October 01, 1998.14. In the present case, as noted above, when Section 260A of the IT Act was introduced by way of amendment with effect from October 01, 1998, it contained provision in the form of clause (2) of sub-section (2) thereof relating to payment of court fee as well. As per that provision, fixed court fee of Rs.2,000/- was provided. This provision was, however, omitted with effect from June 01, 1999. The court fee became payable as per Section 52 of the 1959 Act. The amendment in question in the 1959 Act, i.e. Section 52A, was made effective from March 06, 2003. This provision has not been made retrospective.
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10. We are not inclined to accept the aforesaid plea inasmuch as the High Court has decided the issue in categorical terms. Therefore,it would be appropriate to reflect on the said decision and to find out as to whether this decision is correct in law.It is a different matter that after the legal position is clarified, the same can be applied in respect of those appeals which are covered thereby.We may mention at the outset that after referring to the judgments noted above even the High Court in the impugned judgment has accepted that right of appeal is not a matter of procedure and that it is a substantive right. It is also recognised that this right gets vested in the litigants at the commencement of the lis and, therefore, such a vested right cannot be taken away or cannot be impaired or imperilled or made more stringent or onerous by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention to interfere with or impair or imperil a vested right cannot be presumed unless such intention be clearly manifested by express words or by necessary implication. However, the High Court has still dismissed the writ petition as it was of the opinion that the vested right of appeal conferred under Section 260A of the IT Act, insofar as payment of court fee is concerned, is taken away by necessary implication. In other words, the provisions of Section 52A of the 1959 Act inserted by the Amendment Act of 2003, in that sense, have retrospective operation thereby effecting the earlier assessment also. This proposition is advanced with the logic that before prior to introduction of Section 260A in the IT Act with effect from October 01, 1998, there was no right of appeal.13. It is difficult to accept such a logic given by the High Court. No doubt, before October 01, 1998, in the absence of any statutory right of appeal to the High Court, there was no such vested right. At the same time, the moment Section 260A was added to the statute, right to appeal was recognised statutorily. Therefore, as already pointed out, in respect of those proceedings where assessment orders were passed after October 01, 1998, vested right of appeal in the High Court had accrued. Same was the position qua Department in respect of those cases where the demand raised by the Department stood negatived by the appellate authority after October 01, 1998.14. In the present case, as noted above, when Section 260A of the IT Act was introduced by way of amendment with effect from October 01, 1998, it contained provision in the form of clause (2) of(2) thereof relating to payment of court fee as well. As per that provision, fixed court fee of Rs.2,000/was provided. This provision was, however, omitted with effect from June 01, 1999. The court fee became payable as per Section 52 of the 1959 Act. The amendment in question in the 1959 Act, i.e. Section 52A, was made effective from March 06, 2003. This provision has not been made retrospective.
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K. Manickchand & Ors Vs. Elias Saleh Mohamed Sait & Anr | a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. This sub-section clearly indicates that there is a distinction between an Act coming into operation, and the commencement of the Act. The date of coming into operation is not necessarily the date of commencement. In interpreting Section 2 (3) (b) and (c) of the Act, we are concerned with to this expression commencement of the Act and not with coming into operation of the Act. In view of the definition of commencement given in Section 3 (13) of the General Clauses Act which applies to this expression as used in the Act, it has to be held that the commencement of the Act for the purposes of the present suit must be held to be the date on which the Act came into force in Bangalore Civil and Military Station and, consequently, only 1st April, 1937 and not earlier. The document of 1933, treated either as an agreement or a security for purposes of clauses (b) and (c) of sub-section (3) if Section 2 of the Act, was made or given before the commencement of the Act and, consequently, the present suit is not a suit to which the Act can be held to be applicable under either of those clauses. 19. Mr. Aggarwala on this point drew our attention to the provisions of subsection (3) of Section 3 of the Act under which it is laid down that this section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. He relied on a decision of the Punjab High Court in Vaishnu Dass v. Thakur Dass, ILR (1954) Punj 1= (AIR 1953 Punj l16), where the Court interpreted Section 3 (3) of the Act as laying own that the other provisions of Section 3 will apply to a suit for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security, irrespective of the fact whether the loan or the agreement was made before or after the commencement of the Act, or the security was given before or after the commencement of the Act. We are unable to accept this interpretation.Sub-section (3) of Section 3 is not intended to take away the limitations laid down in Section 2 (3) (a), (b) and (c) of the Act. Its only purpose is to meet the contingency that a suit, to which the provisions of the Act are sought to be applied, may not be in the form of a suit for recovery of a loan, or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. In such a case, these expressions used in Sec. 2 (3) of the Act are to be held to be covered even if the suit is substantially of such a nature. This sub-section (3) of Section 3 of the Act is thus intended to be in the nature of an explanation for the purpose of interpreting what is a suit for recovery of a loan or for the enforcement of an agreement or security in respect of a loan or for the redemption of any such security used in sub-section (3) of Section 2 of the Act in cases where the suit may not have been framed in such form as to indicate plainly that it is a suit of such a nature. Even if the form be different, but the suit is substantially of that nature, it has to be held that the requirements of Section 2 (3) of the Act are satisfied. Consequently, it cannot be held that this provision was in tended to take away the requirement that, for the applicability of the Act, the loan mentioned in clause (a) and the agreement mentioned in clause (b) of Section 2 (3) must have been made after the commencement of the Act and the security mentioned in clause (c) must have been given after the commencement of the Act. In the present case, the mortgage-deed, on, the basis of which accounting and decree for surplus were claimed by the respondents, was not executed after the commencement of the Act and clearly therefore, the Act cannot be applied to the present suit.The decree of the High Court to the extent of relief granted to the respondents on the basis of the applicability of the Act must be set aside. 20. Learned Counsel for parties were asked to indicate to us the amount for which the suit would have to be decreed applying Section 76 of the T. P. Act and ignoring the provisions of the Act, and they gave us the agreed figure that this amount will be Rs. 13,342/09 P. This is the amount which has been found by the High Court as due, if the provisions of the Act are not applicable. Consequently, the decree passed by the High court has to be reduced to this amount. 21. The High Court when decreeing the suit, granted interest to the respondents on this amount with effect from 3rd November, 1943, which was the date on which the suit was instituted. Learned Counsel for the appellants desired that interest should be granted only with effect from the date of the decree passed by the High Court in the appeal against decree in the suit. We can see no basis behind this submission. The amount, for which the suit is being decreed, was clearly payable by the appellants at the time when the suit was instituted and we cannot, therefore, hold that any error was committed by the High Court in granting interest on this amount from the date of the suit. | 1[ds]Even if the High Court, made such an incorrect order, the remedy of the appellants lay in seeking leave to appeal from this Court against that order itself. In fact, the judgment dated 13th February, 1951 was very clearly a final judgment in respect of all the points which were decided in the preliminary decree passed by the trial Court and confirmed by this judgment by the High Court. A preliminary decree in a suit for accounts cannot be said to be a mere interlocutory order. Such a decree finally decides the points which the court is required to decide at that stage or chooses to decide at that stage. The judgment of the High Court dated 13th February, 1951 having become final, it is no longer open the appellants to raise the ground of non-maintainability of this suit because of the earlier proceedings under Section 83 of the T. P. Act. The first point raised by learned counsel has, thus, no forceIn these circumstances, we have allowed learned counsel for the appellants to argue this point on merits on the basis that the judgment of the High Court confirming the preliminary decree had specifically left this question open for decision at the stage of final decree9. On merits, however, we think that the High Court was perfectly right in recording its finding that the mortgage in suit is governed by Section 76 of the T. P. Act and does not fall within the scope of Section 77 of the T. P. Act. This is very clear from the terms of the mortgage deed itself. The mortgage deed clearly lays down that the mortgagee is entitled to a sum of Rs. 700 per mensem in lieu of interest on the mortgage money. This term by itself indicates that the entire receipts from the mortgaged property were not to be taken by the mortgagee in lieu of interest on the principal moneyThe right to appropriate rent towards interest was confined to the sum of Rs. 700 per mensem only. All these terms of the mortgage deed clearly show that it was not of the character mentioned in Section 77 of the T. P. Act and, consequently, Section 77 did not apply. Section 76 was clearly applicable, as the mortgagee had taken possession of the mortgaged property and was liable to render accounts of administration of the property. The decision of the High Court on this point must also, therefore, be upheldThe Act, therefore, did not apply in this area when enacted. The Order in Council dated 11th June, 1902 was amended by the Civil and Military Station of Bangalore (Application of Laws) Order, 1937, and it was under this Order that the provisions of the Act were applied to this area with a very minor modification of omitting sub-section (2) of Section 1The first point is whether the present suit is a suit either for redemption of a security or for enforcement of an agreement in respect of a loan made either before or after the commencement of the Act. The second point is whether, if either of these two conditions is satisfied, it can be held that the agreement, for the enforcement of which this suit has been filed, was made after the commencement of the Act, or the security, for the redemption of which the suit has been filed, was given after the commencement of the ActIn the present suit, none of the prayers envisaged as reliefs to be granted in a suit for redemption finds a place. There is no prayer that the mortgagee be required to deliver the mortgage-deed and other documents relating to the mortgaged property and, though the mortgagee had been in possession under the mortgage, there was no prayer for delivery of possession of the property to the mortgagors, nor was there any request for re-transfer of the mortgaged property to the mortgagors. The reason why no such prayer was included in the suit is obvious. The transferee of the original mortgagors had filed an application under Section 83 of the T. P. Act after making a deposit.That deposit had been accepted by the mortgagee, whereupon the necessary documents had already been delivered to the mortgagors together with the possession of the mortgaged property. The reliefs, which could have been claimed in a suit for redemption envisaged by Section 60 of the T. P. Act, had thus been obtained under Section 83 of that Act even prior to the institution of the suit. There was, therefore, no occasion for claiming any of these reliefs. In these circumstances, we must hold that the High Court was not right in proceeding on the basis that this suit was a suit for redemption of security as mentioned in Section 2 (3) (c) of the ActWe are unable to accept the submission that a suit, which is purely for accounting and a decree for surplus, is a suit for redemption. The circumstance that, in a suit for redemption, apart from the prayers which form part of the enforcement of the right to redeem, certain other prayers can also be granted cannot lead to the conclusion that a suit, which is solely for those other incidental reliefs, must be a suit for redemption. The right to redeem, in fact, had already been enforced in respect of this mortgage of 1933 by the proceedings under Section 83 of the T. Act and this subsequent suit could not, therefore, be for the enforcement of that right. The suit for the enforcement of the incidental rights, which could have been claimed if a suit for redemption had been brought under Section 60 of the T. P. Act instead of obtaining all those reliefs under Section 83, cannot, therefore, be held to be a suit for redemptionWe are unable to accept this interpretation.Sub-section (3) of Section 3 is not intended to take away the limitations laid down in Section 2 (3) (a), (b) and (c) of the Act. Its only purpose is to meet the contingency that a suit, to which the provisions of the Act are sought to be applied, may not be in the form of a suit for recovery of a loan, or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. In such a case, these expressions used in Sec. 2 (3) of the Act are to be held to be covered even if the suit is substantially of such a nature. This sub-section (3) of Section 3 of the Act is thus intended to be in the nature of an explanation for the purpose of interpreting what is a suit for recovery of a loan or for the enforcement of an agreement or security in respect of a loan or for the redemption of any such security used in sub-section (3) of Section 2 of the Act in cases where the suit may not have been framed in such form as to indicate plainly that it is a suit of such a nature. Even if the form be different, but the suit is substantially of that nature, it has to be held that the requirements of Section 2 (3) of the Act are satisfied. Consequently, it cannot be held that this provision was in tended to take away the requirement that, for the applicability of the Act, the loan mentioned in clause (a) and the agreement mentioned in clause (b) of Section 2 (3) must have been made after the commencement of the Act and the security mentioned in clause (c) must have been given after the commencement of the Act. In the present case, the mortgage-deed, on, the basis of which accounting and decree for surplus were claimed by the respondents, was not executed after the commencement of the Act and clearly therefore, the Act cannot be applied to the present suit.The decree of the High Court to the extent of relief granted to the respondents on the basis of the applicability of the Act must be set aside20. Learned Counsel for parties were asked to indicate to us the amount for which the suit would have to be decreed applying Section 76 of the T. P. Act and ignoring the provisions of the Act, and they gave us the agreed figure that this amount will be Rs. 13,342/09 P. This is the amount which has been found by the High Court as due, if the provisions of the Act are not applicable. Consequently, the decree passed by the High court has to be reduced to this amount21. The High Court when decreeing the suit, granted interest to the respondents on this amount with effect from 3rd November, 1943, which was the date on which the suit was instituted. Learned Counsel for the appellants desired that interest should be granted only with effect from the date of the decree passed by the High Court in the appeal against decree in the suit. We can see no basis behind this submission. The amount, for which the suit is being decreed, was clearly payable by the appellants at the time when the suit was instituted and we cannot, therefore, hold that any error was committed by the High Court in granting interest on this amount from the date of the suit. | 1 | 9,324 | 1,716 | ### Instruction:
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a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. This sub-section clearly indicates that there is a distinction between an Act coming into operation, and the commencement of the Act. The date of coming into operation is not necessarily the date of commencement. In interpreting Section 2 (3) (b) and (c) of the Act, we are concerned with to this expression commencement of the Act and not with coming into operation of the Act. In view of the definition of commencement given in Section 3 (13) of the General Clauses Act which applies to this expression as used in the Act, it has to be held that the commencement of the Act for the purposes of the present suit must be held to be the date on which the Act came into force in Bangalore Civil and Military Station and, consequently, only 1st April, 1937 and not earlier. The document of 1933, treated either as an agreement or a security for purposes of clauses (b) and (c) of sub-section (3) if Section 2 of the Act, was made or given before the commencement of the Act and, consequently, the present suit is not a suit to which the Act can be held to be applicable under either of those clauses. 19. Mr. Aggarwala on this point drew our attention to the provisions of subsection (3) of Section 3 of the Act under which it is laid down that this section shall apply to any suit, whatever its form may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. He relied on a decision of the Punjab High Court in Vaishnu Dass v. Thakur Dass, ILR (1954) Punj 1= (AIR 1953 Punj l16), where the Court interpreted Section 3 (3) of the Act as laying own that the other provisions of Section 3 will apply to a suit for the recovery of a loan or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security, irrespective of the fact whether the loan or the agreement was made before or after the commencement of the Act, or the security was given before or after the commencement of the Act. We are unable to accept this interpretation.Sub-section (3) of Section 3 is not intended to take away the limitations laid down in Section 2 (3) (a), (b) and (c) of the Act. Its only purpose is to meet the contingency that a suit, to which the provisions of the Act are sought to be applied, may not be in the form of a suit for recovery of a loan, or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. In such a case, these expressions used in Sec. 2 (3) of the Act are to be held to be covered even if the suit is substantially of such a nature. This sub-section (3) of Section 3 of the Act is thus intended to be in the nature of an explanation for the purpose of interpreting what is a suit for recovery of a loan or for the enforcement of an agreement or security in respect of a loan or for the redemption of any such security used in sub-section (3) of Section 2 of the Act in cases where the suit may not have been framed in such form as to indicate plainly that it is a suit of such a nature. Even if the form be different, but the suit is substantially of that nature, it has to be held that the requirements of Section 2 (3) of the Act are satisfied. Consequently, it cannot be held that this provision was in tended to take away the requirement that, for the applicability of the Act, the loan mentioned in clause (a) and the agreement mentioned in clause (b) of Section 2 (3) must have been made after the commencement of the Act and the security mentioned in clause (c) must have been given after the commencement of the Act. In the present case, the mortgage-deed, on, the basis of which accounting and decree for surplus were claimed by the respondents, was not executed after the commencement of the Act and clearly therefore, the Act cannot be applied to the present suit.The decree of the High Court to the extent of relief granted to the respondents on the basis of the applicability of the Act must be set aside. 20. Learned Counsel for parties were asked to indicate to us the amount for which the suit would have to be decreed applying Section 76 of the T. P. Act and ignoring the provisions of the Act, and they gave us the agreed figure that this amount will be Rs. 13,342/09 P. This is the amount which has been found by the High Court as due, if the provisions of the Act are not applicable. Consequently, the decree passed by the High court has to be reduced to this amount. 21. The High Court when decreeing the suit, granted interest to the respondents on this amount with effect from 3rd November, 1943, which was the date on which the suit was instituted. Learned Counsel for the appellants desired that interest should be granted only with effect from the date of the decree passed by the High Court in the appeal against decree in the suit. We can see no basis behind this submission. The amount, for which the suit is being decreed, was clearly payable by the appellants at the time when the suit was instituted and we cannot, therefore, hold that any error was committed by the High Court in granting interest on this amount from the date of the suit.
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which the suit has been filed, was given after the commencement of the ActIn the present suit, none of the prayers envisaged as reliefs to be granted in a suit for redemption finds a place. There is no prayer that the mortgagee be required to deliver the mortgage-deed and other documents relating to the mortgaged property and, though the mortgagee had been in possession under the mortgage, there was no prayer for delivery of possession of the property to the mortgagors, nor was there any request for re-transfer of the mortgaged property to the mortgagors. The reason why no such prayer was included in the suit is obvious. The transferee of the original mortgagors had filed an application under Section 83 of the T. P. Act after making a deposit.That deposit had been accepted by the mortgagee, whereupon the necessary documents had already been delivered to the mortgagors together with the possession of the mortgaged property. The reliefs, which could have been claimed in a suit for redemption envisaged by Section 60 of the T. P. Act, had thus been obtained under Section 83 of that Act even prior to the institution of the suit. There was, therefore, no occasion for claiming any of these reliefs. In these circumstances, we must hold that the High Court was not right in proceeding on the basis that this suit was a suit for redemption of security as mentioned in Section 2 (3) (c) of the ActWe are unable to accept the submission that a suit, which is purely for accounting and a decree for surplus, is a suit for redemption. The circumstance that, in a suit for redemption, apart from the prayers which form part of the enforcement of the right to redeem, certain other prayers can also be granted cannot lead to the conclusion that a suit, which is solely for those other incidental reliefs, must be a suit for redemption. The right to redeem, in fact, had already been enforced in respect of this mortgage of 1933 by the proceedings under Section 83 of the T. Act and this subsequent suit could not, therefore, be for the enforcement of that right. The suit for the enforcement of the incidental rights, which could have been claimed if a suit for redemption had been brought under Section 60 of the T. P. Act instead of obtaining all those reliefs under Section 83, cannot, therefore, be held to be a suit for redemptionWe are unable to accept this interpretation.Sub-section (3) of Section 3 is not intended to take away the limitations laid down in Section 2 (3) (a), (b) and (c) of the Act. Its only purpose is to meet the contingency that a suit, to which the provisions of the Act are sought to be applied, may not be in the form of a suit for recovery of a loan, or for the enforcement of any agreement or security in respect of a loan or for the redemption of any such security. In such a case, these expressions used in Sec. 2 (3) of the Act are to be held to be covered even if the suit is substantially of such a nature. This sub-section (3) of Section 3 of the Act is thus intended to be in the nature of an explanation for the purpose of interpreting what is a suit for recovery of a loan or for the enforcement of an agreement or security in respect of a loan or for the redemption of any such security used in sub-section (3) of Section 2 of the Act in cases where the suit may not have been framed in such form as to indicate plainly that it is a suit of such a nature. Even if the form be different, but the suit is substantially of that nature, it has to be held that the requirements of Section 2 (3) of the Act are satisfied. Consequently, it cannot be held that this provision was in tended to take away the requirement that, for the applicability of the Act, the loan mentioned in clause (a) and the agreement mentioned in clause (b) of Section 2 (3) must have been made after the commencement of the Act and the security mentioned in clause (c) must have been given after the commencement of the Act. In the present case, the mortgage-deed, on, the basis of which accounting and decree for surplus were claimed by the respondents, was not executed after the commencement of the Act and clearly therefore, the Act cannot be applied to the present suit.The decree of the High Court to the extent of relief granted to the respondents on the basis of the applicability of the Act must be set aside20. Learned Counsel for parties were asked to indicate to us the amount for which the suit would have to be decreed applying Section 76 of the T. P. Act and ignoring the provisions of the Act, and they gave us the agreed figure that this amount will be Rs. 13,342/09 P. This is the amount which has been found by the High Court as due, if the provisions of the Act are not applicable. Consequently, the decree passed by the High court has to be reduced to this amount21. The High Court when decreeing the suit, granted interest to the respondents on this amount with effect from 3rd November, 1943, which was the date on which the suit was instituted. Learned Counsel for the appellants desired that interest should be granted only with effect from the date of the decree passed by the High Court in the appeal against decree in the suit. We can see no basis behind this submission. The amount, for which the suit is being decreed, was clearly payable by the appellants at the time when the suit was instituted and we cannot, therefore, hold that any error was committed by the High Court in granting interest on this amount from the date of the suit.
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ARAVINTH R.A Vs. THE SECRETARY TO THE GOVERNMENT OF INDIA MINISTRY OF HEALTH AND FAMILY WELFARE & ORS | said Judgment that the same would not preclude the State Medical Council from bringing to the notice of the NMC, the requirement if any, for the foreign medical graduates to undergo internship afresh to get acclimatised with the diseases and requirements of treatment peculiar to the State in order to bring in force, the appropriate statutory amendments. 50. Thus, a stage was set for the NMC to issue appropriate regulations in exercise of the power conferred by Section 57 of the Act. Accordingly, the Licentiate Regulations were issued in exercise of the power conferred by Section 15(4) read with Section 57 and the CRMI Regulations were issued in exercise of the power conferred by Section 24(1) read with Section 57 of the Act. Keeping these developments in mind, let us now test the validity of the grounds of challenge to these Regulations. 51. As we have seen earlier, the appellant challenged the validity of Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the Licentiate Regulations on several grounds, one of which is the lack of power under the Act. But the provisions extracted above would show that NMC had the power to frame the above Regulations. 52. Prescription of minimum standards would certainly include the prescription of the minimum duration for a course. It may be open to the medical institutions of other countries to prescribe a duration of less than 54 months for the students of their country. But it is not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration, if the incumbent wants to have permanent registration in India. 53. The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. The purpose of internship is to test the ability of the students to apply their academic knowledge on their subjects, namely the patients. Medical institutions of other countries may not insist on rigorous internship for students who may not put to test their skills on the population of their country. But it is not necessary for us to follow suit. 54. Similarly, the requirement under Regulation 4(b) has been necessitated to ensure that the students who were imparted medical education in a foreign country demonstrate their skills first on the population of the country where they studied. The necessity for a Master Chef to taste the food prepared by him, before it is served on the guests, cannot be said to be arbitrary. Therefore, the challenge to the Licentiate Regulations, are wholly without basis. 55. The contention that Section 36(4) recognises M.B.B.S. courses of a duration of less than 54 months and that therefore the Licentiate Regulations being a subordinate legislation is ultra vires, is wholly unsustainable. All that sub-section (4) of Section 36 saves, are the qualifications already recognised before the date of commencement of the Act and included in the Second Schedule and Part-II of the Third Schedule to the 1956 Act. The fact that past sins are sought to be washed away, is no ground to hold that there cannot be a course correction. As a matter of fact, Section 60 which deals with repeal and saving, also saves under clause (b) of sub- section (2), any right, privilege or obligation already acquired. This cannot be stated to be in conflict with what is prescribed for the students of the future. In any case, Section 36 deals only with recognition of the foreign medical courses and not registration as medical practitioner. Registration is covered by Section 33. Therefore, Section 36(4) cannot help the appellant. 56. The contention that the country needs more doctors and that by restricting the registration of foreign medical graduates, the fundamental right of the professionals under Article 19(1)(g) and the fundamental right of the citizens under Article 21 are impaired, is to be stated only to be rejected. It is true that the country needs more doctors, but it needs really qualified doctors and not persons trained by institutions abroad, to test their skills only in their mother land. 57. The argument that these Regulations constitute an extra- territorial law is misconceived. These Regulations do not encroach into the sovereignty of the countries where those institutions are located, by stipulating minimum standards for the students who want to practise there. These Regulations merely prescribe the minimum standards to be fulfilled by those who study in those institutions but who want to practise here in India. 58. Insofar as the challenge to the CRMI Regulations are concerned, the same is without any substance. If there are institutions in some countries which offer primary medical qualification without mandatory internship, the students are supposed not to seek admissions in those institutions. The mad rush to become qualified medical professionals, cannot drive them to countries where short-cuts to success are offered. The requirement under Para 2(a) of Schedule-II of these Regulations for foreign medical graduates to undergo internships at par with Indian medical graduates is to ensure that only those who have acquired similar skills are allowed to practice Medicine. 59. The prescription in para 2(c)(i) of Schedule-II of these Regulations that such foreign medical graduates may be posted first in colleges which have been newly opened and have yet to be recognised, is a prescription of necessity. All medical institutions of the country are equipped to provide internships only to as many students as their permitted intake may allow. Therefore, this Regulation is intended to ensure that an undue burden is not cast upon the already recognised institutions. 60. Therefore, we find that the dismissal of the writ petitions filed by the appellant before the Madras High Court was fully justified. We could have dismissed the SLPs in limine, but we thought fit to take pains to bring on record the historical facts so that the challenge to these Regulations are nipped in the bud and they do not surface in a different form or avatar. | 0[ds]35. Immediately after the 2010 Amendment to the Screening Test Regulations, but before the decision of the Delhi High Court in Rohit Naresh Agarwal (supra), this court had an occasion to deal with the case of students who completed the first two terms of an undergraduate medical course in an unrecognised medical college in India, but completed the last term in a medical institution in Tanzania. The batch of students comprised of (1) some, who were declined provisional registration and who could not do internship in India, (2) some, who were granted provisional registration, completed internship, but declined permanent registration and (3) some, whose permanent registration was subsequently cancelled. The High Court granted relief to all of them and the judgement of the High Court was under challenge before this Court. By a judgement reported in Medical Council of India vs. J. Saai Prasanna & Ors. (2011) 11 SCC 748, this court affirmed the judgement of the Andhra Pradesh High Court. While doing so, this court held that so long as the medical institution in a country outside India has granted a medical qualification and that medical qualification is recognized for enrolment as medical practitioner in that country, all that is required for the purpose of enrolment in the medical Register in India is qualifying in the Screening Test in India.36. More importantly, this Court held in paragraph 12 as follows:12. In the case of persons who obtained a medical qualification in a medical institution outside India, the question as to where the course of study was undergone is not relevant. The course of study could be in that country or if the norms of the Medical Council of that country so permitted, the course of study could be partly in that country and partly in another country including India.Once that country recognises a medical qualification granted by the institution in that country for the purpose of enrolment as a medical practitioner in that country, and such medical degree-holder passes the screening test in India, the Medical Council of India cannot refuse to recognise such degree on the ground that the student did a part of his study in an institution in India as a part of his medical study programme for the foreign institution.37. Thus, every time when the Regulatory body attempted to plug the loopholes and reform the system, which was exploited by a few, there was a challenge to the same and the irresistible temptation to undertake an irresponsible research in the nuances of law, set them at naught many times. Courts, sometimes, were swayed by sympathy to the plight of a few students, little realising that the plight of the patients who would go to them will hardly come to light and the impact such decisions would have on the population would never be known.38. Be that as it may, the above developments shocked the conscience of a few (at least a few), which led, in the year 2014, to the constitution of a Group of Experts chaired by Dr. Ranjit Roy Chaudhury to study the Indian Medical Council Act, 1956 and make recommendations to the Government to make the Medical Council of India (MCI), modern and suited to the prevailing conditions.40. In Modern Dental College and Research Centre & Ors. vs. State of Madhya Pradesh &Ors. (2016) 7 SCC353, this Court directed the Central Government to take action on the above recommendations. It was in the light of such developments that the National Medical Commission Act, 2019 (hereinafter referred to as NMC Act) was passed.46. At this stage we may take a small detour to point out that the Kerala State Medical Council, without waiting for the Central Government to clean up the MCI, took the lead and passed a Resolution dated 20.10.2017, making it compulsory for all foreign medical graduates to complete one year internship in any institution within India approved by MCI, for the grant of permanent registration in the State of Kerala under the Travancore- Cochin Medical Practitioners Act, 1953. On the basis of the said Resolution, the application for permanent registration of some foreign medical graduates were rejected and the rejection became the subject matter of challenge in Dr. Amala Girijan and Ors. vs. The Registrar, Travancore-Cochin Medical Council and Ors.2019 (4) SCT 224 (Kerala) The challenge was on the ground that the Resolution of the State Medical Council was in violation of Section 37 of the State Act. However, the challenge was rejected by a learned Judge of the Kerala High Court.47. But subsequently, the same Resolution came to be challenged by another foreign medical graduate in Sadhiya Siyad vs. State of Kerala and Ors. 2021 (6) KLT 94 Another learned Judge of the Kerala High Court before whom the writ petitions came up, framed the following four questions as arising for consideration:-(i) Whether a person who has not undergone internship as part of the medical course undertaken by him/her abroad is eligible to appear in the Screening Test provided for under Section 13(4A) of the IMC Act?(ii) Whether a person who obtains Eligibility Certificate in terms of Section 13(4B) of the IMC Act after taking admission in a medical institution abroad, be denied enrolment on a State Medical Register, if he/she satisfies all other eligibility criteria for the same?(iii) Whether a person who obtains a medical qualification from a medical institution abroad and undertakes one year internship thereafter in the country of education and satisfies all other eligibility criteria for enrolment on a State Medical Register be insisted to undergo CRRI for the said purpose?(iv) Whether the State Medical Council functioning under the TCMP Act is empowered to take decisions in the nature of Ext. P21?48. The Kerala High Court held, (i) that the stand of the State Medical Council that only students who have completed internship as part of the medical course undertaken by them in the medical institutions abroad, are entitled to appear for the Screening Test, is unsustainable; (ii) that if a candidate satisfied all the requirements for enrolling as a medical practitioner on a State Medical Register in accordance with the provisions of the 1956 Act and the Regulations made there under, he cannot be denied registration by a State Medical Council; (iii) that if a candidate satisfied all the requirements for enrolling as a medical practitioner on a State Medical Register in accordance with the provisions of the 1956 Act and the regulations made there under, the State Medical Council cannot deny enrolment on the ground that the candidate had obtained Eligibility Certificate after taking admission to the medical institution abroad and was consequently not eligible to appear for Screening Test; (iv) the requirement stipulated by the Kerala State Medical Council that such foreign medical graduates should undergo CRRI for claiming permanent registration, is inconsistent with the requirements of the 1956 Act and the Regulations; and (v) that since the 1956 Act is relatable to Entry 66 of List-I of the Seventh Schedule of the Constitution, it would prevail over the Kerala enactment relatable to Entry 25/26 of List-III.49. Though the High Court of Kerala allowed the writ petition filed by Sadhiya Siyad, it was made clear in the said Judgment that the same would not preclude the State Medical Council from bringing to the notice of the NMC, the requirement if any, for the foreign medical graduates to undergo internship afresh to get acclimatised with the diseases and requirements of treatment peculiar to the State in order to bring in force, the appropriate statutory amendments.50. Thus, a stage was set for the NMC to issue appropriate regulations in exercise of the power conferred by Section 57 of the Act. Accordingly, the Licentiate Regulations were issued in exercise of the power conferred by Section 15(4) read with Section 57 and the CRMI Regulations were issued in exercise of the power conferred by Section 24(1) read with Section 57 of the Act. Keeping these developments in mind, let us now test the validity of the grounds of challenge to these Regulations.51. As we have seen earlier, the appellant challenged the validity of Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the Licentiate Regulations on several grounds, one of which is the lack of power under the Act. But the provisions extracted above would show that NMC had the power to frame the above Regulations.52. Prescription of minimum standards would certainly include the prescription of the minimum duration for a course. It may be open to the medical institutions of other countries to prescribe a duration of less than 54 months for the students of their country. But it is not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration, if the incumbent wants to have permanent registration in India.53. The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. The purpose of internship is to test the ability of the students to apply their academic knowledge on their subjects, namely the patients. Medical institutions of other countries may not insist on rigorous internship for students who may not put to test their skills on the population of their country. But it is not necessary for us to follow suit.54. Similarly, the requirement under Regulation 4(b) has been necessitated to ensure that the students who were imparted medical education in a foreign country demonstrate their skills first on the population of the country where they studied. The necessity for a Master Chef to taste the food prepared by him, before it is served on the guests, cannot be said to be arbitrary. Therefore, the challenge to the Licentiate Regulations, are wholly without basis.55. The contention that Section 36(4) recognises M.B.B.S. courses of a duration of less than 54 months and that therefore the Licentiate Regulations being a subordinate legislation is ultra vires, is wholly unsustainable. All that sub-section (4) of Section 36 saves, are the qualifications already recognised before the date of commencement of the Act and included in the Second Schedule and Part-II of the Third Schedule to the 1956 Act. The fact that past sins are sought to be washed away, is no ground to hold that there cannot be a course correction. As a matter of fact, Section 60 which deals with repeal and saving, also saves under clause (b) of sub- section (2), any right, privilege or obligation already acquired. This cannot be stated to be in conflict with what is prescribed for the students of the future. In any case, Section 36 deals only with recognition of the foreign medical courses and not registration as medical practitioner. Registration is covered by Section 33. Therefore, Section 36(4) cannot help the appellant.56. The contention that the country needs more doctors and that by restricting the registration of foreign medical graduates, the fundamental right of the professionals under Article 19(1)(g) and the fundamental right of the citizens under Article 21 are impaired, is to be stated only to be rejected. It is true that the country needs more doctors, but it needs really qualified doctors and not persons trained by institutions abroad, to test their skills only in their mother land.57. The argument that these Regulations constitute an extra- territorial law is misconceived. These Regulations do not encroach into the sovereignty of the countries where those institutions are located, by stipulating minimum standards for the students who want to practise there. These Regulations merely prescribe the minimum standards to be fulfilled by those who study in those institutions but who want to practise here in India.58. Insofar as the challenge to the CRMI Regulations are concerned, the same is without any substance. If there are institutions in some countries which offer primary medical qualification without mandatory internship, the students are supposed not to seek admissions in those institutions. The mad rush to become qualified medical professionals, cannot drive them to countries where short-cuts to success are offered. The requirement under Para 2(a) of Schedule-II of these Regulations for foreign medical graduates to undergo internships at par with Indian medical graduates is to ensure that only those who have acquired similar skills are allowed to practice Medicine.59. The prescription in para 2(c)(i) of Schedule-II of these Regulations that such foreign medical graduates may be posted first in colleges which have been newly opened and have yet to be recognised, is a prescription of necessity. All medical institutions of the country are equipped to provide internships only to as many students as their permitted intake may allow. Therefore, this Regulation is intended to ensure that an undue burden is not cast upon the already recognised institutions.60. Therefore, we find that the dismissal of the writ petitions filed by the appellant before the Madras High Court was fully justified. We could have dismissed the SLPs in limine, but we thought fit to take pains to bring on record the historical facts so that the challenge to these Regulations are nipped in the bud and they do not surface in a different form or avatar. | 0 | 7,937 | 2,470 | ### Instruction:
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said Judgment that the same would not preclude the State Medical Council from bringing to the notice of the NMC, the requirement if any, for the foreign medical graduates to undergo internship afresh to get acclimatised with the diseases and requirements of treatment peculiar to the State in order to bring in force, the appropriate statutory amendments. 50. Thus, a stage was set for the NMC to issue appropriate regulations in exercise of the power conferred by Section 57 of the Act. Accordingly, the Licentiate Regulations were issued in exercise of the power conferred by Section 15(4) read with Section 57 and the CRMI Regulations were issued in exercise of the power conferred by Section 24(1) read with Section 57 of the Act. Keeping these developments in mind, let us now test the validity of the grounds of challenge to these Regulations. 51. As we have seen earlier, the appellant challenged the validity of Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the Licentiate Regulations on several grounds, one of which is the lack of power under the Act. But the provisions extracted above would show that NMC had the power to frame the above Regulations. 52. Prescription of minimum standards would certainly include the prescription of the minimum duration for a course. It may be open to the medical institutions of other countries to prescribe a duration of less than 54 months for the students of their country. But it is not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration, if the incumbent wants to have permanent registration in India. 53. The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. The purpose of internship is to test the ability of the students to apply their academic knowledge on their subjects, namely the patients. Medical institutions of other countries may not insist on rigorous internship for students who may not put to test their skills on the population of their country. But it is not necessary for us to follow suit. 54. Similarly, the requirement under Regulation 4(b) has been necessitated to ensure that the students who were imparted medical education in a foreign country demonstrate their skills first on the population of the country where they studied. The necessity for a Master Chef to taste the food prepared by him, before it is served on the guests, cannot be said to be arbitrary. Therefore, the challenge to the Licentiate Regulations, are wholly without basis. 55. The contention that Section 36(4) recognises M.B.B.S. courses of a duration of less than 54 months and that therefore the Licentiate Regulations being a subordinate legislation is ultra vires, is wholly unsustainable. All that sub-section (4) of Section 36 saves, are the qualifications already recognised before the date of commencement of the Act and included in the Second Schedule and Part-II of the Third Schedule to the 1956 Act. The fact that past sins are sought to be washed away, is no ground to hold that there cannot be a course correction. As a matter of fact, Section 60 which deals with repeal and saving, also saves under clause (b) of sub- section (2), any right, privilege or obligation already acquired. This cannot be stated to be in conflict with what is prescribed for the students of the future. In any case, Section 36 deals only with recognition of the foreign medical courses and not registration as medical practitioner. Registration is covered by Section 33. Therefore, Section 36(4) cannot help the appellant. 56. The contention that the country needs more doctors and that by restricting the registration of foreign medical graduates, the fundamental right of the professionals under Article 19(1)(g) and the fundamental right of the citizens under Article 21 are impaired, is to be stated only to be rejected. It is true that the country needs more doctors, but it needs really qualified doctors and not persons trained by institutions abroad, to test their skills only in their mother land. 57. The argument that these Regulations constitute an extra- territorial law is misconceived. These Regulations do not encroach into the sovereignty of the countries where those institutions are located, by stipulating minimum standards for the students who want to practise there. These Regulations merely prescribe the minimum standards to be fulfilled by those who study in those institutions but who want to practise here in India. 58. Insofar as the challenge to the CRMI Regulations are concerned, the same is without any substance. If there are institutions in some countries which offer primary medical qualification without mandatory internship, the students are supposed not to seek admissions in those institutions. The mad rush to become qualified medical professionals, cannot drive them to countries where short-cuts to success are offered. The requirement under Para 2(a) of Schedule-II of these Regulations for foreign medical graduates to undergo internships at par with Indian medical graduates is to ensure that only those who have acquired similar skills are allowed to practice Medicine. 59. The prescription in para 2(c)(i) of Schedule-II of these Regulations that such foreign medical graduates may be posted first in colleges which have been newly opened and have yet to be recognised, is a prescription of necessity. All medical institutions of the country are equipped to provide internships only to as many students as their permitted intake may allow. Therefore, this Regulation is intended to ensure that an undue burden is not cast upon the already recognised institutions. 60. Therefore, we find that the dismissal of the writ petitions filed by the appellant before the Madras High Court was fully justified. We could have dismissed the SLPs in limine, but we thought fit to take pains to bring on record the historical facts so that the challenge to these Regulations are nipped in the bud and they do not surface in a different form or avatar.
### Response:
0
### Explanation:
petition filed by Sadhiya Siyad, it was made clear in the said Judgment that the same would not preclude the State Medical Council from bringing to the notice of the NMC, the requirement if any, for the foreign medical graduates to undergo internship afresh to get acclimatised with the diseases and requirements of treatment peculiar to the State in order to bring in force, the appropriate statutory amendments.50. Thus, a stage was set for the NMC to issue appropriate regulations in exercise of the power conferred by Section 57 of the Act. Accordingly, the Licentiate Regulations were issued in exercise of the power conferred by Section 15(4) read with Section 57 and the CRMI Regulations were issued in exercise of the power conferred by Section 24(1) read with Section 57 of the Act. Keeping these developments in mind, let us now test the validity of the grounds of challenge to these Regulations.51. As we have seen earlier, the appellant challenged the validity of Regulation 4(a)(i) and Regulation 4(a)(ii), 4(b) and (4(c) of the Licentiate Regulations on several grounds, one of which is the lack of power under the Act. But the provisions extracted above would show that NMC had the power to frame the above Regulations.52. Prescription of minimum standards would certainly include the prescription of the minimum duration for a course. It may be open to the medical institutions of other countries to prescribe a duration of less than 54 months for the students of their country. But it is not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration, if the incumbent wants to have permanent registration in India.53. The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. The purpose of internship is to test the ability of the students to apply their academic knowledge on their subjects, namely the patients. Medical institutions of other countries may not insist on rigorous internship for students who may not put to test their skills on the population of their country. But it is not necessary for us to follow suit.54. Similarly, the requirement under Regulation 4(b) has been necessitated to ensure that the students who were imparted medical education in a foreign country demonstrate their skills first on the population of the country where they studied. The necessity for a Master Chef to taste the food prepared by him, before it is served on the guests, cannot be said to be arbitrary. Therefore, the challenge to the Licentiate Regulations, are wholly without basis.55. The contention that Section 36(4) recognises M.B.B.S. courses of a duration of less than 54 months and that therefore the Licentiate Regulations being a subordinate legislation is ultra vires, is wholly unsustainable. All that sub-section (4) of Section 36 saves, are the qualifications already recognised before the date of commencement of the Act and included in the Second Schedule and Part-II of the Third Schedule to the 1956 Act. The fact that past sins are sought to be washed away, is no ground to hold that there cannot be a course correction. As a matter of fact, Section 60 which deals with repeal and saving, also saves under clause (b) of sub- section (2), any right, privilege or obligation already acquired. This cannot be stated to be in conflict with what is prescribed for the students of the future. In any case, Section 36 deals only with recognition of the foreign medical courses and not registration as medical practitioner. Registration is covered by Section 33. Therefore, Section 36(4) cannot help the appellant.56. The contention that the country needs more doctors and that by restricting the registration of foreign medical graduates, the fundamental right of the professionals under Article 19(1)(g) and the fundamental right of the citizens under Article 21 are impaired, is to be stated only to be rejected. It is true that the country needs more doctors, but it needs really qualified doctors and not persons trained by institutions abroad, to test their skills only in their mother land.57. The argument that these Regulations constitute an extra- territorial law is misconceived. These Regulations do not encroach into the sovereignty of the countries where those institutions are located, by stipulating minimum standards for the students who want to practise there. These Regulations merely prescribe the minimum standards to be fulfilled by those who study in those institutions but who want to practise here in India.58. Insofar as the challenge to the CRMI Regulations are concerned, the same is without any substance. If there are institutions in some countries which offer primary medical qualification without mandatory internship, the students are supposed not to seek admissions in those institutions. The mad rush to become qualified medical professionals, cannot drive them to countries where short-cuts to success are offered. The requirement under Para 2(a) of Schedule-II of these Regulations for foreign medical graduates to undergo internships at par with Indian medical graduates is to ensure that only those who have acquired similar skills are allowed to practice Medicine.59. The prescription in para 2(c)(i) of Schedule-II of these Regulations that such foreign medical graduates may be posted first in colleges which have been newly opened and have yet to be recognised, is a prescription of necessity. All medical institutions of the country are equipped to provide internships only to as many students as their permitted intake may allow. Therefore, this Regulation is intended to ensure that an undue burden is not cast upon the already recognised institutions.60. Therefore, we find that the dismissal of the writ petitions filed by the appellant before the Madras High Court was fully justified. We could have dismissed the SLPs in limine, but we thought fit to take pains to bring on record the historical facts so that the challenge to these Regulations are nipped in the bud and they do not surface in a different form or avatar.
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Haji Sharafat Hussain and Others Vs. Badri Bishal Dhandhania | the defendants would pay Rs. 7, 000 to the plaintiff towards the costs of the suit, that amount would be set off against the consideration for the sale, and defendants Nos. 1 to 4 would execute a "kebala" in favour of the "plaintiff or his nominee or nominees" in respect of the suit properties, and get the same registered by November 30, 1965. The plaintiff on his part agreed and undertook that on such execution he would pay defendant No. 1 a sum of Rs. 1, 19, 999 on account of the balance of the consideration of Rs. 1, 25, 000 after deducting Rs. 5, 000 on account of certain money already paid by him to defendant No. 1 and that if the defendant failed to execute and register the "kebala" by November 30, 1965, the plaintiff would be the right to have it executed and registered by the Court "in his own favour or in favour of his nominee or nominees", and further that if the plaintiff failed to have the "kebala" executed and registered and pay the balance of the consideration, he would forfeit the right to recover the earnest money of Rs. 5, 001 from the defendants and will have no right to get the "kebala" executed. The decree was, in that case, to become infructuous.3. The plaintiff contended that stamps worth Rs. 1, 600 and Rs. 1, 694 were purchased by him on November 20, 1965, stamps worth Rs. 2, 200 were purchased on November 30, 1965, and drafts, on November 20, 1965, but the defendants did not perform their part of the obligation. The defendants contended, however, that the drafts were handed over on November 29, 1965, in the evening, and could not therefore be verified by their lawyer and there was default on the part of the plaintiff who thereby forfeited his right to get the decree executed. It was pleaded that time was of the essence of the contract. The Subordinate Judge of Bhagalpur held on July 31, 1967, that the compromise decree was no longer binding on the parties and the execution application was maintainable because the plaintiff was not intending, from the very beginning, to purchase the property himself, but waited to sell away its bulk to others for profit and that the ten sale deeds which the plaintiff wanted to be executed in favour of various persons would drive the defendants to the institution of suits for recovery of money if the consideration was not paid at the time of execution. It was also held, inter alia, that the plaintiffs demand for the execution on ten "kebalas". The Subordinate Judge held further that time was of the essence of the contract and there was no right to have the "kebalas" executed after November 30, 1965.4. The plaintiff felt aggrieved and went up in appeal to the High Court, which took the view that there was sufficient time for the defendants to consult their lawyers in regard to the draft "kebalas" and that the plaintiff was never told that the drafts were not in consonance with the agreement. The High Court also held that as the defendants had themselves stated in their application (which was filed on December 1, 1965) that the "plaintiff should have got the kebalas executed by November 30, 1965, otherwise the earnest money, etc. should stand forfeited". The contention that only one "kebala" was to be executed in favour of the decree-holder or his nominee or nominees could not be accepted and that the plaintiff was in default in submitting as many as ten "kebalas" for execution. The appeal was therefore allowed, the order of the Subordinate Judge was set aside and detailed directions were given for the execution and registration of the documents of sale. The defendants feel aggrieved and have filed the present appeal.5. It has been argued by for the appellants that, under the terms of the compromise decree, the respondent was not entitled to ask for the execution of ten "kebalas" and that the High Court erred in holding that he himself was not the defaulter. We have already made a reference to the terms of the compromise petition dated May 17, 1965 whereby defendants Nos. 1 to 4 agreed and undertook, to execute a "kebala" in favour of the plaintiff or "his nominee or nominees" in respect of the suit properties. We have also made a reference to the defendants own application of December 1, 1965 in which they admitted that, according to the terms of the compromise decree, the plaintiff had to get the "kebalas" executed by November 30, 1965. We are of the opinion that the High Court was justified on the basis of these documents, in taking the view that the plaintiff was entitled to have ten "kebalas" executed by November 30, 1965 and that the plaintiff was not a defaulter on that account. There is thus no force in the argument to the contrary.6. The only other argument which has been advanced for our consideration is that the High Court has erred in rejection the contention that the plaintiff was not ready with the money, and that there was no continuous readiness and willingness on his part to perform his part of the contract. It will be enough for us to say in this connection that it is not in dispute that the plaintiff handed over the drafts of the "kebalas", at any rate, on November 29, 1965, and filed a petition in the Subordinate Judges Court on November 30, stating that he had handed over the drafts for approval and had deposited the money in the treasury for purchasing of stamps and had obtained the same within the knowledge of the defendants. It was also stated in that application that the plaintiff was prepared to pay the consideration as stipulated in the compromise petition. There is therefore no justification for the argument that the plaintiff was not ready and willing to perform his part of the contract. | 0[ds]We have already made a reference to the terms of the compromise petition dated May 17, 1965 whereby defendants Nos. 1 to 4 agreed and undertook, to execute a "kebala" in favour of the plaintiff or "his nominee or nominees" in respect of the suit properties. We have also made a reference to the defendants own application of December 1, 1965 in which they admitted that, according to the terms of the compromise decree, the plaintiff had to get the "kebalas" executed by November 30, 1965. We are of the opinion that the High Court was justified on the basis of these documents, in taking the view that the plaintiff was entitled to have ten "kebalas" executed by November 30, 1965 and that the plaintiff was not a defaulter on that account. There is thus no force in the argument to the contrary.6. The only other argument which has been advanced for our consideration is that the High Court has erred in rejection the contention that the plaintiff was not ready with the money, and that there was no continuous readiness and willingness on his part to perform his part of the contract. It will be enough for us to say in this connection that it is not in dispute that the plaintiff handed over the drafts of the "kebalas", at any rate, on November 29, 1965, and filed a petition in the Subordinate Judges Court on November 30, stating that he had handed over the drafts for approval and had deposited the money in the treasury for purchasing of stamps and had obtained the same within the knowledge of the defendants. It was also stated in that application that the plaintiff was prepared to pay the consideration as stipulated in the compromise petition. There is therefore no justification for the argument that the plaintiff was not ready and willing to perform his part of the contract. | 0 | 1,240 | 354 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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the defendants would pay Rs. 7, 000 to the plaintiff towards the costs of the suit, that amount would be set off against the consideration for the sale, and defendants Nos. 1 to 4 would execute a "kebala" in favour of the "plaintiff or his nominee or nominees" in respect of the suit properties, and get the same registered by November 30, 1965. The plaintiff on his part agreed and undertook that on such execution he would pay defendant No. 1 a sum of Rs. 1, 19, 999 on account of the balance of the consideration of Rs. 1, 25, 000 after deducting Rs. 5, 000 on account of certain money already paid by him to defendant No. 1 and that if the defendant failed to execute and register the "kebala" by November 30, 1965, the plaintiff would be the right to have it executed and registered by the Court "in his own favour or in favour of his nominee or nominees", and further that if the plaintiff failed to have the "kebala" executed and registered and pay the balance of the consideration, he would forfeit the right to recover the earnest money of Rs. 5, 001 from the defendants and will have no right to get the "kebala" executed. The decree was, in that case, to become infructuous.3. The plaintiff contended that stamps worth Rs. 1, 600 and Rs. 1, 694 were purchased by him on November 20, 1965, stamps worth Rs. 2, 200 were purchased on November 30, 1965, and drafts, on November 20, 1965, but the defendants did not perform their part of the obligation. The defendants contended, however, that the drafts were handed over on November 29, 1965, in the evening, and could not therefore be verified by their lawyer and there was default on the part of the plaintiff who thereby forfeited his right to get the decree executed. It was pleaded that time was of the essence of the contract. The Subordinate Judge of Bhagalpur held on July 31, 1967, that the compromise decree was no longer binding on the parties and the execution application was maintainable because the plaintiff was not intending, from the very beginning, to purchase the property himself, but waited to sell away its bulk to others for profit and that the ten sale deeds which the plaintiff wanted to be executed in favour of various persons would drive the defendants to the institution of suits for recovery of money if the consideration was not paid at the time of execution. It was also held, inter alia, that the plaintiffs demand for the execution on ten "kebalas". The Subordinate Judge held further that time was of the essence of the contract and there was no right to have the "kebalas" executed after November 30, 1965.4. The plaintiff felt aggrieved and went up in appeal to the High Court, which took the view that there was sufficient time for the defendants to consult their lawyers in regard to the draft "kebalas" and that the plaintiff was never told that the drafts were not in consonance with the agreement. The High Court also held that as the defendants had themselves stated in their application (which was filed on December 1, 1965) that the "plaintiff should have got the kebalas executed by November 30, 1965, otherwise the earnest money, etc. should stand forfeited". The contention that only one "kebala" was to be executed in favour of the decree-holder or his nominee or nominees could not be accepted and that the plaintiff was in default in submitting as many as ten "kebalas" for execution. The appeal was therefore allowed, the order of the Subordinate Judge was set aside and detailed directions were given for the execution and registration of the documents of sale. The defendants feel aggrieved and have filed the present appeal.5. It has been argued by for the appellants that, under the terms of the compromise decree, the respondent was not entitled to ask for the execution of ten "kebalas" and that the High Court erred in holding that he himself was not the defaulter. We have already made a reference to the terms of the compromise petition dated May 17, 1965 whereby defendants Nos. 1 to 4 agreed and undertook, to execute a "kebala" in favour of the plaintiff or "his nominee or nominees" in respect of the suit properties. We have also made a reference to the defendants own application of December 1, 1965 in which they admitted that, according to the terms of the compromise decree, the plaintiff had to get the "kebalas" executed by November 30, 1965. We are of the opinion that the High Court was justified on the basis of these documents, in taking the view that the plaintiff was entitled to have ten "kebalas" executed by November 30, 1965 and that the plaintiff was not a defaulter on that account. There is thus no force in the argument to the contrary.6. The only other argument which has been advanced for our consideration is that the High Court has erred in rejection the contention that the plaintiff was not ready with the money, and that there was no continuous readiness and willingness on his part to perform his part of the contract. It will be enough for us to say in this connection that it is not in dispute that the plaintiff handed over the drafts of the "kebalas", at any rate, on November 29, 1965, and filed a petition in the Subordinate Judges Court on November 30, stating that he had handed over the drafts for approval and had deposited the money in the treasury for purchasing of stamps and had obtained the same within the knowledge of the defendants. It was also stated in that application that the plaintiff was prepared to pay the consideration as stipulated in the compromise petition. There is therefore no justification for the argument that the plaintiff was not ready and willing to perform his part of the contract.
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### Explanation:
We have already made a reference to the terms of the compromise petition dated May 17, 1965 whereby defendants Nos. 1 to 4 agreed and undertook, to execute a "kebala" in favour of the plaintiff or "his nominee or nominees" in respect of the suit properties. We have also made a reference to the defendants own application of December 1, 1965 in which they admitted that, according to the terms of the compromise decree, the plaintiff had to get the "kebalas" executed by November 30, 1965. We are of the opinion that the High Court was justified on the basis of these documents, in taking the view that the plaintiff was entitled to have ten "kebalas" executed by November 30, 1965 and that the plaintiff was not a defaulter on that account. There is thus no force in the argument to the contrary.6. The only other argument which has been advanced for our consideration is that the High Court has erred in rejection the contention that the plaintiff was not ready with the money, and that there was no continuous readiness and willingness on his part to perform his part of the contract. It will be enough for us to say in this connection that it is not in dispute that the plaintiff handed over the drafts of the "kebalas", at any rate, on November 29, 1965, and filed a petition in the Subordinate Judges Court on November 30, stating that he had handed over the drafts for approval and had deposited the money in the treasury for purchasing of stamps and had obtained the same within the knowledge of the defendants. It was also stated in that application that the plaintiff was prepared to pay the consideration as stipulated in the compromise petition. There is therefore no justification for the argument that the plaintiff was not ready and willing to perform his part of the contract.
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Mylapore Hindu Permanant Ltd. Madras Vs. K. S. Subramania Iyer | lease deed was not a registered document and, as such, the application of the proviso to Section 12 was summarily ruled out. Hidayatullah, J. (as he then was), in his separate judgment, while agreeing with conclusion reached by the other learned Judges, has emphasised that by the first part of Section 12, the tenant is protected against his own contract and the landlord is protected by the second part of the said section; but in the case before them the landlord could not seek protection of the second part because the lease deed was not registered. 30. In V. S. Mudaliar v. N. A. Raghavacharry, 1969-2 SCR 158 = (AIR 1969 SC 435 ) by registered lease a vacant land was let to a tenant on the specific condition that the tenant should not erect any kind of permanent superstructures on the vacant site so as to entitle him to claim in future the value thereof . . . In contravention of this stipulation and without any authority from the landlord, the tenant put up a permanent superstructure on the land. The lease was for a period of 5 years. As the tenant refused to vacate the land on the expiry of the lease term, the landlord filed a suit for recovery of possession of the land. The tenant claimed protection under the Act and also filed an application under Section 9. The High Court of Madras decreed the suit of the landlord and rejected the application filed by the tenant under Section 9. This Court, after again adverting to the scheme of the Act with special reference to Ss. 3, 9 and 12 distinguished the decision of this Court in Naidus case, 1966-1 SCR 110 = (AIR 1966 SC 361 ) on the ground that the stipulation which was almost identical with the one before them was contained in an unregistered lease deed and ultimately held that a stipulation by a tenant, made in a registered lease deed that he would not build any permanent structure on the land so as to entitle him to claim in future the value thereof, is a stipulation as to the erection for a building within the proviso to Section 12 and, as such, upheld the decision of the High Court which declined to grant relief to the tenant. In the said decision, this Court again emphasised that Section 3 and 9 are subject to and controlled by the proviso to S 12. Though Section 3 provides that a tenant shall, on ejectment, be entitled to be paid as compensation the value of any building erected by him, the right conferred on the tenant by Section 3 is controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof. This Court further held that the said stipulation in the registered lease deed overrides the tenants rights under Section 3 and that if a tenant erects a permanent structure in contravention of the stipulation, he is not entitled to any compensation under Section 3. It was further held that as the said tenant was not entitled to any compensation under S. 3, he cannot claim the benefit of S. 9. 31. If a stipulation, contained in a registered lease deed that the tenant shall not erect permanent structures on the land so as to entitle him to claim the value thereof and if such a stipulation overrides the tenants rights under Sec. 3 disentitling him to claim compensation under S. 3 in respect of buildings put up by him in contravention of the said stipulation, as held in Mudaliars Case, 1969-2 SCR 158 = (AIR 1969 SC 435 );we have no hesitation in holding that Clause 4 read with Clause 2 of Exhibit A-1, under which the respondent has agreed to limit the quantum of compensation payable in respect of the buildings constructed by him is a stipulation as to the erection of buildings, attracting the proviso to Section 12 of the Act. In this view, we further hold that the said stipulation overrides the tenants rights under Section 3, as he will not be eligible to claim compensation under the Act. It follows that as he is not entitled to compensation under Section 3, but only to the value of the building as per the agreement Exhibit A-1, the tenant cannot claim the benefit of Section 9. Therefore, it follows that the decree and judgment of the Letters Patent Bench under appeal has to be set aside. 32. Before we conclude we may also state that Mr. Natesan drew our attention to a Division Bench Judgment of the Madras High Court in Palaniappa Gounder v. Sridharan Nair, 1963-2 Mad LJ 559 = (AIR 1964 Mad 285 ). We do not propose to consider that decision as it is seen that the learned Judges had to consider the question whether a term in the contract as to transfer of ownership of the building without any claim for compensation, at the termination of the lease, could be construed to be a stipulation made by the tenant as to the erection for buildings. The clauses that arise for consideration before us to which reference has been made, are entirely different. Though under Exhibit A-1 the respondent is bound to surrender possession of the land and the building, after receiving the sum for Rs. 5,000/- as the value of the building, during the arguments Mr. Natesan, learned counsel for the appellant-landlord has quite fairly stated that his clients are prepared to pay a sum of Rs. 10,000/- as the value of the building provided the respondent-tenant surrenders vacant possession of the building and the land to the landlord within a period of six months from the date of this judgment, without putting the appellant to the necessity of taking out execution proceedings. We are of the view that the appellants offer is quite reasonable. | 1[ds]In the said decision, this Court again emphasised that Section 3 and 9 are subject to and controlled by the proviso to S 12. Though Section 3 provides that a tenant shall, on ejectment, be entitled to be paid as compensation the value of any building erected by him, the right conferred on the tenant by Section 3 is controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof. This Court further held that the said stipulation in the registered lease deed overrides the tenants rights under Section 3 and that if a tenant erects a permanent structure in contravention of the stipulation, he is not entitled to any compensation under Section 3. It was further held that as the said tenant was not entitled to any compensation under S. 3, he cannot claim the benefit of S. 9If a stipulation, contained in a registered lease deed that the tenant shall not erect permanent structures on the land so as to entitle him to claim the value thereof and if such a stipulation overrides the tenants rights under Sec. 3 disentitling him to claim compensation under S. 3 in respect of buildings put up by him in contravention of the said stipulation, as held in Mudaliars Case, 1969-2 SCR 158 = (AIR 1969 SC 435 );we have no hesitation in holding that Clause 4 read with Clause 2 of Exhibit A-1, under which the respondent has agreed to limit the quantum of compensation payable in respect of the buildings constructed by him is a stipulation as to the erection of buildings, attracting the proviso to Section 12 of the Act. In this view, we further hold that the said stipulation overrides the tenants rights under Section 3, as he will not be eligible to claim compensation under the Act. It follows that as he is not entitled to compensation under Section 3, but only to the value of the building as per the agreement Exhibit A-1, the tenant cannot claim the benefit of Section9.Therefore, it follows that thedecree and judgment of the Letters Patent Bench under appeal has to be set asideBefore we conclude we may also state that Mr. Natesan drew our attention to a Division Bench Judgment of the Madras High Court in Palaniappa Gounder v. Sridharan Nair, 1963-2 Mad LJ 559 = (AIR 1964 Mad 285 ). We do not propose to consider that decision as it is seen that the learned Judges had to consider the question whether a term in the contract as to transfer of ownership of the building without any claim for compensation, at the termination of the lease, could be construed to be a stipulation made by the tenant as to the erection for buildings. The clauses that arise for consideration before us to which reference has been made, are entirely different. Though under Exhibit A-1 the respondent is bound to surrender possession of the land and the building, after receiving the sum for Rs. 5,000/- as the value of the building, during the arguments Mr. Natesan, learned counsel for the appellant-landlord has quite fairly stated that his clients are prepared to pay a sum of Rs. 10,000/- as the value of the building provided the respondent-tenant surrenders vacant possession of the building and the land to the landlord within a period of six months from the date of this judgment, without putting the appellant to the necessity of taking out execution proceedings. We are of the view that the appellants offer is quite reasonable. | 1 | 8,512 | 654 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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lease deed was not a registered document and, as such, the application of the proviso to Section 12 was summarily ruled out. Hidayatullah, J. (as he then was), in his separate judgment, while agreeing with conclusion reached by the other learned Judges, has emphasised that by the first part of Section 12, the tenant is protected against his own contract and the landlord is protected by the second part of the said section; but in the case before them the landlord could not seek protection of the second part because the lease deed was not registered. 30. In V. S. Mudaliar v. N. A. Raghavacharry, 1969-2 SCR 158 = (AIR 1969 SC 435 ) by registered lease a vacant land was let to a tenant on the specific condition that the tenant should not erect any kind of permanent superstructures on the vacant site so as to entitle him to claim in future the value thereof . . . In contravention of this stipulation and without any authority from the landlord, the tenant put up a permanent superstructure on the land. The lease was for a period of 5 years. As the tenant refused to vacate the land on the expiry of the lease term, the landlord filed a suit for recovery of possession of the land. The tenant claimed protection under the Act and also filed an application under Section 9. The High Court of Madras decreed the suit of the landlord and rejected the application filed by the tenant under Section 9. This Court, after again adverting to the scheme of the Act with special reference to Ss. 3, 9 and 12 distinguished the decision of this Court in Naidus case, 1966-1 SCR 110 = (AIR 1966 SC 361 ) on the ground that the stipulation which was almost identical with the one before them was contained in an unregistered lease deed and ultimately held that a stipulation by a tenant, made in a registered lease deed that he would not build any permanent structure on the land so as to entitle him to claim in future the value thereof, is a stipulation as to the erection for a building within the proviso to Section 12 and, as such, upheld the decision of the High Court which declined to grant relief to the tenant. In the said decision, this Court again emphasised that Section 3 and 9 are subject to and controlled by the proviso to S 12. Though Section 3 provides that a tenant shall, on ejectment, be entitled to be paid as compensation the value of any building erected by him, the right conferred on the tenant by Section 3 is controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof. This Court further held that the said stipulation in the registered lease deed overrides the tenants rights under Section 3 and that if a tenant erects a permanent structure in contravention of the stipulation, he is not entitled to any compensation under Section 3. It was further held that as the said tenant was not entitled to any compensation under S. 3, he cannot claim the benefit of S. 9. 31. If a stipulation, contained in a registered lease deed that the tenant shall not erect permanent structures on the land so as to entitle him to claim the value thereof and if such a stipulation overrides the tenants rights under Sec. 3 disentitling him to claim compensation under S. 3 in respect of buildings put up by him in contravention of the said stipulation, as held in Mudaliars Case, 1969-2 SCR 158 = (AIR 1969 SC 435 );we have no hesitation in holding that Clause 4 read with Clause 2 of Exhibit A-1, under which the respondent has agreed to limit the quantum of compensation payable in respect of the buildings constructed by him is a stipulation as to the erection of buildings, attracting the proviso to Section 12 of the Act. In this view, we further hold that the said stipulation overrides the tenants rights under Section 3, as he will not be eligible to claim compensation under the Act. It follows that as he is not entitled to compensation under Section 3, but only to the value of the building as per the agreement Exhibit A-1, the tenant cannot claim the benefit of Section 9. Therefore, it follows that the decree and judgment of the Letters Patent Bench under appeal has to be set aside. 32. Before we conclude we may also state that Mr. Natesan drew our attention to a Division Bench Judgment of the Madras High Court in Palaniappa Gounder v. Sridharan Nair, 1963-2 Mad LJ 559 = (AIR 1964 Mad 285 ). We do not propose to consider that decision as it is seen that the learned Judges had to consider the question whether a term in the contract as to transfer of ownership of the building without any claim for compensation, at the termination of the lease, could be construed to be a stipulation made by the tenant as to the erection for buildings. The clauses that arise for consideration before us to which reference has been made, are entirely different. Though under Exhibit A-1 the respondent is bound to surrender possession of the land and the building, after receiving the sum for Rs. 5,000/- as the value of the building, during the arguments Mr. Natesan, learned counsel for the appellant-landlord has quite fairly stated that his clients are prepared to pay a sum of Rs. 10,000/- as the value of the building provided the respondent-tenant surrenders vacant possession of the building and the land to the landlord within a period of six months from the date of this judgment, without putting the appellant to the necessity of taking out execution proceedings. We are of the view that the appellants offer is quite reasonable.
### Response:
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### Explanation:
In the said decision, this Court again emphasised that Section 3 and 9 are subject to and controlled by the proviso to S 12. Though Section 3 provides that a tenant shall, on ejectment, be entitled to be paid as compensation the value of any building erected by him, the right conferred on the tenant by Section 3 is controlled by the stipulation in the registered lease deed that he shall not erect permanent structures of any kind on the land so as to entitle him to claim in future the value thereof. This Court further held that the said stipulation in the registered lease deed overrides the tenants rights under Section 3 and that if a tenant erects a permanent structure in contravention of the stipulation, he is not entitled to any compensation under Section 3. It was further held that as the said tenant was not entitled to any compensation under S. 3, he cannot claim the benefit of S. 9If a stipulation, contained in a registered lease deed that the tenant shall not erect permanent structures on the land so as to entitle him to claim the value thereof and if such a stipulation overrides the tenants rights under Sec. 3 disentitling him to claim compensation under S. 3 in respect of buildings put up by him in contravention of the said stipulation, as held in Mudaliars Case, 1969-2 SCR 158 = (AIR 1969 SC 435 );we have no hesitation in holding that Clause 4 read with Clause 2 of Exhibit A-1, under which the respondent has agreed to limit the quantum of compensation payable in respect of the buildings constructed by him is a stipulation as to the erection of buildings, attracting the proviso to Section 12 of the Act. In this view, we further hold that the said stipulation overrides the tenants rights under Section 3, as he will not be eligible to claim compensation under the Act. It follows that as he is not entitled to compensation under Section 3, but only to the value of the building as per the agreement Exhibit A-1, the tenant cannot claim the benefit of Section9.Therefore, it follows that thedecree and judgment of the Letters Patent Bench under appeal has to be set asideBefore we conclude we may also state that Mr. Natesan drew our attention to a Division Bench Judgment of the Madras High Court in Palaniappa Gounder v. Sridharan Nair, 1963-2 Mad LJ 559 = (AIR 1964 Mad 285 ). We do not propose to consider that decision as it is seen that the learned Judges had to consider the question whether a term in the contract as to transfer of ownership of the building without any claim for compensation, at the termination of the lease, could be construed to be a stipulation made by the tenant as to the erection for buildings. The clauses that arise for consideration before us to which reference has been made, are entirely different. Though under Exhibit A-1 the respondent is bound to surrender possession of the land and the building, after receiving the sum for Rs. 5,000/- as the value of the building, during the arguments Mr. Natesan, learned counsel for the appellant-landlord has quite fairly stated that his clients are prepared to pay a sum of Rs. 10,000/- as the value of the building provided the respondent-tenant surrenders vacant possession of the building and the land to the landlord within a period of six months from the date of this judgment, without putting the appellant to the necessity of taking out execution proceedings. We are of the view that the appellants offer is quite reasonable.
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Commissioner of Income Tax Vs. Gem India Manufacturing Company | We are concerned with the assessment years 1983-84 and 1984-85 in this appeal against the order of a Division Bench of the High Court of Bombay. By that order, the following question was answered in the affirmative and in favour of the assessee "Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right of confirming the order of the Commissioner of Income-tax (Appeals) holding that the assessee, engaged in cutting and polishing of diamonds, amounts to manufacturing or production of goods and is entitled to deduction under section 80-I of the Income-tax Act, 1961 ?" * The High Court gave this answer because counsel for the parties were agreed that the issue stood covered by the High Courts decision in CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274 Section 80-I gives a deduction in respect of profits and gains from industrial undertakings which, among other conditions, manufacture or produce any article or thing. The question, therefore, is whether the assessee, in cutting and polishing diamonds manufactures or produces any article or thing The Tribunal took the view that it did because in "common parlance and commercial sense raw diamonds are not the same thing as polished and cut diamonds. The two are different entities in the commercial world. Though the chemical composition remains the same the physical characteristics of shape and class, etc., are substantially different". It would appear that no material had been placed on the record before the Tribunal upon which it could have reached the conclusions that, either in common or in commercial parlance, raw diamonds were not the same thing as polished and cut diamonds, and that they were different entities in the commercial world. An ipse dixit of the Tribunal is not the best foundation for a decisionThe High Court, as aforestated, concluded that the case was covered by its decision in the case of CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274. It was not pointed out to the High Court that the question in that case was whether the assessee was an industrial company within the meaning of section 2(8) of the Finance Act, 1975, and that, in answering that question, the High Court had held that raw diamonds and cut and polished diamonds were different and distinct marketable commodities having different uses; therefore, a company engaged in cutting and polishing raw diamonds for the purpose of export was engaged in the "processing of goods" to convert them into marketable form. The question that the High Court and we are here concerned with is whether, in cutting and polishing diamonds, the assessee manufactures or produces articles or things There can be little difficulty in holding that the raw and uncut diamond is subjected to a process of cutting and polishing which yields the polished diamond, but that is not to say that the polished diamond is a new article or thing which is the result of manufacture or production. There is no material on the record upon which such a conclusion can be reached | 1[ds]The Tribunal took the view that it did because in "common parlance and commercial sense raw diamonds are not the same thing as polished and cut diamonds. The two are different entities in the commercial world. Though the chemical composition remains the same the physical characteristics of shape and class, etc., are substantially different". It would appear that no material had been placed on the record before the Tribunal upon which it could have reached the conclusions that, either in common or in commercial parlance, raw diamonds were not the same thing as polished and cut diamonds, and that they were different entities in the commercial world. An ipse dixit of the Tribunal is not the best foundation for a decisionThe High Court, as aforestated, concluded that the case was covered by its decision in the case of CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274. It was not pointed out to the High Court that the question in that case was whether the assessee was an industrial company within the meaning of section 2(8) of the Finance Act, 1975, and that, in answering that question, the High Court had held that raw diamonds and cut and polished diamonds were different and distinct marketable commodities having different uses; therefore, a company engaged in cutting and polishing raw diamonds for the purpose of export was engaged in the "processing of goods" to convert them into marketable form. The question that the High Court and we are here concerned with is whether, in cutting and polishing diamonds, the assessee manufactures or produces articles or thingsThere can be little difficulty in holding that the raw and uncut diamond is subjected to a process of cutting and polishing which yields the polished diamond, but that is not to say that the polished diamond is a new article or thing which is the result of manufacture or production. There is no material on the record upon which such a conclusion can be reached | 1 | 570 | 369 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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We are concerned with the assessment years 1983-84 and 1984-85 in this appeal against the order of a Division Bench of the High Court of Bombay. By that order, the following question was answered in the affirmative and in favour of the assessee "Whether, on the facts and in the circumstances of the case and in law, the Tribunal was right of confirming the order of the Commissioner of Income-tax (Appeals) holding that the assessee, engaged in cutting and polishing of diamonds, amounts to manufacturing or production of goods and is entitled to deduction under section 80-I of the Income-tax Act, 1961 ?" * The High Court gave this answer because counsel for the parties were agreed that the issue stood covered by the High Courts decision in CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274 Section 80-I gives a deduction in respect of profits and gains from industrial undertakings which, among other conditions, manufacture or produce any article or thing. The question, therefore, is whether the assessee, in cutting and polishing diamonds manufactures or produces any article or thing The Tribunal took the view that it did because in "common parlance and commercial sense raw diamonds are not the same thing as polished and cut diamonds. The two are different entities in the commercial world. Though the chemical composition remains the same the physical characteristics of shape and class, etc., are substantially different". It would appear that no material had been placed on the record before the Tribunal upon which it could have reached the conclusions that, either in common or in commercial parlance, raw diamonds were not the same thing as polished and cut diamonds, and that they were different entities in the commercial world. An ipse dixit of the Tribunal is not the best foundation for a decisionThe High Court, as aforestated, concluded that the case was covered by its decision in the case of CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274. It was not pointed out to the High Court that the question in that case was whether the assessee was an industrial company within the meaning of section 2(8) of the Finance Act, 1975, and that, in answering that question, the High Court had held that raw diamonds and cut and polished diamonds were different and distinct marketable commodities having different uses; therefore, a company engaged in cutting and polishing raw diamonds for the purpose of export was engaged in the "processing of goods" to convert them into marketable form. The question that the High Court and we are here concerned with is whether, in cutting and polishing diamonds, the assessee manufactures or produces articles or things There can be little difficulty in holding that the raw and uncut diamond is subjected to a process of cutting and polishing which yields the polished diamond, but that is not to say that the polished diamond is a new article or thing which is the result of manufacture or production. There is no material on the record upon which such a conclusion can be reached
### Response:
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### Explanation:
The Tribunal took the view that it did because in "common parlance and commercial sense raw diamonds are not the same thing as polished and cut diamonds. The two are different entities in the commercial world. Though the chemical composition remains the same the physical characteristics of shape and class, etc., are substantially different". It would appear that no material had been placed on the record before the Tribunal upon which it could have reached the conclusions that, either in common or in commercial parlance, raw diamonds were not the same thing as polished and cut diamonds, and that they were different entities in the commercial world. An ipse dixit of the Tribunal is not the best foundation for a decisionThe High Court, as aforestated, concluded that the case was covered by its decision in the case of CIT v. London Star Diamond Co. (I.) Ltd. 1994 MUM 274. It was not pointed out to the High Court that the question in that case was whether the assessee was an industrial company within the meaning of section 2(8) of the Finance Act, 1975, and that, in answering that question, the High Court had held that raw diamonds and cut and polished diamonds were different and distinct marketable commodities having different uses; therefore, a company engaged in cutting and polishing raw diamonds for the purpose of export was engaged in the "processing of goods" to convert them into marketable form. The question that the High Court and we are here concerned with is whether, in cutting and polishing diamonds, the assessee manufactures or produces articles or thingsThere can be little difficulty in holding that the raw and uncut diamond is subjected to a process of cutting and polishing which yields the polished diamond, but that is not to say that the polished diamond is a new article or thing which is the result of manufacture or production. There is no material on the record upon which such a conclusion can be reached
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S. Amarjit Singh Kalra (dead) by Lrs. & Others Vs. Smt. Pramod Gupta (dead) by Lrs. & Others | the relief granted in one cannot be enforced/realized without denying the relief in the other or totally nullifying or setting at naught the relief granted in the other, and in no other class of cases. 40. Even assuming that the decree appealed against or challenged before the higher Forum is joint and several but deal with the rights of more than one recognized in law to belong to each one of them on their own and unrelated to the others, and the proceedings abate in respect of one or more of either of the parties, the Courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties and part of the appeal is concerned. As and when it is found necessary to interfere with the judgment and decree challenged before it, the Court can always declare the legal position in general and restrict the ultimate relief to be granted, by confining it to those before the Court only rather than denying the relief to one and all on account of a procedure lapse or action or inaction of one or the other of the parties before it. The only exception to this course of action should be where the relief granted and the decree ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. As far as possible Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, ‘ubi jus ibi remedium’ (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice. 41. In the light of the above discussion, we hold : (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. 42. The Award/decrees, which were the subject-matter of challenge before the High Court, in these cases, viewed in the light of the above conclusions, would not render them to be a joint and inseparable decree but in substance a mere combination of several decrees depending upon the number of claimants before the Court and, therefore, joint and several or separable vis-a-vis the individual or their claims concerned. Consequently, even the abatement of the appeal in the High Court in respect of one or other of the appellants cannot by itself result in the abatement of the appeal in its entirety or render it liable to be dismissed as not duly or properly constituted or not possible to be proceeded with. The conclusions to the contrary arrived at by the High Court and liable to be and are hereby set aside. That apart, since we have also arrived at a conclusion that the rejection of the applications by the High Court was erroneous, the orders passed by the High Court in this regard also are set aside and the legal representatives of the deceased appellants before the High Court are directed to be brought on record in the appeals before the High Court.43. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. | 1[ds]29. We have carefully considered the submissions of the learned Counsel on either side. The consideration by the High Court seems to be too superficial on the basis of certain abstract principles without particular reference to the nature and character of the proceedings, the nature of claims and rights of parties, the statutory obligations cast on the Courts dealing with a reference under Section 30/31 originating from an Award under Section 11 of the Act and the source as well as origin of rights of the claimants. The Land Acquisition Collector empowered under the Act to pass the Award was not only obliged to, among other things, determine the total compensation to be allowed for the land but also apportion the said compensation among all the persons interested in the land depending upon their respective interest proportionately, whether they have appeared or not before him. If any dispute arises as to the apportionment of the compensation or any part thereof or as to the persons to whom the same or any part thereof is payable, the Land Acquisition Collector is obliged to refer such dispute to the decision of the Court. If the amount could not be disbursed at his level due to any one or the other reasons set out in Section 31, the amount has to be deposited in the Court to which normally a reference would be submitted. The claim of each one was in respect of his distinct, definite and separate share and their respective rights are notbut independent. Among themselves there is no conflicting or overlapping interest and the grant of relief to one has no adverse impact on the other(s). The mere fact that there was no division by metes and bounds on state of ground is no reason to treat it to be a jointin nature to be asserted or vindicated only by all of them joining together in the same proceedings, in one capacity or the other. As a matter of fact separate claims seem to have been filed by them before the Reference Court in respect of their own respective share. Even if they have engaged a common Counsel or even if they have filed one claim in respect of their specified separate share, it could not have the effect of altering the nature of their claim or the character of their right so as to make it an indivisible joint right. Though the Reference Court has decided all such claims together, having regard to the similarity or identical nature of issues arising for consideration of the claims, in substance and reality the proceedings must be considered in law to be of multifarious claims disposed of in a consolidated manner resulting in as many number of Awards of the Reference Court as there were claimants before it. There was no community of interest between them and that each one of them in vindicating their individual rights was not obliged to implead the other claimants of their shares in one common action/proceeding and the orders/judgment though passed in a consolidated manner, in law, amounts to as many orders or judgments as there were claimants and, by no reason, it can be branded to be a joint and inseverable one. Similarity of the claims cannot be a justification in law to treat them as a single and indivisible claim, for any or all purposes and such a thing cannot be legitimately done without sacrificing the substance to the form.30. The claim on behalf of the respondents that the compensation awarded is of a lumpsum, though shares are divided, is belied by the scheme underlying Sections 11, 18, 30 and 31 of the Act, and cannot be countenanced as of any merit. Against the Award of the Reference Court in this case, it was possible and permissible in law for everyone of the appellants to file an appeal of his own separately in respect of his share without any need or obligation to implead every other of the claimants like him as party respondent or asbecause there is no conflicting interest of claims amongst them, inter se. As such, the alleged and apprehended fear about possible inconsistent or conflicting decrees resulting therefrom if the appeals are proceeded with and disposed of on merits has no basis in law nor well founded on the facts and circumstances of these cases. Even if the appellants succeed on merits, de hors the fate of the deceased appellants the decree passed cannot either said to become ineffective or rendered incapable of successful execution.31. To surmise even then a contradictory decree coming into existence, is neither logic nor reason or acceptable by Courts of Law. Otherwise, it would amount to applying the principle of vicarious liability to penalize someone for no fault of his and denial of ones own right for the mere default or refusal of the other(s) to join or contest likewise before the Court. The fact that at a given point of time all of them joined in one proceedings because one Court in the hierarchy has chosen to club or combine all their individual and separate claims for purpose of consideration on account of the similarity of the nature of their claims or that for the sake of convenience they joined together for asserting their respective, distinct and independent claims or rights is no ground to destroy their individual right to seek remedies in respect of their respective claims. In cases of the nature, there is every possibility of one or the other among them subsequently reconciling themselves to their fate and settle with their opponents or become averse to pursue the legal battle forever so many reasons, as in the case on hand due to disinterestedness, indifference or lethargy and, therefore, the attitude, approach and resolve of one or the other should not become a disabling or disqualifying factor for others to vindicate their own individual rights without getting eclipsed or marred by the action or inaction of the others. Consequently, the fact that about 37 out of the total number of interested persons, like the appellants, were not parties before the High Court or this Court, does not, in any manner, affect or deprive the appellants to have their claims, duly and properly considered and adjudicated in accordance with law, on merits.31. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and therebythe others similarly placed as long as their distinct and independent rights to property or any claim remain in tact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the Khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabandhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even de hors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and bringing on record the legal representatives does not appear, on the peculiar nature of the case, to be just or reasonable exercise of thepower or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own notupon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of jutice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole andthe others, as well.32. The principles laid down or the ratio of the decision in Ramcase (supra), will not apply to the case on hand. As indicated earlier, the real decision in a given case would ultimately depend very much on the facts of that particular case, the nature of the right sought to be asserted and relief sought. The suit was filed in that case by some four persons asserting a right ofclaiming that they are the nearest collaterals of the vendor and heirs according to rule of succession. The sale was found to be of one entire set of properties to be enjoyed by two sets of vendees in equal shares. Since the position of law was held to be clear that there can be no partialion is the substitution of thein place of the vendee, the Court felt that two conflicting decrees were bound to result, if the appeal has to be allowed in favour of the other remaining appellants, in the teeth of the abatement of the appeal as against the deceased appellants and the decree in respect of him having become final. It is for this reason that the decree in that case was held to be a joint one and, therefore, when a part of it has become final by reason of abatement, the entire appeal was held to have abated, relying upon the decision in Jhanda Singh v. Gurmukh Singh & Ors. (supra). The Constitution Bench, which rendered the decision in Ramcase (supra), was neither concerned with any reconciliation of conflicting views on the point nor declare the correct position of law on this aspect, for the simple reason that the matter was before the Constitution Bench only on the question of constitutional validity of Section 15 of the PunjabAct, 1913, and that the appeal (C.A. No. 214/1961) was dismissed as having abated in view of the earlier unreported decision dated 10.4.2002 in C.A. No. 344/1956 (Jhandacase) rendered by a Bench of three learned Judges, without any further reference either to the other decisions striking a different note or undertaking any exercise, of the nature now before us in the light of a specific reference madeassumption in Jhandacase (supra) as though this Court in Nathucase, as a matter of general principle held that specification of shares does not affect the nature of the decree, cannot be considered to be the correct position emerging on a proper appreciation of the decision in Nathucase (supra). It was, at any rate, observed in this decision also that the nature and extent of abatement in a given case and the decision to be taken thereon will depend upon the facts of each case and, therefore, no exhaustive statement can be made either way and that the decision will ultimately depend upon the fact whether the decree obtained was a joint decree or a separate one. This question, in our considered view, cannot and should not also be decided merely on the format of the decree under challenge or it being one or the manner in which it was dealt with before or by the Court, which passed it.The question, therefore, as to when a proceeding before the Court becomes or rendered impossible or possible to be proceeded with after it had partially abated on account of the death of one or the other party on either side has been always considered to depend upon the fact as to whether the decree obtained is a joint decree or a severable one and that in case of a joint and inseverable decree if the appeal abated against one or the other, the same cannot be proceeded with further for or against the remaining parties as well. If otherwise, the decree is a joint and several or separable one, being in substance and reality a combination of many decrees, there can be no impediment for the proceedings being proceeded with among or against those remaining parties other than the deceased. As observed in Nathucase (supra) itself, the Code does not itself provide for the abatement of the appeal against the other respondents even where, as against one such it has abated but it is only the Courts which have held that in certain circumstances the appeal also would abate against aas a result of abatement against the deceased respondent. The same would be the position of an appealthe appellants, as in the other cases. Order 22 Rule 4 also was considered not to provide for abatement of the appeal(s) against theof the deceased respondent and it was specifically observed therein that to say that the appeals against them also abated in certain circumstances is not a correct statement. It was held that the appeals against such other respondents cannot be proceeded against and, therefore, had to be dismissed, in certain circumstances.37. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard and fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbing blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law, inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the Courts should adopt a liberal approach in the matter of condonation of the delay as well as the considerations which should weigh in adjudging nature of the decree, i.e., whether it is joint and inseverable or joint and severable or separable.38. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be no ground by itself to construe the decree to be joint and inseparable. At times, as in the cases on hand, the Court for its convenience might have combined the claims for joint consideration on account of similar nature of the issues in all such cases and for that reason the parties should not be penalized, for no fault of them. Actus cuirae neminem gravabit (an act of Court shall prejudice no one) is the maxim of law, which comes into play in such situations. Number of people, more for the sake of convenience, may be counselled to join together to ventilate, all their separate but similar nature of claims and this also should not result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and consequent omission to bring on record the legal heirs of the deceased party. At times one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent of their share or proportion of rights are concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned. If all such move is allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justiceregard to the peculiar facts and circumstances noticed by us that the claimants appellants have each their own distinct, separate and independent rights, the principles enumerated in Hariharcase (supra) and Indian Oxygen Ltd. case (supra) squarely apply with all force. The appeals even de hors the claims of the deceased and others who have not chosen to approach the High Court or this Court, were neither rendered incapable of consideration nor impossible of according any relief or could be held difficult to enforce the decree that may be passed, in favour of the remaining appellants without suffering the vice of inconsistency. Even if it is likely to result in two different sets of judgments of varying content, purport or reason, as long as the enforcement of the decrees passed therein are not rendered impossible due to mutual contradiction in terms ofnature, there is no justification whatsoever to assume them to be inconsistent or contradictory decrees, at all. The mere fact that in a set of similar or identical nature of cases two different nature or type of decrees was necessitated is no reason to treat them to be inconsistent or contradictory decrees, so long as both can be executed and enforced without either of them being destructive of the other. Contradictory or inconsistent decrees, consequently, could be held to have resulted only in a given case when the relief granted in one cannot be enforced/realized without denying the relief in the other or totally nullifying or setting at naught the relief granted in the other, and in no other class of cases.In the light of the above discussion, we holdWherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedingsthe remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutuallyand that the enforcement of one would negate or render impossible the enforcement of the other.The Award/decrees, which were theof challenge before the High Court, in these cases, viewed in the light of the above conclusions, would not render them to be a joint and inseparable decree but in substance a mere combination of several decrees depending upon the number of claimants before the Court and, therefore, joint and several or separablethe individual or their claims concerned. Consequently, even the abatement of the appeal in the High Court in respect of one or other of the appellants cannot by itself result in the abatement of the appeal in its entirety or render it liable to be dismissed as not duly or properly constituted or not possible to be proceededconclusions to the contrary arrived at by the High Court and liable to be and are hereby set aside. That apart, since we have also arrived at a conclusion that the rejection of the applications by the High Court was erroneous, the orders passed by the High Court in this regard also are set aside and the legal representatives of the deceased appellants before the High Court are directed to be brought on record in the appeals before the High Court.43. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. | 1 | 15,888 | 4,018 | ### Instruction:
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the relief granted in one cannot be enforced/realized without denying the relief in the other or totally nullifying or setting at naught the relief granted in the other, and in no other class of cases. 40. Even assuming that the decree appealed against or challenged before the higher Forum is joint and several but deal with the rights of more than one recognized in law to belong to each one of them on their own and unrelated to the others, and the proceedings abate in respect of one or more of either of the parties, the Courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties and part of the appeal is concerned. As and when it is found necessary to interfere with the judgment and decree challenged before it, the Court can always declare the legal position in general and restrict the ultimate relief to be granted, by confining it to those before the Court only rather than denying the relief to one and all on account of a procedure lapse or action or inaction of one or the other of the parties before it. The only exception to this course of action should be where the relief granted and the decree ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis-a-vis the other part, which had become final. As far as possible Courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, ‘ubi jus ibi remedium’ (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice. 41. In the light of the above discussion, we hold : (1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-a-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. 42. The Award/decrees, which were the subject-matter of challenge before the High Court, in these cases, viewed in the light of the above conclusions, would not render them to be a joint and inseparable decree but in substance a mere combination of several decrees depending upon the number of claimants before the Court and, therefore, joint and several or separable vis-a-vis the individual or their claims concerned. Consequently, even the abatement of the appeal in the High Court in respect of one or other of the appellants cannot by itself result in the abatement of the appeal in its entirety or render it liable to be dismissed as not duly or properly constituted or not possible to be proceeded with. The conclusions to the contrary arrived at by the High Court and liable to be and are hereby set aside. That apart, since we have also arrived at a conclusion that the rejection of the applications by the High Court was erroneous, the orders passed by the High Court in this regard also are set aside and the legal representatives of the deceased appellants before the High Court are directed to be brought on record in the appeals before the High Court.43. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety.
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of rights are concerned and may drop out of contest, bringing even the proceedings to a conclusion so far as they are concerned. If all such move is allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justiceregard to the peculiar facts and circumstances noticed by us that the claimants appellants have each their own distinct, separate and independent rights, the principles enumerated in Hariharcase (supra) and Indian Oxygen Ltd. case (supra) squarely apply with all force. The appeals even de hors the claims of the deceased and others who have not chosen to approach the High Court or this Court, were neither rendered incapable of consideration nor impossible of according any relief or could be held difficult to enforce the decree that may be passed, in favour of the remaining appellants without suffering the vice of inconsistency. Even if it is likely to result in two different sets of judgments of varying content, purport or reason, as long as the enforcement of the decrees passed therein are not rendered impossible due to mutual contradiction in terms ofnature, there is no justification whatsoever to assume them to be inconsistent or contradictory decrees, at all. The mere fact that in a set of similar or identical nature of cases two different nature or type of decrees was necessitated is no reason to treat them to be inconsistent or contradictory decrees, so long as both can be executed and enforced without either of them being destructive of the other. Contradictory or inconsistent decrees, consequently, could be held to have resulted only in a given case when the relief granted in one cannot be enforced/realized without denying the relief in the other or totally nullifying or setting at naught the relief granted in the other, and in no other class of cases.In the light of the above discussion, we holdWherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the Courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one.(4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedingsthe remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutuallyand that the enforcement of one would negate or render impossible the enforcement of the other.The Award/decrees, which were theof challenge before the High Court, in these cases, viewed in the light of the above conclusions, would not render them to be a joint and inseparable decree but in substance a mere combination of several decrees depending upon the number of claimants before the Court and, therefore, joint and several or separablethe individual or their claims concerned. Consequently, even the abatement of the appeal in the High Court in respect of one or other of the appellants cannot by itself result in the abatement of the appeal in its entirety or render it liable to be dismissed as not duly or properly constituted or not possible to be proceededconclusions to the contrary arrived at by the High Court and liable to be and are hereby set aside. That apart, since we have also arrived at a conclusion that the rejection of the applications by the High Court was erroneous, the orders passed by the High Court in this regard also are set aside and the legal representatives of the deceased appellants before the High Court are directed to be brought on record in the appeals before the High Court.43. For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have condoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety.
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Jagdish Bansu Kharwal Vs. The State of Maharashtra | and he carrying bags in the early morning at about 6pm to 6.30 pm on 17.12.2004 is established completely when the body of the deceased was found in bags in the chamber of the gutter. Inquest panchanama (exhibit 16) shows that the body was found in a gunny bag. There was a black polythene scrap bag and in that bag a dead body was wrapped in a white bedsheet. The body was identified as that of the deceased Irfan by his brother PW1 Sayyed. There was a deep cut throat injury. There were also injuries on the incised wounds on the hand, on the chest and on the stomach. The gutter in which the dead body was found was approximately 450 away from Gaurav bungalow. Thus, the evidence of PW10 is a vital evidence of the prosecution and it alone connects all the links as to how the incident had taken place. The blood stains found in the room of the accused is another strong aggravating circumstance against the appellant. The appellant was occupying the said room and the room was totally in his control. He locked the room and handed over the keys of the room. Both the appellant and the deceased were in the business of scrap material. So the body of the deceased was also disposed of like a scrap. It was put in a black polyethene scrap bag and then in the gunny bag and threw in the chamber of a drain.7. The learned defence Counsel tried to assail the evidence of all the witnesses. She pointed out that the appellant was arrested on 24.12.2004 from Uttar Pradesh but that cannot be a circumstance against the appellant. She submitted that the trial Court has disbelieved the discovery panchanama of the key of the motor cycle of the deceased which was drawn at the instance of the appellant. She further pointed out that the recovery panchanama of the clothes of the appellant is not proved by the prosecution as the panch witness PW4 turned hostile and did not support the case of the prosecution. It is to be noted that the panch Rajendra Gupta had admitted in the cross-examination that he is also from Uttar Pradesh and he knew the appellant and the appellant was also from Uttar Pradesh. He admitted in the cross-examination that on 27.12.2004, he was called at the police station. However, he denied drawing of the panchanama. The said panchanama (exh. 15) of the recovery of the clothes and the gunny bag which were found in the stream was proved by the PW17 P.I. Shafiuddin. PW17 had stated about recording of the FIR, then finding of the body and also drawing of panchanama (exhibit 9) of the room of the appellant as also about the finding of the blood stained gunny bag and clothes and bandage from the room. He had stated that the appellant was arrested at Uttar Pradesh on 24.12.2004 by PW14 P.S.I. Vani. He had stated that panchanama, memorandum were drawn in the presence of panchas and gunny bag containing some clothes, visiting cards of the deceased and photographs were found in the stream and the panchanama and the memorandum were drawn at exhibits 14 and 15. Thereafter, all the articles were sent to the C.A. The C.A. report (exhibit 48 to 51a) discloses that the blood group of the appellant was group B and the blood group of the deceased was A and on most of the articles, blood group A was found. The medical evidence tendered by the prosecution also throws light on how the deceased was killed. PW16 Dr.Shailendra Patil had conducted postmortem on 18.12.2004. He found four external injuries on the body. There were incised wound, 5cm below the chin, 20 inch in length which was through upto vertebra on vital structures plain cut and it was 5 cm deep. There were also two incised wounds on the chest and on the left forearm and one CLW was found on the thigh. He had opined that as a result of shock due to cut throat injury, the deceased had cardio respiratory arrest and he died. This evidence shows that the neck of the deceased was completely cut and due to that deep injury, there was a lot of blood flown out of the body and naturally, so many blood stains were found in the room of the appellant.8. The appellant had also sustained injuries on his person and when he was arrested, he was produced for medical examination on 24.1.2004 before Dr.Arun Satdive (PW15). Dr.Satdive found many injuries on the fingers and the palm of the appellant. All the injuries were mostly incised injuries on the fingers which were nearly 10 in numbers. Dr.Satdive (PW15) had opined that all these injuries were possible by sharp cutting edged instrument and all the injuries were caused within 7 to 10 days but they were simple in nature. Accordingly, he had given the certificate at exhibit 14. The opinion of Dr.Satdive (PW15) that the injuries were caused within 7 to 10 days and those injuries were not fresh injuries when the appellant was examined by the Dr.Satdive on 24.12.004, shows the age of the injuries and relates the same to the date of the incident i.e., on 16.12.2004, which had taken place nearly 7 to 10 days prior to 24.12.2004.9. Thus, though there is no eye witness, the circumstances prove and cumulatively establish the guilt of the appellant beyond reasonable doubt. The prosecution could not establish any motive against the appellant. However, in some cases, it is difficult to get any evidence in respect of the motive through the investigating agency. However, the evidence if collected and proved establishes the offence, then the absence of proof of motive is not a beneficial circumstances to the accused.10. In the circumstances, we do not find any illegality in the judgment of the trial Court holding the appellant accused guilty for the offence u/s 302 and 201 of the Indian Penal Code. | 0[ds]8. The appellant had also sustained injuries on his person and when he was arrested, he was produced for medical examination on 24.1.2004 before Dr.Arun Satdive (PW15). Dr.Satdive found many injuries on the fingers and the palm of the appellant. All the injuries were mostly incised injuries on the fingers which were nearly 10 in numbers. Dr.Satdive (PW15) had opined that all these injuries were possible by sharp cutting edged instrument and all the injuries were caused within 7 to 10 days but they were simple in nature. Accordingly, he had given the certificate at exhibit 14. The opinion of Dr.Satdive (PW15) that the injuries were caused within 7 to 10 days and those injuries were not fresh injuries when the appellant was examined by the Dr.Satdive on 24.12.004, shows the age of the injuries and relates the same to the date of the incident i.e., on 16.12.2004, which had taken place nearly 7 to 10 days prior to 24.12.2004.9. Thus, though there is no eye witness, the circumstances prove and cumulatively establish the guilt of the appellant beyond reasonable doubt. The prosecution could not establish any motive against the appellant. However, in some cases, it is difficult to get any evidence in respect of the motive through the investigating agency. However, the evidence if collected and proved establishes the offence, then the absence of proof of motive is not a beneficial circumstances to the accused.10. In the circumstances, we do not find any illegality in the judgment of the trial Court holding the appellantaccused guilty for the offence u/s 302 and 201 of the Indian Penal Code. | 0 | 3,182 | 302 | ### Instruction:
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and he carrying bags in the early morning at about 6pm to 6.30 pm on 17.12.2004 is established completely when the body of the deceased was found in bags in the chamber of the gutter. Inquest panchanama (exhibit 16) shows that the body was found in a gunny bag. There was a black polythene scrap bag and in that bag a dead body was wrapped in a white bedsheet. The body was identified as that of the deceased Irfan by his brother PW1 Sayyed. There was a deep cut throat injury. There were also injuries on the incised wounds on the hand, on the chest and on the stomach. The gutter in which the dead body was found was approximately 450 away from Gaurav bungalow. Thus, the evidence of PW10 is a vital evidence of the prosecution and it alone connects all the links as to how the incident had taken place. The blood stains found in the room of the accused is another strong aggravating circumstance against the appellant. The appellant was occupying the said room and the room was totally in his control. He locked the room and handed over the keys of the room. Both the appellant and the deceased were in the business of scrap material. So the body of the deceased was also disposed of like a scrap. It was put in a black polyethene scrap bag and then in the gunny bag and threw in the chamber of a drain.7. The learned defence Counsel tried to assail the evidence of all the witnesses. She pointed out that the appellant was arrested on 24.12.2004 from Uttar Pradesh but that cannot be a circumstance against the appellant. She submitted that the trial Court has disbelieved the discovery panchanama of the key of the motor cycle of the deceased which was drawn at the instance of the appellant. She further pointed out that the recovery panchanama of the clothes of the appellant is not proved by the prosecution as the panch witness PW4 turned hostile and did not support the case of the prosecution. It is to be noted that the panch Rajendra Gupta had admitted in the cross-examination that he is also from Uttar Pradesh and he knew the appellant and the appellant was also from Uttar Pradesh. He admitted in the cross-examination that on 27.12.2004, he was called at the police station. However, he denied drawing of the panchanama. The said panchanama (exh. 15) of the recovery of the clothes and the gunny bag which were found in the stream was proved by the PW17 P.I. Shafiuddin. PW17 had stated about recording of the FIR, then finding of the body and also drawing of panchanama (exhibit 9) of the room of the appellant as also about the finding of the blood stained gunny bag and clothes and bandage from the room. He had stated that the appellant was arrested at Uttar Pradesh on 24.12.2004 by PW14 P.S.I. Vani. He had stated that panchanama, memorandum were drawn in the presence of panchas and gunny bag containing some clothes, visiting cards of the deceased and photographs were found in the stream and the panchanama and the memorandum were drawn at exhibits 14 and 15. Thereafter, all the articles were sent to the C.A. The C.A. report (exhibit 48 to 51a) discloses that the blood group of the appellant was group B and the blood group of the deceased was A and on most of the articles, blood group A was found. The medical evidence tendered by the prosecution also throws light on how the deceased was killed. PW16 Dr.Shailendra Patil had conducted postmortem on 18.12.2004. He found four external injuries on the body. There were incised wound, 5cm below the chin, 20 inch in length which was through upto vertebra on vital structures plain cut and it was 5 cm deep. There were also two incised wounds on the chest and on the left forearm and one CLW was found on the thigh. He had opined that as a result of shock due to cut throat injury, the deceased had cardio respiratory arrest and he died. This evidence shows that the neck of the deceased was completely cut and due to that deep injury, there was a lot of blood flown out of the body and naturally, so many blood stains were found in the room of the appellant.8. The appellant had also sustained injuries on his person and when he was arrested, he was produced for medical examination on 24.1.2004 before Dr.Arun Satdive (PW15). Dr.Satdive found many injuries on the fingers and the palm of the appellant. All the injuries were mostly incised injuries on the fingers which were nearly 10 in numbers. Dr.Satdive (PW15) had opined that all these injuries were possible by sharp cutting edged instrument and all the injuries were caused within 7 to 10 days but they were simple in nature. Accordingly, he had given the certificate at exhibit 14. The opinion of Dr.Satdive (PW15) that the injuries were caused within 7 to 10 days and those injuries were not fresh injuries when the appellant was examined by the Dr.Satdive on 24.12.004, shows the age of the injuries and relates the same to the date of the incident i.e., on 16.12.2004, which had taken place nearly 7 to 10 days prior to 24.12.2004.9. Thus, though there is no eye witness, the circumstances prove and cumulatively establish the guilt of the appellant beyond reasonable doubt. The prosecution could not establish any motive against the appellant. However, in some cases, it is difficult to get any evidence in respect of the motive through the investigating agency. However, the evidence if collected and proved establishes the offence, then the absence of proof of motive is not a beneficial circumstances to the accused.10. In the circumstances, we do not find any illegality in the judgment of the trial Court holding the appellant accused guilty for the offence u/s 302 and 201 of the Indian Penal Code.
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8. The appellant had also sustained injuries on his person and when he was arrested, he was produced for medical examination on 24.1.2004 before Dr.Arun Satdive (PW15). Dr.Satdive found many injuries on the fingers and the palm of the appellant. All the injuries were mostly incised injuries on the fingers which were nearly 10 in numbers. Dr.Satdive (PW15) had opined that all these injuries were possible by sharp cutting edged instrument and all the injuries were caused within 7 to 10 days but they were simple in nature. Accordingly, he had given the certificate at exhibit 14. The opinion of Dr.Satdive (PW15) that the injuries were caused within 7 to 10 days and those injuries were not fresh injuries when the appellant was examined by the Dr.Satdive on 24.12.004, shows the age of the injuries and relates the same to the date of the incident i.e., on 16.12.2004, which had taken place nearly 7 to 10 days prior to 24.12.2004.9. Thus, though there is no eye witness, the circumstances prove and cumulatively establish the guilt of the appellant beyond reasonable doubt. The prosecution could not establish any motive against the appellant. However, in some cases, it is difficult to get any evidence in respect of the motive through the investigating agency. However, the evidence if collected and proved establishes the offence, then the absence of proof of motive is not a beneficial circumstances to the accused.10. In the circumstances, we do not find any illegality in the judgment of the trial Court holding the appellantaccused guilty for the offence u/s 302 and 201 of the Indian Penal Code.
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CHANDIGARH HOUSING BOARD Vs. M/S. PARASVANATH DEVELOPERS PVT. LTD. | which contributed to the non-performance of the obligations by the developer towards the residential unit buyers. (emphasis supplied) Thus, given that the breach of the Development Agreement is attributable to both, CHB and the Developer, the failure to hand over possession of the flat to the buyer cannot be said to be on account of the non-performance of the obligation of the Developer alone. Consequently, Clause 9(c) is not applicable to the present case. This reading of Clause 9(c) has also been affirmed by this Court in its order dated 21.04.2015, and for the reasons mentioned supra, we do not deem it fit to interfere with the same. 10.2 Secondly, we find that the amount awarded by the National Commission in the impugned order, i.e. Rs. 1 lakh each towards mental harassment and litigation costs, cannot be read as compensation contemplated under Clause 9(c) of the Tripartite Agreement. Evidently, the litigation costs cannot be construed as compensation. Even with respect to the award of Rs. 1 lakh for mental harassment, we find that such amount is in the nature of a general, lump sum compensation, which falls short of qualifying as compensation under Clause 9(c). This is especially because there is no mention of the stipulated fixed rate of Rs.107.60 per sq metre of the super area of the unit, per month in the impugned order. Thus, the liability of paying a total of Rs. 2 lakhs under those heads cannot be foisted on the Developer alone in terms of Clause 9(c). 10.3 Hence, the contention of the learned Counsel for the Appellant that the impugned order is liable to be set aside on the ground that the amount towards mental harassment and litigation costs is in the nature of compensation that is solely payable by the Developer in terms of Clause 9(c) of the Tripartite Agreement, cannot be accepted. 11. We also find that the Appellants reliance on the revocation deed dated 04.02.2015 is misplaced, as para 4 of this deed clearly states that the parties have accepted the award and chosen to act in accordance with the same. Thus, it cannot be argued that this revocation deed displaces the arbitration award dated 09.01.2015 and the direction therein for the Developer and CHB to pay compensation (if and when determined) in the ratio of 70:30. In any case, this revocation deed may, at best, arguably settle the rights and obligations or disputes between the parties in respect of the Development Agreement dated 06.10.2006. In our considered opinion, such settlement of rights and obligations cannot be extended in a manner that enables the Developer and CHB to wriggle out of their liability under the Tripartite Agreement with the Complainant. Thus, we find that the revocation deed dated 04.02.2015 cannot be invoked by the Appellant to escape its liability flowing from the Tripartite Agreement and the arbitration award dated 09.01.2015. 12. We also note that the finding in the arbitration award dated 09.01.2015 as to the apportionment of liability between the Developer and CHB to pay the principal sum and general compensation, must be given effect. To this extent, we find merit in the argument raised by the learned Senior Counsel for Respondent No. 1 that the prior National Commission order dated 05.03.2013 and the subsequent order of this Court dated 21.04.2015 both relegate the inter se apportionment of liability between the Developer and CHB to the arbitration award. Thus, the split of 70:30 under the arbitration award must be given effect, having attained finality. 13. In any case, we find that such division is well-founded as the sale proceeds from the flat buyers were apportioned in the same ratio of 70:30 between the Developer and CHB. This is supported by the Escrow Agreement dated 01.06.2007 executed by CHB and the Developer in pursuance of the Development Agreement dated 06.10.2006. Clause 4(b) of this Escrow Agreement provides that 30% of the sale proceeds in respect of the residential units would first be transferred to CHB, and the remaining amount shall then be transferred to the Developer. In view of this, we find that the amount directed to be paid by the National Commission in the impugned order must be paid by the Developer and CHB in the ratio of 70:30. 14. With respect to the second issue concerning the enhancement of interest rate, Clause 9(d) of the Tripartite Agreement is relevant. As mentioned supra, this Clause requires the Developer and CHB to refund the amounts received from the buyer with interest if the Developer is unable to deliver the unit to the buyer due to non-approvals from the competent authorities. Here, under Clause 9(d), the parties are liable to refund the principal sum in the ratio of 70:30 as they had received the sale proceeds in the same ratio. It has been brought to our notice that CHB has already paid 30% of the principal sum at 9% interest p.a. in accordance with the directions of the National Commission in order dated 05.03.2013 passed in a similar matter. Notably, the interest rate was revised to 10% p.a. in the impugned order and has been challenged by the Appellant. We do not find any reason to interfere with the same, as the increase was made by the National Commission in exercise of its discretionary power. It is possible that the National Commission chose to enhance the interest rate in view of the fact that it had already imposed lesser compensation than the significantly higher compensation stipulated under Clause 9(c). Thus, the contention of the Appellant on this front is liable to be dismissed. 15. In view of the foregoing observations, we find that the National Commission was right in directing the Developer and CHB to pay the principal sum of Rs. 1,03,31,250/- at 10% p.a. to the Complainant herein. Further, it is found that the direction to pay Rs. 2 lakhs in toto towards mental harassment and litigation costs in the ratio of 70:30 between the Developer and CHB, is also correct. | 0[ds]From the above, it is evident that the Developer and CHB agreed to complete the construction of the residential units within a period of 36 months from the date of signing of the Development Agreement on 06.10.2006. In the event that such construction was not done, Clause 9(c) would come into operation and the Developer would become liable to compensate the buyer at Rs. 107.60 per sq metre of the super area of the unit, per month10. A close reading of Clause 9(c) of the Tripartite Agreement indicates two salient features– first , the liability to pay compensation under this Clause can only be affixed on the Developer if it fails to fulfill the condition under Clause 9(a) and perform its obligations under the Development Agreement, i.e. if it does not hand over the possession of the flat to the buyer within a period of 36 months from the date of signing of the Development Agreement. The second feature of Clause 9(c) is that it envisages a fixed compensation of Rs. 107.60 per sq metre per month to be paid to the flat buyer10.1 When the facts of the instant case are examined in light of these observations, it becomes clear that Clause 9(c) is not attracted in the present case at all. First, there has been no fulfilment of the condition under Clause 9(a) for Clause 9(c) to come into operation. This is because the Developer never even began construction at the project site due to the dispute with CHB about the encumbrances on the allotted land. Thus, the question of finishing such construction within the period mentioned under Clause 9(a) does not even arise. Consequently, Clause 9(c), which is concerned with the non- fulfilment of this obligation, is also not attractedThus, given that the breach of the Development Agreement is attributable to both, CHB and the Developer, the failure to hand over possession of the flat to the buyer cannot be said to be on account of the non-performance of the obligation of the Developer alone. Consequently, Clause 9(c) is not applicable to the present case. This reading of Clause 9(c) has also been affirmed by this Court in its order dated 21.04.2015, and for the reasons mentioned supra, we do not deem it fit to interfere with the same10.2 Secondly, we find that the amount awarded by the National Commission in the impugned order, i.e. Rs. 1 lakh each towards mental harassment and litigation costs, cannot be read as compensation contemplated under Clause 9(c) of the Tripartite Agreement. Evidently, the litigation costs cannot be construed as compensation. Even with respect to the award of Rs. 1 lakh for mental harassment, we find that such amount is in the nature of a general, lump sum compensation, which falls short of qualifying as compensation under Clause 9(c). This is especially because there is no mention of the stipulated fixed rate of Rs.107.60 per sq metre of the super area of the unit, per month in the impugned order. Thus, the liability of paying a total of Rs. 2 lakhs under those heads cannot be foisted on the Developer alone in terms of Clause 9(c)10.3 Hence, the contention of the learned Counsel for the Appellant that the impugned order is liable to be set aside on the ground that the amount towards mental harassment and litigation costs is in the nature of compensation that is solely payable by the Developer in terms of Clause 9(c) of the Tripartite Agreement, cannot be accepted11. We also find that the Appellants reliance on the revocation deed dated 04.02.2015 is misplaced, as para 4 of this deed clearly states that the parties have accepted the award and chosen to act in accordance with the same. Thus, it cannot be argued that this revocation deed displaces the arbitration award dated 09.01.2015 and the direction therein for the Developer and CHB to pay compensation (if and when determined) in the ratio of 70:30. In any case, this revocation deed may, at best, arguably settle the rights and obligations or disputes between the parties in respect of the Development Agreement dated 06.10.2006. In our considered opinion, such settlement of rights and obligations cannot be extended in a manner that enables the Developer and CHB to wriggle out of their liability under the Tripartite Agreement with the Complainant. Thus, we find that the revocation deed dated 04.02.2015 cannot be invoked by the Appellant to escape its liability flowing from the Tripartite Agreement and the arbitration award dated 09.01.201512. We also note that the finding in the arbitration award dated 09.01.2015 as to the apportionment of liability between the Developer and CHB to pay the principal sum and general compensation, must be given effect. To this extent, we find merit in the argument raised by the learned Senior Counsel for Respondent No. 1 that the prior National Commission order dated 05.03.2013 and the subsequent order of this Court dated 21.04.2015 both relegate the inter se apportionment of liability between the Developer and CHB to the arbitration award. Thus, the split of 70:30 under the arbitration award must be given effect, having attained finality13. In any case, we find that such division is well-founded as the sale proceeds from the flat buyers were apportioned in the same ratio of 70:30 between the Developer and CHB. This is supported by the Escrow Agreement dated 01.06.2007 executed by CHB and the Developer in pursuance of the Development Agreement dated 06.10.2006. Clause 4(b) of this Escrow Agreement provides that 30% of the sale proceeds in respect of the residential units would first be transferred to CHB, and the remaining amount shall then be transferred to the Developer. In view of this, we find that the amount directed to be paid by the National Commission in the impugned order must be paid by the Developer and CHB in the ratio of 70:3014. With respect to the second issue concerning the enhancement of interest rate, Clause 9(d) of the Tripartite Agreement is relevant. As mentioned supra, this Clause requires the Developer and CHB to refund the amounts received from the buyer with interest if the Developer is unable to deliver the unit to the buyer due to non-approvals from the competent authorities. Here, under Clause 9(d), the parties are liable to refund the principal sum in the ratio of 70:30 as they had received the sale proceeds in the same ratio. It has been brought to our notice that CHB has already paid 30% of the principal sum at 9% interest p.a. in accordance with the directions of the National Commission in order dated 05.03.2013 passed in a similar matter. Notably, the interest rate was revised to 10% p.a. in the impugned order and has been challenged by the Appellant. We do not find any reason to interfere with the same, as the increase was made by the National Commission in exercise of its discretionary power. It is possible that the National Commission chose to enhance the interest rate in view of the fact that it had already imposed lesser compensation than the significantly higher compensation stipulated under Clause 9(c). Thus, the contention of the Appellant on this front is liable to be dismissed15. In view of the foregoing observations, we find that the National Commission was right in directing the Developer and CHB to pay the principal sum of Rs. 1,03,31,250/- at 10% p.a. to the Complainant herein. Further, it is found that the direction to pay Rs. 2 lakhs in toto towards mental harassment and litigation costs in the ratio of 70:30 between the Developer and CHB, is also correct. | 0 | 3,859 | 1,444 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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which contributed to the non-performance of the obligations by the developer towards the residential unit buyers. (emphasis supplied) Thus, given that the breach of the Development Agreement is attributable to both, CHB and the Developer, the failure to hand over possession of the flat to the buyer cannot be said to be on account of the non-performance of the obligation of the Developer alone. Consequently, Clause 9(c) is not applicable to the present case. This reading of Clause 9(c) has also been affirmed by this Court in its order dated 21.04.2015, and for the reasons mentioned supra, we do not deem it fit to interfere with the same. 10.2 Secondly, we find that the amount awarded by the National Commission in the impugned order, i.e. Rs. 1 lakh each towards mental harassment and litigation costs, cannot be read as compensation contemplated under Clause 9(c) of the Tripartite Agreement. Evidently, the litigation costs cannot be construed as compensation. Even with respect to the award of Rs. 1 lakh for mental harassment, we find that such amount is in the nature of a general, lump sum compensation, which falls short of qualifying as compensation under Clause 9(c). This is especially because there is no mention of the stipulated fixed rate of Rs.107.60 per sq metre of the super area of the unit, per month in the impugned order. Thus, the liability of paying a total of Rs. 2 lakhs under those heads cannot be foisted on the Developer alone in terms of Clause 9(c). 10.3 Hence, the contention of the learned Counsel for the Appellant that the impugned order is liable to be set aside on the ground that the amount towards mental harassment and litigation costs is in the nature of compensation that is solely payable by the Developer in terms of Clause 9(c) of the Tripartite Agreement, cannot be accepted. 11. We also find that the Appellants reliance on the revocation deed dated 04.02.2015 is misplaced, as para 4 of this deed clearly states that the parties have accepted the award and chosen to act in accordance with the same. Thus, it cannot be argued that this revocation deed displaces the arbitration award dated 09.01.2015 and the direction therein for the Developer and CHB to pay compensation (if and when determined) in the ratio of 70:30. In any case, this revocation deed may, at best, arguably settle the rights and obligations or disputes between the parties in respect of the Development Agreement dated 06.10.2006. In our considered opinion, such settlement of rights and obligations cannot be extended in a manner that enables the Developer and CHB to wriggle out of their liability under the Tripartite Agreement with the Complainant. Thus, we find that the revocation deed dated 04.02.2015 cannot be invoked by the Appellant to escape its liability flowing from the Tripartite Agreement and the arbitration award dated 09.01.2015. 12. We also note that the finding in the arbitration award dated 09.01.2015 as to the apportionment of liability between the Developer and CHB to pay the principal sum and general compensation, must be given effect. To this extent, we find merit in the argument raised by the learned Senior Counsel for Respondent No. 1 that the prior National Commission order dated 05.03.2013 and the subsequent order of this Court dated 21.04.2015 both relegate the inter se apportionment of liability between the Developer and CHB to the arbitration award. Thus, the split of 70:30 under the arbitration award must be given effect, having attained finality. 13. In any case, we find that such division is well-founded as the sale proceeds from the flat buyers were apportioned in the same ratio of 70:30 between the Developer and CHB. This is supported by the Escrow Agreement dated 01.06.2007 executed by CHB and the Developer in pursuance of the Development Agreement dated 06.10.2006. Clause 4(b) of this Escrow Agreement provides that 30% of the sale proceeds in respect of the residential units would first be transferred to CHB, and the remaining amount shall then be transferred to the Developer. In view of this, we find that the amount directed to be paid by the National Commission in the impugned order must be paid by the Developer and CHB in the ratio of 70:30. 14. With respect to the second issue concerning the enhancement of interest rate, Clause 9(d) of the Tripartite Agreement is relevant. As mentioned supra, this Clause requires the Developer and CHB to refund the amounts received from the buyer with interest if the Developer is unable to deliver the unit to the buyer due to non-approvals from the competent authorities. Here, under Clause 9(d), the parties are liable to refund the principal sum in the ratio of 70:30 as they had received the sale proceeds in the same ratio. It has been brought to our notice that CHB has already paid 30% of the principal sum at 9% interest p.a. in accordance with the directions of the National Commission in order dated 05.03.2013 passed in a similar matter. Notably, the interest rate was revised to 10% p.a. in the impugned order and has been challenged by the Appellant. We do not find any reason to interfere with the same, as the increase was made by the National Commission in exercise of its discretionary power. It is possible that the National Commission chose to enhance the interest rate in view of the fact that it had already imposed lesser compensation than the significantly higher compensation stipulated under Clause 9(c). Thus, the contention of the Appellant on this front is liable to be dismissed. 15. In view of the foregoing observations, we find that the National Commission was right in directing the Developer and CHB to pay the principal sum of Rs. 1,03,31,250/- at 10% p.a. to the Complainant herein. Further, it is found that the direction to pay Rs. 2 lakhs in toto towards mental harassment and litigation costs in the ratio of 70:30 between the Developer and CHB, is also correct.
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period mentioned under Clause 9(a) does not even arise. Consequently, Clause 9(c), which is concerned with the non- fulfilment of this obligation, is also not attractedThus, given that the breach of the Development Agreement is attributable to both, CHB and the Developer, the failure to hand over possession of the flat to the buyer cannot be said to be on account of the non-performance of the obligation of the Developer alone. Consequently, Clause 9(c) is not applicable to the present case. This reading of Clause 9(c) has also been affirmed by this Court in its order dated 21.04.2015, and for the reasons mentioned supra, we do not deem it fit to interfere with the same10.2 Secondly, we find that the amount awarded by the National Commission in the impugned order, i.e. Rs. 1 lakh each towards mental harassment and litigation costs, cannot be read as compensation contemplated under Clause 9(c) of the Tripartite Agreement. Evidently, the litigation costs cannot be construed as compensation. Even with respect to the award of Rs. 1 lakh for mental harassment, we find that such amount is in the nature of a general, lump sum compensation, which falls short of qualifying as compensation under Clause 9(c). This is especially because there is no mention of the stipulated fixed rate of Rs.107.60 per sq metre of the super area of the unit, per month in the impugned order. Thus, the liability of paying a total of Rs. 2 lakhs under those heads cannot be foisted on the Developer alone in terms of Clause 9(c)10.3 Hence, the contention of the learned Counsel for the Appellant that the impugned order is liable to be set aside on the ground that the amount towards mental harassment and litigation costs is in the nature of compensation that is solely payable by the Developer in terms of Clause 9(c) of the Tripartite Agreement, cannot be accepted11. We also find that the Appellants reliance on the revocation deed dated 04.02.2015 is misplaced, as para 4 of this deed clearly states that the parties have accepted the award and chosen to act in accordance with the same. Thus, it cannot be argued that this revocation deed displaces the arbitration award dated 09.01.2015 and the direction therein for the Developer and CHB to pay compensation (if and when determined) in the ratio of 70:30. In any case, this revocation deed may, at best, arguably settle the rights and obligations or disputes between the parties in respect of the Development Agreement dated 06.10.2006. In our considered opinion, such settlement of rights and obligations cannot be extended in a manner that enables the Developer and CHB to wriggle out of their liability under the Tripartite Agreement with the Complainant. Thus, we find that the revocation deed dated 04.02.2015 cannot be invoked by the Appellant to escape its liability flowing from the Tripartite Agreement and the arbitration award dated 09.01.201512. We also note that the finding in the arbitration award dated 09.01.2015 as to the apportionment of liability between the Developer and CHB to pay the principal sum and general compensation, must be given effect. To this extent, we find merit in the argument raised by the learned Senior Counsel for Respondent No. 1 that the prior National Commission order dated 05.03.2013 and the subsequent order of this Court dated 21.04.2015 both relegate the inter se apportionment of liability between the Developer and CHB to the arbitration award. Thus, the split of 70:30 under the arbitration award must be given effect, having attained finality13. In any case, we find that such division is well-founded as the sale proceeds from the flat buyers were apportioned in the same ratio of 70:30 between the Developer and CHB. This is supported by the Escrow Agreement dated 01.06.2007 executed by CHB and the Developer in pursuance of the Development Agreement dated 06.10.2006. Clause 4(b) of this Escrow Agreement provides that 30% of the sale proceeds in respect of the residential units would first be transferred to CHB, and the remaining amount shall then be transferred to the Developer. In view of this, we find that the amount directed to be paid by the National Commission in the impugned order must be paid by the Developer and CHB in the ratio of 70:3014. With respect to the second issue concerning the enhancement of interest rate, Clause 9(d) of the Tripartite Agreement is relevant. As mentioned supra, this Clause requires the Developer and CHB to refund the amounts received from the buyer with interest if the Developer is unable to deliver the unit to the buyer due to non-approvals from the competent authorities. Here, under Clause 9(d), the parties are liable to refund the principal sum in the ratio of 70:30 as they had received the sale proceeds in the same ratio. It has been brought to our notice that CHB has already paid 30% of the principal sum at 9% interest p.a. in accordance with the directions of the National Commission in order dated 05.03.2013 passed in a similar matter. Notably, the interest rate was revised to 10% p.a. in the impugned order and has been challenged by the Appellant. We do not find any reason to interfere with the same, as the increase was made by the National Commission in exercise of its discretionary power. It is possible that the National Commission chose to enhance the interest rate in view of the fact that it had already imposed lesser compensation than the significantly higher compensation stipulated under Clause 9(c). Thus, the contention of the Appellant on this front is liable to be dismissed15. In view of the foregoing observations, we find that the National Commission was right in directing the Developer and CHB to pay the principal sum of Rs. 1,03,31,250/- at 10% p.a. to the Complainant herein. Further, it is found that the direction to pay Rs. 2 lakhs in toto towards mental harassment and litigation costs in the ratio of 70:30 between the Developer and CHB, is also correct.
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Securities & Exchange Bd.Of India Vs. Burren Energy India Ltd | of Regulation 23 shall be applicable:Provided further that where the acquirer, other than the acquirer who has made an offer under regulation 21A, after assuming full acceptances, has deposited in the escrow account hundred per cent of the consideration payable in cash where the consideration payable is in cash and in the form of securities where the consideration payable is by way of issue, exchange or transfer of securities or combination thereof, he may be entitled to be appointed on the Board of Directors of the target company after a period of twenty-one days from the date of public announcement."7. The Tribunal hearing the matter in appeal took the view that under Regulation 2(1)(f) of the Regulations offer period is clearly defined as the period of time between the date of entering into Memorandum of Understanding or the public announcement, as the case may be, and the date of completion of offer formalities. The learned Tribunal was of the view that when there was no ambiguity or uncertainty in the provisions of the Regulations the definition of offer period has to be literally interpreted. The learned Tribunal went into the dictionary meaning of the expression Memorandum of Understanding and went on to hold that the same falls short of a concluded contract. As there was no Memorandum of Understanding between the parties it is the date of public announcement that would trigger of the commencement of the offer period. As the appointment of the Directors in the target company was made on 14th February, 2005 and the public announcement was made on 15th February, 2005 the learned Tribunal was of the view that the respondents (appellants before it) cannot be held liable for violating Regulation 22(7) of the Regulations, as found by the Adjudicating Officer.8. The main thrust of the contentions advanced on behalf of the appellant before us appears to be that the words Memorandum of Understanding are not words of Art conveying a single meaning. In an appropriate situation a Memorandum of Understanding may also include a concluded agreement between the parties. Even in a given case where a Memorandum of Understanding is to fall short of a concluded agreement and, in fact, the concluded agreement is executed subsequently, the offer period would still commence from the date of the Memorandum of understanding. If the offer period commences from the date of such Memorandum of Understanding, according to the learned counsel, there is no reason why the same should not commence from the date of the share purchase agreement when the parties had not executed a Memorandum of Understanding. It is also submitted that the commencement of the ‘offer period’ from the date of public announcement would primarily have relevance to a case where acquisition of shares is from the market and there is no Memorandum of Understanding or a concluded agreement pursuant thereto.9. In reply, Shri Shyam Divan, learned Senior Counsel appearing for the respondents has urged that Regulation 22(7) of the Regulations can have no application to the present case inasmuch as the disqualification from appointment on the board of directors of the target company will operate only when the acquirer or persons acting in concert are individuals and not a corporate entity. This is because under Section 253 of the Companies Act, 1956 (corresponding to Section 149 of the Companies Act, 2013) there is an embargo on a body corporate from being appointed as a director. Shri Divan has also drawn the attention of the Court to the provisions of Regulation 22(7) of the Regulations as it originally existed; its amendment in the year 2002 (which provision is relevant for the purposes of the present case) and the subsequent amendment effected in the year 2011. Shri Divan has submitted that meaning sought to be attributed to the Regulations relevant to the present case i.e. 2002 Regulations has been specifically incorporated in the Regulations amended in the year 2011. That the concluded share purchase agreement would be the starting point of the offer period is mandated under the 2011 Regulations and not under the 2002 Regulations.10. We have considered the submissions of the parties.11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today. | 1[ds]11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today. | 1 | 1,889 | 377 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of Regulation 23 shall be applicable:Provided further that where the acquirer, other than the acquirer who has made an offer under regulation 21A, after assuming full acceptances, has deposited in the escrow account hundred per cent of the consideration payable in cash where the consideration payable is in cash and in the form of securities where the consideration payable is by way of issue, exchange or transfer of securities or combination thereof, he may be entitled to be appointed on the Board of Directors of the target company after a period of twenty-one days from the date of public announcement."7. The Tribunal hearing the matter in appeal took the view that under Regulation 2(1)(f) of the Regulations offer period is clearly defined as the period of time between the date of entering into Memorandum of Understanding or the public announcement, as the case may be, and the date of completion of offer formalities. The learned Tribunal was of the view that when there was no ambiguity or uncertainty in the provisions of the Regulations the definition of offer period has to be literally interpreted. The learned Tribunal went into the dictionary meaning of the expression Memorandum of Understanding and went on to hold that the same falls short of a concluded contract. As there was no Memorandum of Understanding between the parties it is the date of public announcement that would trigger of the commencement of the offer period. As the appointment of the Directors in the target company was made on 14th February, 2005 and the public announcement was made on 15th February, 2005 the learned Tribunal was of the view that the respondents (appellants before it) cannot be held liable for violating Regulation 22(7) of the Regulations, as found by the Adjudicating Officer.8. The main thrust of the contentions advanced on behalf of the appellant before us appears to be that the words Memorandum of Understanding are not words of Art conveying a single meaning. In an appropriate situation a Memorandum of Understanding may also include a concluded agreement between the parties. Even in a given case where a Memorandum of Understanding is to fall short of a concluded agreement and, in fact, the concluded agreement is executed subsequently, the offer period would still commence from the date of the Memorandum of understanding. If the offer period commences from the date of such Memorandum of Understanding, according to the learned counsel, there is no reason why the same should not commence from the date of the share purchase agreement when the parties had not executed a Memorandum of Understanding. It is also submitted that the commencement of the ‘offer period’ from the date of public announcement would primarily have relevance to a case where acquisition of shares is from the market and there is no Memorandum of Understanding or a concluded agreement pursuant thereto.9. In reply, Shri Shyam Divan, learned Senior Counsel appearing for the respondents has urged that Regulation 22(7) of the Regulations can have no application to the present case inasmuch as the disqualification from appointment on the board of directors of the target company will operate only when the acquirer or persons acting in concert are individuals and not a corporate entity. This is because under Section 253 of the Companies Act, 1956 (corresponding to Section 149 of the Companies Act, 2013) there is an embargo on a body corporate from being appointed as a director. Shri Divan has also drawn the attention of the Court to the provisions of Regulation 22(7) of the Regulations as it originally existed; its amendment in the year 2002 (which provision is relevant for the purposes of the present case) and the subsequent amendment effected in the year 2011. Shri Divan has submitted that meaning sought to be attributed to the Regulations relevant to the present case i.e. 2002 Regulations has been specifically incorporated in the Regulations amended in the year 2011. That the concluded share purchase agreement would be the starting point of the offer period is mandated under the 2011 Regulations and not under the 2002 Regulations.10. We have considered the submissions of the parties.11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today.
### Response:
1
### Explanation:
11. In the present case, while Burren was the acquirer, UBL was the person acting in concert. This is evident from the letter of offer (public announcement) dated 15th February, 2005. The embargo under Section 22(7) is both on the acquirer and a person acting in concert. The expression person acting in concert includes a corporate entity [Regulation 2(1)(e)(2)(i) of the Regulations] and also its directors and associates [Regulation 2(1)(e)(2)(iii) of the Regulations]. If this is what is contemplated under the Regulations we do not see how the first argument advanced by Shri Divan on behalf of the respondents can have our acceptance.12. Insofar as the second argument advanced by Shri Divan is concerned it is correct that in the definition of offer period contained in Regulation 2(1)(f) of the Regulations, relevant for the present case, a concluded agreement is not contemplated to be the starting point of the offer period. But such a consequence must naturally follow once the offer period commences from the date of entering into a Memorandum of Understanding which, in most cases would reflect an agreement in principle falling short of a binding contract. If the offer period can be triggered of by an understanding that is yet to fructify into an agreement, we do not see how the same can be said not to have commenced/started from the date of a concluded agreement i.e. share purchase agreement as in the present case.13. On the view that we have taken we will have to hold that the learned Tribunal was incorrect in reaching its impugned conclusions and in reversing the order of the Adjudicating Officer. Consequently the order of the learned Tribunal is set aside and that of the Adjudicating Officer is restored. The penalty awarded by the Adjudicating Officer by order dated 25th August, 2006 shall be deposited in the manner directed within two months from today.
|
Varsha Vs. State of Maharashtra | Baba on 8.6.1997 at about 04.00 p.m. and also at about 09.30 p.m. he had seen Baba and Namdeo going on vehicle (Kawasaki Bajaj). On the next day morning at 07.00 a.m. accused No.1 Namdeo was seen telling accused No.2, "our work is completed" before leaving on his vehicle. PW 9 Ramdas (brother-in-law of deceased) also deposed having seen accused no.1 Namdeo and deceased Baba at Gadchandur on 8.6.1997 while they were going on vehicle belonging to Namdeo (accused No.1) who was driving while Baba was pillion rider on the vehicle. PW 9 Ramdas was waiting for truck at Gadchandur for going to Nanda. PW 9 also deposed about love affair between accused No.1 Namdeo and accused no.2 Varsha and that he had told Baba once or twice to give understanding to his wife (accused no.2 Varsha).All these witnesses were cross-examined in detail but their evidence in the main remained unshattered barring minor discrepancies here or there. Thus, the prosecution led evidence that the deceased Baba was seen in the company of accused No.1 Namdeo prior to the incident of murder as also about motive which accused No.1 and accused No.2 had to eliminate deceased Baba from their way of illicit relations. The criticism that all these witnesses were partisan and interested in conviction of the appellants, has no sound basis.14. The prosecution appears to have further bolstered up its case by adducing evidence as to recovery of incriminating articles. PW 4 Anil although declared hostile by the prosecution, admitted that accused No.1 was arrested and seizure panchanama (exhibit 29) shown to him borne his signature. Blood stained shirt and pant were seized. C.A. Report indicating that said articles sent as exhibits 12 and 13 were found stained with human blood group "B". The accused No.1 Namdeo and deceased Baba were found having the same blood group "B", but the accused No.1 Namdeo when he was arrested soon after the incident had no injury at all so as to explain otherwise the blood stains found on his clothes. No explanation was adduced by accused No.1 Namdeo as he chose to adopt defence of total denial. No marks of any injury were found on his body when accused No.1 Namdeo was arrested under panchanama (exhibit 27). There is no explanation given by accused No.1 Namdeo about blood stains detected on his clothes belonging human blood group of "B".15. Accused no.1 Namdeo was found in possession of incriminating articles. PW 6 Devidas deposed about discovery at the instance of accused No.1 Namdeo of the weapon of offence from his residence. The knife (suri), weapon of offence, seized under panchanama (exhibit 23) was also referred to chemical analyser and it was reported that it was found with human blood stains of "B" group. The motor-cycle, Kawasaki Bajaj, which accused No.1 Namdeo found possessed lent further corroboration to the evidence of PW 7 to PW 9, witnesses who had seen deceased Baba in the company of accused no.1 Namdeo while they both were travelling by motor-cycle Kawasaki Bajaj to which PW 9 specifically referred. The said motor-cycle was claimed by accused No.1 Namdeo during pendency of case, leather packet cover and rubber grips of the motor-cycle were seized and sent to chemical analyser which were reportedly found stained with human blood; so also sample of earth collected from the spot of offence.16. Photographs along with negatives, three greeting cards, handwritten chits, blue film video cassette seized and watched under separate panchanama such articles seized at the instance of accused No.1 Namdeo is evidence of tell-a-tale effect when read along with evidence of handwriting expert (PW 15) reliably indicating the nature of illicit relations which accused No.1 and accused no.2 had developed between themselves with strong motive to eliminate deceased Baba (who was husband of accused No.2 Varsha). Thus, evidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refined cross-examination by defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals. | 0[ds]We do not find any sound or rational reason to upset the verdict impugned herein. After hearing submissions at the bar and perusing entire material on record, in our judgment the appeals have to be dismissed for the followingHazaray has deposed that all injuries described by him in thereport were possible by the weapon viz. dagger (Article D) which was shown to him. He deposed that cause of death of deceased Baba was shock due to haemorrhage on account of injuries described in column Nos.17 and 18 of themreport, reproduced above. It is thus sufficiently established on record that death of Baba was homicidal and it was neither accidental nor suicidal. Init was clarified further that the external injuries and internal injuries were corresponding and injuries No.4, 5, 6 and 11 were singly as well as collectively dangerous for life.12. Although there is no direct evidence about the incident of murder of Baba, there is strong circumstantial evidence forming chain of events leading to the inescapable conclusion as to the guilt of the accused Nos.1 andevidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refinedby defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals. | 0 | 3,820 | 582 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
Baba on 8.6.1997 at about 04.00 p.m. and also at about 09.30 p.m. he had seen Baba and Namdeo going on vehicle (Kawasaki Bajaj). On the next day morning at 07.00 a.m. accused No.1 Namdeo was seen telling accused No.2, "our work is completed" before leaving on his vehicle. PW 9 Ramdas (brother-in-law of deceased) also deposed having seen accused no.1 Namdeo and deceased Baba at Gadchandur on 8.6.1997 while they were going on vehicle belonging to Namdeo (accused No.1) who was driving while Baba was pillion rider on the vehicle. PW 9 Ramdas was waiting for truck at Gadchandur for going to Nanda. PW 9 also deposed about love affair between accused No.1 Namdeo and accused no.2 Varsha and that he had told Baba once or twice to give understanding to his wife (accused no.2 Varsha).All these witnesses were cross-examined in detail but their evidence in the main remained unshattered barring minor discrepancies here or there. Thus, the prosecution led evidence that the deceased Baba was seen in the company of accused No.1 Namdeo prior to the incident of murder as also about motive which accused No.1 and accused No.2 had to eliminate deceased Baba from their way of illicit relations. The criticism that all these witnesses were partisan and interested in conviction of the appellants, has no sound basis.14. The prosecution appears to have further bolstered up its case by adducing evidence as to recovery of incriminating articles. PW 4 Anil although declared hostile by the prosecution, admitted that accused No.1 was arrested and seizure panchanama (exhibit 29) shown to him borne his signature. Blood stained shirt and pant were seized. C.A. Report indicating that said articles sent as exhibits 12 and 13 were found stained with human blood group "B". The accused No.1 Namdeo and deceased Baba were found having the same blood group "B", but the accused No.1 Namdeo when he was arrested soon after the incident had no injury at all so as to explain otherwise the blood stains found on his clothes. No explanation was adduced by accused No.1 Namdeo as he chose to adopt defence of total denial. No marks of any injury were found on his body when accused No.1 Namdeo was arrested under panchanama (exhibit 27). There is no explanation given by accused No.1 Namdeo about blood stains detected on his clothes belonging human blood group of "B".15. Accused no.1 Namdeo was found in possession of incriminating articles. PW 6 Devidas deposed about discovery at the instance of accused No.1 Namdeo of the weapon of offence from his residence. The knife (suri), weapon of offence, seized under panchanama (exhibit 23) was also referred to chemical analyser and it was reported that it was found with human blood stains of "B" group. The motor-cycle, Kawasaki Bajaj, which accused No.1 Namdeo found possessed lent further corroboration to the evidence of PW 7 to PW 9, witnesses who had seen deceased Baba in the company of accused no.1 Namdeo while they both were travelling by motor-cycle Kawasaki Bajaj to which PW 9 specifically referred. The said motor-cycle was claimed by accused No.1 Namdeo during pendency of case, leather packet cover and rubber grips of the motor-cycle were seized and sent to chemical analyser which were reportedly found stained with human blood; so also sample of earth collected from the spot of offence.16. Photographs along with negatives, three greeting cards, handwritten chits, blue film video cassette seized and watched under separate panchanama such articles seized at the instance of accused No.1 Namdeo is evidence of tell-a-tale effect when read along with evidence of handwriting expert (PW 15) reliably indicating the nature of illicit relations which accused No.1 and accused no.2 had developed between themselves with strong motive to eliminate deceased Baba (who was husband of accused No.2 Varsha). Thus, evidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refined cross-examination by defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals.
### Response:
0
### Explanation:
We do not find any sound or rational reason to upset the verdict impugned herein. After hearing submissions at the bar and perusing entire material on record, in our judgment the appeals have to be dismissed for the followingHazaray has deposed that all injuries described by him in thereport were possible by the weapon viz. dagger (Article D) which was shown to him. He deposed that cause of death of deceased Baba was shock due to haemorrhage on account of injuries described in column Nos.17 and 18 of themreport, reproduced above. It is thus sufficiently established on record that death of Baba was homicidal and it was neither accidental nor suicidal. Init was clarified further that the external injuries and internal injuries were corresponding and injuries No.4, 5, 6 and 11 were singly as well as collectively dangerous for life.12. Although there is no direct evidence about the incident of murder of Baba, there is strong circumstantial evidence forming chain of events leading to the inescapable conclusion as to the guilt of the accused Nos.1 andevidence of discovery pursuant to disclosure statement by accused No.1 is very relevant throwing light on motive to commit murder and incriminating against both the accused (appellants) particularly when both the accused chose to deny relevant facts which had been conclusively established. The trial Court was justified to draw inference of guilt.17. Minor variances which were natural in evidence of rustic witnesses from village who were subjected to skillful and refinedby defence counsel are, according to us, not material discrepancies on vital particulars of circumstances established so as to upset the conviction which has been recorded by the trial Court by reasoned and detailed judgment. The Court has to make efforts to separate grain from the chalf. Variances on the fringes, discrepancies in details, contradictions in narrations and embelishments in inessential parts cannot militate against the core of testimonies giving impression of truth and conformity to probability or inescapable inference as to crime and animus of accused. Every circumstance established by the prosecution including "last seen together" are clear and cogent and all are incompatible with innocence of both the accused who were in illicit relationship with each other and were motivated in company with each other to eliminate deceased Baba. The evidence disclosing that accused no.1 met accused No.2 after the incident to tell her that "their work is completed" is also clinching evidence to exclude possibility of any one else being real culprits except the accused/ appellants herein. The circumstances relied upon by the trial Court are, in our opinion, reliable and cogent to enable a conclusion of guilt as they were consistent with hypothesis of guilt and inconsistent with innocence. They also excluded possibility of guilt of any other person than the accused and do prove guilt of both the accused beyond reasonable doubt as the totality of circumstances formed a chain so complete that there was no scope for any other conclusion except that the crime was committed by accused No.1 and accused No.2 in conspiracy with each other. Therefore, in our opinion, both the accused were rightly convicted by the trial Court of offence of murder in conspiracy with each other. We do not find merit in the appeals.
|
Khushal Khemgar Shah & Ors Vs. Khorshed Banu Dadiba Boatwalla And Anr | on the happening of certain contingencies. Section 46 provides that on the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. These provisions deal with the concept and consequences of dissolution of the firm: they do not either abrogate the terms of the contract between the partners relating to the consequences to ensue in the event of the death of a partner when the firm is not to stand dissolved by such death, nor to the right which the partner has in the assets and property of the firm.The Partnership Act does not operate to extinguish the right in the assets of the firm of a partner who dies, when the partnership agreement provides that on death the partnership is to continue. In the absence of a term in the deed of partnership to that effect, it cannot be inferred that a term that the partnership shall continue notwithstanding the death of a partner, will operate to extinguish his proprietary right in the assets of the firm.5. Clause 8 of the deed of partnership reads as follows:"This partnership shall not be dissolved or determined by the death of any of the parties hereto but the same shall be continued as between the surviving partners on the same terms and conditions but with such shares as shall then be determined."Mr. Nariman says that goodwill is nothing but the right to the name, the place of business and the reputation of the firm, and when all these components of the right by express agreement between the partners devolve upon the surviving partners, it follows that the share of the deceased partner in the goodwill of the firm devolves upon the surviving partners and not upon his legal representatives. The goodwill of a business is however an intangible asset being the whole advantage of the reputation and connections formed with the customers together with the circumstances which make the connection durable. It is that component of the total value of the undertaking which is attributable to the ability of the concern to earn profits over a course of years because of its reputation, location and other features. An agreement between the partners that the name, the place of business and the reputation of the firm are to be utilised by the surviving partners will not necessarily warrant an inference that it was intended that the heirs of the deceased partner will not be entitled to a share in the goodwill.6. Our attention was invited to Hunter v. Dowling, (1895) 2 Ch 223; Smith v. Nelson, (1905) 96 LT 313 and Bachubai and L. A. Watkins v. Shamji Jadowji, (1885) ILR 9 Bom 536. The first two cases proceed upon the interpretation of certain clauses in partnership agreements. It was inferred in those cases from the terms of the agreement that the right in the goodwill of a parner in a firm dying or retiring shall not survive to his legal representatives. Bachubai and L. A. Watkins case, (1885) ILR 9 Bom 536 arose out of a case in which in the partnership agreement it was provided that the firm shall be the agents of a company carrying on business as a manufacturer of cotton textiles so long as the firm carries on business in Bombay, or until the firm should resign. The firm were appointed the agents of the Company and continued to act as agents. One of the partners died, and a representative of the partner filed a suit, claiming a certain share in the assets of the firm including the goodwill. It was observed by Sargent, C. J., in rejecting the claim of the plaintiff to a share in the goodwill of the business as an asset of the firm, that:-"Assuming (which may well be doubted) that the term "goodwill" is applicable to a business of this nature, it is plain that it is attached to the name of the firm which, by the partnership agreement itself, is to be used by the surviving partners or partner for their own benefit. Such an arrangement between the partners must take away all value from the goodwill; even if it be not, - as Mr. Justice Lindley in his Treatise on Partnership, p. 887, (3rd ed.), considers it to be - inconsistent with its being an asset at all."The learned Chief Justice expressed a doubt - presumably relying upon old English decisions - that the goodwill of a firm may not be an asset at all. These observations do not set out any rule of interpretation of a deed of partnership. But the question is now settled by statutory enactment. Under the Partnership Act, 1932, it is expressly declared that the goodwill of a business is an asset. Whether the goodwill has any substantial value may be determined on the facts of each case.7. We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.The goodwill of a firm is an asset. In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement, that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.In the absence of a provision expressly made of clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets. | 0[ds]7. We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.The goodwill of a firm is an asset. In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement, that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.In the absence of a provision expressly made of clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets. | 0 | 1,839 | 169 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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on the happening of certain contingencies. Section 46 provides that on the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. These provisions deal with the concept and consequences of dissolution of the firm: they do not either abrogate the terms of the contract between the partners relating to the consequences to ensue in the event of the death of a partner when the firm is not to stand dissolved by such death, nor to the right which the partner has in the assets and property of the firm.The Partnership Act does not operate to extinguish the right in the assets of the firm of a partner who dies, when the partnership agreement provides that on death the partnership is to continue. In the absence of a term in the deed of partnership to that effect, it cannot be inferred that a term that the partnership shall continue notwithstanding the death of a partner, will operate to extinguish his proprietary right in the assets of the firm.5. Clause 8 of the deed of partnership reads as follows:"This partnership shall not be dissolved or determined by the death of any of the parties hereto but the same shall be continued as between the surviving partners on the same terms and conditions but with such shares as shall then be determined."Mr. Nariman says that goodwill is nothing but the right to the name, the place of business and the reputation of the firm, and when all these components of the right by express agreement between the partners devolve upon the surviving partners, it follows that the share of the deceased partner in the goodwill of the firm devolves upon the surviving partners and not upon his legal representatives. The goodwill of a business is however an intangible asset being the whole advantage of the reputation and connections formed with the customers together with the circumstances which make the connection durable. It is that component of the total value of the undertaking which is attributable to the ability of the concern to earn profits over a course of years because of its reputation, location and other features. An agreement between the partners that the name, the place of business and the reputation of the firm are to be utilised by the surviving partners will not necessarily warrant an inference that it was intended that the heirs of the deceased partner will not be entitled to a share in the goodwill.6. Our attention was invited to Hunter v. Dowling, (1895) 2 Ch 223; Smith v. Nelson, (1905) 96 LT 313 and Bachubai and L. A. Watkins v. Shamji Jadowji, (1885) ILR 9 Bom 536. The first two cases proceed upon the interpretation of certain clauses in partnership agreements. It was inferred in those cases from the terms of the agreement that the right in the goodwill of a parner in a firm dying or retiring shall not survive to his legal representatives. Bachubai and L. A. Watkins case, (1885) ILR 9 Bom 536 arose out of a case in which in the partnership agreement it was provided that the firm shall be the agents of a company carrying on business as a manufacturer of cotton textiles so long as the firm carries on business in Bombay, or until the firm should resign. The firm were appointed the agents of the Company and continued to act as agents. One of the partners died, and a representative of the partner filed a suit, claiming a certain share in the assets of the firm including the goodwill. It was observed by Sargent, C. J., in rejecting the claim of the plaintiff to a share in the goodwill of the business as an asset of the firm, that:-"Assuming (which may well be doubted) that the term "goodwill" is applicable to a business of this nature, it is plain that it is attached to the name of the firm which, by the partnership agreement itself, is to be used by the surviving partners or partner for their own benefit. Such an arrangement between the partners must take away all value from the goodwill; even if it be not, - as Mr. Justice Lindley in his Treatise on Partnership, p. 887, (3rd ed.), considers it to be - inconsistent with its being an asset at all."The learned Chief Justice expressed a doubt - presumably relying upon old English decisions - that the goodwill of a firm may not be an asset at all. These observations do not set out any rule of interpretation of a deed of partnership. But the question is now settled by statutory enactment. Under the Partnership Act, 1932, it is expressly declared that the goodwill of a business is an asset. Whether the goodwill has any substantial value may be determined on the facts of each case.7. We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.The goodwill of a firm is an asset. In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement, that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.In the absence of a provision expressly made of clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets.
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7. We are unable to agree with Mr. Nariman that in interpreting a deed of partnership, business whereof it is stipulated shall be continued by the surviving partners after the death of a partner, the Court will not award to the legal representatives of the deceased partner a share in the goodwill in the absence of an express stipulation to the contrary.The goodwill of a firm is an asset. In interpreting the deed of partnership, the Court will insist upon some indication that the right to a share in the assets is, by virtue of the agreement, that the surviving partners are entitled to carry on the business on the death of the partner, to be extinguished.In the absence of a provision expressly made of clearly implied, the normal rule that the share of a partner in the assets devolves upon his legal representatives will apply to the goodwill as well as to other assets.
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Shiva Glass Works Co. Ltd Vs. Assitant Collector Of Central Excise And Others | assessment, the appellant was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties. The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by excise authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently any discrepancy was detected or found, the same used to be paid by the appellant 5. The question as to whether Rule 10 or Rule 10-A of the Rules was applicable has to be determined in the background of the procedure which was followed even according to the appellant as indicated above. The legal position that Rule 10-A does not apply where the case is covered by Rule 10 of the Rules is well settled in view of the decision of this Court in N. B. Sanjana, Asstt. C.C.E. v. Elphinstone Spg. & Wvg. Mills Co. Ltd. ( 1971 (1) SCC 337 : 1971 (3) SCR 506 ), on which reliance has been placed by learned counsel for the appellant. Consequently, Rule 10-A could be attracted only if the case does not fall within the purview of Rule 10. It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provisions of Rule 9-B. On this basis and on his own finding also that Rule 9-B was not attracted, the learned Single Judge held that it was not a case of provisional assessment but a case of regular assessment in pursuance whereof duty was paid by the appellant and that since the case of the respondents was that the appellant had manufactured documents as was revealed as a consequence of the search and seizure referred to above it was a case of short levy due to misstatement by the appellant. Consequently, the case clearly fell within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding. Simply because Rule 9-B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense a contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time. In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the excise authorities were entitled to complete under Rule 10-A. In taking this view the Division Bench of the High Court has relied on a decision of this Court in Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ). In that case also the company used to furnish quarterly price lists which used to be accepted for purpose of enabling the company to clear its goods and according to the excise authorities these used to be verified afterwards by obtaining evidence of actual sale in the market before issuing final certificates that the duty had been fully paid up. The prices of the goods to be cleared were furnished by the company on forms know as ARI forms in that case also. It was held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi-judicial process and involved due application of mind to the facts as well as the requirements of law. With regard to the debit entries it was held that the making of such entries was only a mode of collection of tax and even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final. It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it. It was also held that it was the process of adjustment that really determined whether levy was short or complete. It was not a factual or presumed levy which could in a disputed case prove an "assessment". This had to be done by proof of the actual steps taken which constitute assessment 6. We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10-A and not Rule 10 of the Rules. | 0[ds]3. In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellants office on September 26, 1963 it was found that the duty paid by the appellant on the basis of price lists furnished by the appellant at the time of clearance of the goods was deficient, it was a case where duty had been short-levied "through misstatement as to the quantity, description or value of such goods on the part of the owner" as contemplated by Rule 10. We find it difficult to agree with the submission. The procedure adopted by the appellant was indicated by the appellant under its letter dated March 23,The learned Single Judge has also pointed out that the appellant used to clear the goods by executing bond and that in the specimen copy of the bond produced in court it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value, description, quality or proof thereof or for non-completion of chemical or others tests and whereas the appellant had requested the excise authorities as per Rule 9-B of the Rules to make provisional assessment of excise duty of the goods pending final assessment, the appellant was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties. The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by excise authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently any discrepancy was detected or found, the same used to be paid by thethe case clearly fell within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding. Simply because Rule 9-B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense a contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time. In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the excise authorities were entitled to complete under Rule 10-A.We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10-A and not Rule 10 of the Rules. | 0 | 2,449 | 740 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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assessment, the appellant was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties. The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by excise authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently any discrepancy was detected or found, the same used to be paid by the appellant 5. The question as to whether Rule 10 or Rule 10-A of the Rules was applicable has to be determined in the background of the procedure which was followed even according to the appellant as indicated above. The legal position that Rule 10-A does not apply where the case is covered by Rule 10 of the Rules is well settled in view of the decision of this Court in N. B. Sanjana, Asstt. C.C.E. v. Elphinstone Spg. & Wvg. Mills Co. Ltd. ( 1971 (1) SCC 337 : 1971 (3) SCR 506 ), on which reliance has been placed by learned counsel for the appellant. Consequently, Rule 10-A could be attracted only if the case does not fall within the purview of Rule 10. It was conceded before the learned Single Judge on behalf of the respondents that the respondents were not proceeding under the provisions of Rule 9-B. On this basis and on his own finding also that Rule 9-B was not attracted, the learned Single Judge held that it was not a case of provisional assessment but a case of regular assessment in pursuance whereof duty was paid by the appellant and that since the case of the respondents was that the appellant had manufactured documents as was revealed as a consequence of the search and seizure referred to above it was a case of short levy due to misstatement by the appellant. Consequently, the case clearly fell within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding. Simply because Rule 9-B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense a contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time. In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the excise authorities were entitled to complete under Rule 10-A. In taking this view the Division Bench of the High Court has relied on a decision of this Court in Assistant Collector of Central Excise, Calcutta Division v. National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ). In that case also the company used to furnish quarterly price lists which used to be accepted for purpose of enabling the company to clear its goods and according to the excise authorities these used to be verified afterwards by obtaining evidence of actual sale in the market before issuing final certificates that the duty had been fully paid up. The prices of the goods to be cleared were furnished by the company on forms know as ARI forms in that case also. It was held that only a mechanical adjustment for settlement of accounts by making debit entries was gone through and that it could not be said that any such adjustment was assessment which was a quasi-judicial process and involved due application of mind to the facts as well as the requirements of law. With regard to the debit entries it was held that the making of such entries was only a mode of collection of tax and even if payment or actual collection of tax could be spoken of as a de facto "levy" it was only provisional and not final. It could only be clothed or invested with the validity after carrying out the obligation to make an assessment to justify it. It was also held that it was the process of adjustment that really determined whether levy was short or complete. It was not a factual or presumed levy which could in a disputed case prove an "assessment". This had to be done by proof of the actual steps taken which constitute assessment 6. We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10-A and not Rule 10 of the Rules.
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3. In elaboration of his submission that it was a case covered by Rule 10 of the Rules learned counsel for the appellant pointed out that since the case of the respondents was that on the basis of the documents seized during the search of the appellants office on September 26, 1963 it was found that the duty paid by the appellant on the basis of price lists furnished by the appellant at the time of clearance of the goods was deficient, it was a case where duty had been short-levied "through misstatement as to the quantity, description or value of such goods on the part of the owner" as contemplated by Rule 10. We find it difficult to agree with the submission. The procedure adopted by the appellant was indicated by the appellant under its letter dated March 23,The learned Single Judge has also pointed out that the appellant used to clear the goods by executing bond and that in the specimen copy of the bond produced in court it was stated that whereas final assessment of excise duty of glass and glasswares made by the appellant from time to time could not be made for want of full particulars as regards value, description, quality or proof thereof or for non-completion of chemical or others tests and whereas the appellant had requested the excise authorities as per Rule 9-B of the Rules to make provisional assessment of excise duty of the goods pending final assessment, the appellant was giving a guarantee to the extent of the sum mentioned in the bond for payment of the duties. The learned Single Judge has also pointed out that it appeared to be the common case of the parties that in order to facilitate the assessment of the goods by excise authorities, the appellant used to file the price list in advance and after acceptance provisionally of the price list, the goods used to be cleared and if subsequently any discrepancy was detected or found, the same used to be paid by thethe case clearly fell within the purview of Rule 10 of the Rules. The Division Bench of the High Court in appeal did not, and in our opinion rightly, subscribe to the aforesaid finding. Simply because Rule 9-B of the Rules was conceded not to have been taken recourse to by the respondents so that a provisional assessment could be said to have come into existence in its statutory sense a contemplated by the said rule when duty was paid at the time of clearance of the goods, the conclusion was not inescapable, that a final assessment had come into being at that time. In our opinion, in view of the procedure adopted by the appellant referred to above it was apparently a case where duty was calculated on the basis of price lists supplied by the appellant to facilitate the clearance of the goods and the correct amount of duty payable was yet to be determined after subsequent verification and appellant was under an obligation to pay, on the basis of the bond executed by them, the difference of the amount of the duty paid at the time of clearance of the goods and the amount found payable after subsequent verification. In the judgment appealed against the Division Bench of the High Court has found that there was no assessment as is understood in eye of law but only a mechanical settlement or adjustment of duties on the basis of the sale prices filed by the appellant had been made and at best, it was a case of an incomplete assessment which the excise authorities were entitled to complete under Rule 10-A.We are of the opinion that in view of the procedure adopted by the appellant in the instant case referred to above and the law laid down by this Court in the case of National Tobacco Co. of India Ltd. ( 1972 (2) SCC 560 : 1973 (1) SCR 822 ) it is not possible to take any exception to the finding of the Division Bench in the judgment appealed against that it was a case which fell within the purview of Rule 10-A and not Rule 10 of the Rules.
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Satnam Singh & Another Vs. Malook Singh & Others | 1. Heard learned counsel for the appellants. 2. None appears for the respondents though served. 3. The appellant has preferred the appeal aggrieved by the judgment and order passed by the High Court in second appeal by setting aside the remand order passed by the Additional District Judge, Patiala on 25.1.2003 by which the defendant-appellant had been allowed to produce certified copies of the orders of the Assistant Collector and further to adduce additional evidence with respect to the Will dated 30.11.1987 by permitting them to place on record the original registered Will dated 30.11.1987. 4. It transpires that original will was filed by the defendant-appellant in the case pertaining to mutation, the record of the said case, was requisitioned and had been produced in the Court by Charan Singh but unfortunately the record was not retained. The District Court has allowed the evidence by making following discussion: ...14. Perusal of record of civil suit shows that on 18.10.2000 Charan Singh Office Kanungo Tehsil Samana produced some record of mutation no.903 of village Dhainthal in which registered Will no.34 dated 30.11.1987 was available. After recording such statement of Charan Singh and obtaining his signatures on his statement, thee is one more endorsement about receiving back file by said Charan Singh but such endorsement does not bear any date. When record was called from Charan Singh and he brought the record and produced the same and material document registered Will was lying on record of mutation no.903 brought by Charan Singh Office Kanungo, trial court out to have retained, why it was allowed to be taken back by Charan Singh is not understandable. 15. Perusal of statement of DW-3 Banjit Singh shows that be deposted that he had seen Will meant for original Will and he identified his signature thereon. He deposed that such Will was scribed by Ashok Kumar document writer. When Ranjith Singh DW-3 deposed so on 9.02.01 obviously original Will was available that is why he could identify his signatures on original Will but from the file it could not be understood who produced when statement of DW3 Ranjith Singh was recorded, then it should not be recorded in his statement that he had seen Will and identified his signature thereon. 16. Perusal of statement of DW-4 Ashok Kumar shows that he deposed he had seen original Will which was scribed by him. He had seen such original Will on the record of file. When he deposed so it infers that he had seen the original Will and identified his hand-writing on 2.6.01 when his statement was recorded. But it could not be spelt out from record who had brought such original Will, where original Will had gone and how original Will came in the hands of Balkar Singh or defendant-appellants. When such is the position of record of trial court, I am unable to maintain the judgment and decree of trial court when original Will is not on record and it could not be spelt out how original Will has gone in the hands of Balkar Singh or defendant-appellants. Perusal of para 13 of judgment shows that trial court observed that neither original Will nor its certified copy produced on record. When trial court made up mind to hold such findings of trial court generated from its own fault as to why it did not retain Will on record and how original Will slip from record of civil suit and how DW3 and DW4 could depose having seen original Will. Perusal of page 10 of judgment shows that trial court was overwhelmingly convinced against the Will due to reason of non-production of its certified copy. Such findings cannot be maintained at all. (i) Opportunities to lead addl. evidence to defendant appellants will be afforded for production of certified copies of orders of Asstt. Collector 1st Grade, Samana and Collector, Patiala. Trial court should afford opportunity to them to place original Will on record which is lying on record of present appeal tagged along with application dated 8.1.03; (ii) Trial Court shall afford opportunity to defendant-appellants to lead addl. evidence to prove Will dated 30.11.87 by alloweing them to place on record original registered Will of Hasura Singh dated 30.11.98; (iii) After evidence of contesting defendant so led trial court shall afford opportunities to plaintiffs for leading rebuttal evidence; (iv) After completion of such exercise trial court should re-decide all the issues in accordance with law; (v)Contesting defendant s are at liberally to either collect the original Will against proper identification and verification in accordance with law or the can summon the record of appeal for producing original Will on record of civil suit. Parties are directed to put appearance before trial court on 17.2.2003. Thereafter trial court shall endeavour to dispose of the suit as early as possible after giving due opportunities of leading evidence accordingly to both parties. 5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case. | 1[ds]5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case. | 1 | 968 | 98 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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1. Heard learned counsel for the appellants. 2. None appears for the respondents though served. 3. The appellant has preferred the appeal aggrieved by the judgment and order passed by the High Court in second appeal by setting aside the remand order passed by the Additional District Judge, Patiala on 25.1.2003 by which the defendant-appellant had been allowed to produce certified copies of the orders of the Assistant Collector and further to adduce additional evidence with respect to the Will dated 30.11.1987 by permitting them to place on record the original registered Will dated 30.11.1987. 4. It transpires that original will was filed by the defendant-appellant in the case pertaining to mutation, the record of the said case, was requisitioned and had been produced in the Court by Charan Singh but unfortunately the record was not retained. The District Court has allowed the evidence by making following discussion: ...14. Perusal of record of civil suit shows that on 18.10.2000 Charan Singh Office Kanungo Tehsil Samana produced some record of mutation no.903 of village Dhainthal in which registered Will no.34 dated 30.11.1987 was available. After recording such statement of Charan Singh and obtaining his signatures on his statement, thee is one more endorsement about receiving back file by said Charan Singh but such endorsement does not bear any date. When record was called from Charan Singh and he brought the record and produced the same and material document registered Will was lying on record of mutation no.903 brought by Charan Singh Office Kanungo, trial court out to have retained, why it was allowed to be taken back by Charan Singh is not understandable. 15. Perusal of statement of DW-3 Banjit Singh shows that be deposted that he had seen Will meant for original Will and he identified his signature thereon. He deposed that such Will was scribed by Ashok Kumar document writer. When Ranjith Singh DW-3 deposed so on 9.02.01 obviously original Will was available that is why he could identify his signatures on original Will but from the file it could not be understood who produced when statement of DW3 Ranjith Singh was recorded, then it should not be recorded in his statement that he had seen Will and identified his signature thereon. 16. Perusal of statement of DW-4 Ashok Kumar shows that he deposed he had seen original Will which was scribed by him. He had seen such original Will on the record of file. When he deposed so it infers that he had seen the original Will and identified his hand-writing on 2.6.01 when his statement was recorded. But it could not be spelt out from record who had brought such original Will, where original Will had gone and how original Will came in the hands of Balkar Singh or defendant-appellants. When such is the position of record of trial court, I am unable to maintain the judgment and decree of trial court when original Will is not on record and it could not be spelt out how original Will has gone in the hands of Balkar Singh or defendant-appellants. Perusal of para 13 of judgment shows that trial court observed that neither original Will nor its certified copy produced on record. When trial court made up mind to hold such findings of trial court generated from its own fault as to why it did not retain Will on record and how original Will slip from record of civil suit and how DW3 and DW4 could depose having seen original Will. Perusal of page 10 of judgment shows that trial court was overwhelmingly convinced against the Will due to reason of non-production of its certified copy. Such findings cannot be maintained at all. (i) Opportunities to lead addl. evidence to defendant appellants will be afforded for production of certified copies of orders of Asstt. Collector 1st Grade, Samana and Collector, Patiala. Trial court should afford opportunity to them to place original Will on record which is lying on record of present appeal tagged along with application dated 8.1.03; (ii) Trial Court shall afford opportunity to defendant-appellants to lead addl. evidence to prove Will dated 30.11.87 by alloweing them to place on record original registered Will of Hasura Singh dated 30.11.98; (iii) After evidence of contesting defendant so led trial court shall afford opportunities to plaintiffs for leading rebuttal evidence; (iv) After completion of such exercise trial court should re-decide all the issues in accordance with law; (v)Contesting defendant s are at liberally to either collect the original Will against proper identification and verification in accordance with law or the can summon the record of appeal for producing original Will on record of civil suit. Parties are directed to put appearance before trial court on 17.2.2003. Thereafter trial court shall endeavour to dispose of the suit as early as possible after giving due opportunities of leading evidence accordingly to both parties. 5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case.
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5. We find that the District Court was justified in giving opportunity to adduce the additional evidence in the peculiar fact and circumstances of the case which was discretionary order and legally justified one. Litigant could not have punished for no fault on his part. Thus the High Court has erred in setting aside the order of the remand passed by Additional District Judge on 21.5.2003. The judgment and order of the High Court cannot be said to be justified in the facts and circumstances of the case.
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Nai Bahu Vs. Ramnarayan and Others | give effect to it.12. According to Mr. Sanghi when the house was let for non- residential purpose the appellant cannot succeed in ejecting the tenant from the house for a composite purpose of residence as well as business and he submits that the principles laid down in Dr. Gopal Dass Verma (supra) fully support him.In Dr. Gopal Dass Verma (supra) this Court was dealing with the provisions of Delhi &Ajmer Rent Control Act, 1952 (briefly the Delhi Act). Section 2(g) defines premises under that Act thus" Premises means any building or part of a building which is, or is intended to be let, separately for use as a residence or for commercial use or for any other purpose, "We may contrast the definition of accommodation in the M.P. Act with which we are concerned. Under section 3(a) of the M.P. Act, "accommodation" means-(x) any land which is not being used for cultivation,(y) any building or part of a building, and it includes-(1) garden, open land and out houses, if any, appurtenant to such building or part of a building;(2) any furniture supplied by the landlord for us e in such building or part of a building;(3) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, )."13. It is significant that in the Del hi Act intention to let separately for use as a residence or for commercial use or for any other purpose is expressly mentioned under section 2(g) thereof. The principle underlying the scheme for letting separately for different uses is reflected in the Second Schedule to the Delhi Act in both Parts A and B (see paras 3 to 5 both in parts A and B). The said differentiation of purpose for separate letting does not find such significant importance in the M.P. Act as has been found by this Court in the Delhi Act Mr. Sanghi, however, draws our attention to section 4(d) of the M.P. Act which provides that if the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, that will furnish a ground for eviction under the M. P. Act. He also relies upon s. 6 of the M.P. Act where there is provision for compensation in the case of eviction on the ground mentioned in clause (h) of section 4 in case of non-residential accommodation. Counsel therefore submits that although the word separately is absent in the definition of "accommodation" in the M.P. Act there is no difference whatsoever in the actual intent of the provisions in the M.P. Act to warrant a departure from the principles laid down in Dr. Gopal Dass Verma (supra)We are unable to accept the above submission. It is clear that under the Delhi Act the scheme is significantly different from that of the M.P. Act. The definition of "premises" in the Delhi Act is a pointer. Under the M.P. Act a landlord can seek eviction of a tenant from a non- residential accommodation if he genuinely requires the same for his business purpose. But the position is not the same under the provisions of the Delhi Act where the landlord cannot ask for eviction of a tenant from the premises let for commercial use even if the former requires it bona fide for his own business purpose. The landlord may see k eviction of the tenant on other grounds but not on the ground of bona fide requirement for his own business under the Delhi Act. This brings out the difference between the scheme underlying the two Acts and Mr. Sanghi cannot call in aid the decision in Dr. Gopal Dass Verma (supra) in support of his submission. The High Court was not right in its conclusion that the decree was passed in contravention of the provisions of the Act.14. Mr. Sanghi also submits that the decree in this case incorporated a lease for five years and in absence of registration under section 17(1) (d) of the Registration Act the decree is invalid and cannot be acted upon. As already pointed out this objection is untenable in view of the decision of this Court in Girdharilal (supra). The question would turn on the terms of the compromise. After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that "the plaintiff shall be entitled to execute her decree against the defendants". There was therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the-intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alternations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is, therefore, no question of registration of the decree. The submission is devoid of substance. The High Court is, therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration.There is nothing in the M. P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there are sufficient materials to show that the trial court , applied its mind and was satisfied that a valid decree under the M.P. Act could be passed.15. | 1[ds]Having examined the pleadings, the terms of the compromise as well as the statement of counsel of either party recorded by the trial court and the resultant order passed thereafter, we are unable to accede to the submission that the court did not apply its mind to the relevant question that was necessary to be considered at that stage at the time of passing theis true that a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties (see K. K. Chari v. R. N. Seshadri "([1973] 3 S..C.R. 691.). The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant ])as admitted by the compromise. Thus dispensing with further proof, on account of the compromise, the court is to be satisfied about compliance with the statutory requirement on the totally of facts of a particular case bearing in mind the entire circumstances from the stage of pleadings upto the stage when the compromise is effected.When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing court will have to give effect tois significant that in the Del hi Act intention to let separately for use as a residence or for commercial use or for any other purpose is expressly mentioned under section 2(g) thereof. The principle underlying the scheme for letting separately for different uses is reflected in the Second Schedule to the Delhi Act in both Parts A and B (see paras 3 to 5 both in parts A and B). The said differentiation of purpose for separate letting does not find such significant importance in the M.P. Act as has been found by this Court in the Delhiis clear that under the Delhi Act the scheme is significantly different from that of the M.P. Act. The definition of "premises" in the Delhi Act is a pointer. Under the M.P. Act a landlord can seek eviction of a tenant from a non- residential accommodation if he genuinely requires the same for his business purpose. But the position is not the same under the provisions of the Delhi Act where the landlord cannot ask for eviction of a tenant from the premises let for commercial use even if the former requires it bona fide for his own business purpose. The landlord may see k eviction of the tenant on other grounds but not on the ground of bona fide requirement for his own business under the Delhi Act. This brings out the difference between the scheme underlying the two Acts and Mr. Sanghi cannot call in aid the decision in Dr. Gopal Dass Verma (supra) in support of his submission. The High Court was not right in its conclusion that the decree was passed in contravention of the provisions of thealready pointed out this objection is untenable in view of the decision of this Court in Girdharilal (supra). The question would turn on the terms of the compromise. After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that "the plaintiff shall be entitled to execute her decree against the defendants". There was therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the-intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alternations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is, therefore, no question of registration of the decree. The submission is devoid of substance. The High Court is, therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration.There is nothing in the M. P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there are sufficient materials to show that the trial court , applied its mind and was satisfied that a valid decree under the M.P. Act could bep.m. as mesne profits to the appellant within the first week of the month due. Failure to pay mesne profits as aforesaid will enable theto execute the decree without reference to this Court and the stay of the decree will automatically stand vacated. | 1 | 3,965 | 950 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
give effect to it.12. According to Mr. Sanghi when the house was let for non- residential purpose the appellant cannot succeed in ejecting the tenant from the house for a composite purpose of residence as well as business and he submits that the principles laid down in Dr. Gopal Dass Verma (supra) fully support him.In Dr. Gopal Dass Verma (supra) this Court was dealing with the provisions of Delhi &Ajmer Rent Control Act, 1952 (briefly the Delhi Act). Section 2(g) defines premises under that Act thus" Premises means any building or part of a building which is, or is intended to be let, separately for use as a residence or for commercial use or for any other purpose, "We may contrast the definition of accommodation in the M.P. Act with which we are concerned. Under section 3(a) of the M.P. Act, "accommodation" means-(x) any land which is not being used for cultivation,(y) any building or part of a building, and it includes-(1) garden, open land and out houses, if any, appurtenant to such building or part of a building;(2) any furniture supplied by the landlord for us e in such building or part of a building;(3) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, )."13. It is significant that in the Del hi Act intention to let separately for use as a residence or for commercial use or for any other purpose is expressly mentioned under section 2(g) thereof. The principle underlying the scheme for letting separately for different uses is reflected in the Second Schedule to the Delhi Act in both Parts A and B (see paras 3 to 5 both in parts A and B). The said differentiation of purpose for separate letting does not find such significant importance in the M.P. Act as has been found by this Court in the Delhi Act Mr. Sanghi, however, draws our attention to section 4(d) of the M.P. Act which provides that if the tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, that will furnish a ground for eviction under the M. P. Act. He also relies upon s. 6 of the M.P. Act where there is provision for compensation in the case of eviction on the ground mentioned in clause (h) of section 4 in case of non-residential accommodation. Counsel therefore submits that although the word separately is absent in the definition of "accommodation" in the M.P. Act there is no difference whatsoever in the actual intent of the provisions in the M.P. Act to warrant a departure from the principles laid down in Dr. Gopal Dass Verma (supra)We are unable to accept the above submission. It is clear that under the Delhi Act the scheme is significantly different from that of the M.P. Act. The definition of "premises" in the Delhi Act is a pointer. Under the M.P. Act a landlord can seek eviction of a tenant from a non- residential accommodation if he genuinely requires the same for his business purpose. But the position is not the same under the provisions of the Delhi Act where the landlord cannot ask for eviction of a tenant from the premises let for commercial use even if the former requires it bona fide for his own business purpose. The landlord may see k eviction of the tenant on other grounds but not on the ground of bona fide requirement for his own business under the Delhi Act. This brings out the difference between the scheme underlying the two Acts and Mr. Sanghi cannot call in aid the decision in Dr. Gopal Dass Verma (supra) in support of his submission. The High Court was not right in its conclusion that the decree was passed in contravention of the provisions of the Act.14. Mr. Sanghi also submits that the decree in this case incorporated a lease for five years and in absence of registration under section 17(1) (d) of the Registration Act the decree is invalid and cannot be acted upon. As already pointed out this objection is untenable in view of the decision of this Court in Girdharilal (supra). The question would turn on the terms of the compromise. After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that "the plaintiff shall be entitled to execute her decree against the defendants". There was therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the-intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alternations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is, therefore, no question of registration of the decree. The submission is devoid of substance. The High Court is, therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration.There is nothing in the M. P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there are sufficient materials to show that the trial court , applied its mind and was satisfied that a valid decree under the M.P. Act could be passed.15.
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### Explanation:
Having examined the pleadings, the terms of the compromise as well as the statement of counsel of either party recorded by the trial court and the resultant order passed thereafter, we are unable to accede to the submission that the court did not apply its mind to the relevant question that was necessary to be considered at that stage at the time of passing theis true that a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties (see K. K. Chari v. R. N. Seshadri "([1973] 3 S..C.R. 691.). The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant ])as admitted by the compromise. Thus dispensing with further proof, on account of the compromise, the court is to be satisfied about compliance with the statutory requirement on the totally of facts of a particular case bearing in mind the entire circumstances from the stage of pleadings upto the stage when the compromise is effected.When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing court will have to give effect tois significant that in the Del hi Act intention to let separately for use as a residence or for commercial use or for any other purpose is expressly mentioned under section 2(g) thereof. The principle underlying the scheme for letting separately for different uses is reflected in the Second Schedule to the Delhi Act in both Parts A and B (see paras 3 to 5 both in parts A and B). The said differentiation of purpose for separate letting does not find such significant importance in the M.P. Act as has been found by this Court in the Delhiis clear that under the Delhi Act the scheme is significantly different from that of the M.P. Act. The definition of "premises" in the Delhi Act is a pointer. Under the M.P. Act a landlord can seek eviction of a tenant from a non- residential accommodation if he genuinely requires the same for his business purpose. But the position is not the same under the provisions of the Delhi Act where the landlord cannot ask for eviction of a tenant from the premises let for commercial use even if the former requires it bona fide for his own business purpose. The landlord may see k eviction of the tenant on other grounds but not on the ground of bona fide requirement for his own business under the Delhi Act. This brings out the difference between the scheme underlying the two Acts and Mr. Sanghi cannot call in aid the decision in Dr. Gopal Dass Verma (supra) in support of his submission. The High Court was not right in its conclusion that the decree was passed in contravention of the provisions of thealready pointed out this objection is untenable in view of the decision of this Court in Girdharilal (supra). The question would turn on the terms of the compromise. After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that "the plaintiff shall be entitled to execute her decree against the defendants". There was therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the-intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alternations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is, therefore, no question of registration of the decree. The submission is devoid of substance. The High Court is, therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration.There is nothing in the M. P. Act to bar an eviction from a building if a non-residential accommodation is genuinely required not only for non-residential use but also a portion of it bona fide for personal residence. We are clearly of opinion that the compromise decree in this case is a lawful decree of eviction founded on permissible statutory ground and there are sufficient materials to show that the trial court , applied its mind and was satisfied that a valid decree under the M.P. Act could bep.m. as mesne profits to the appellant within the first week of the month due. Failure to pay mesne profits as aforesaid will enable theto execute the decree without reference to this Court and the stay of the decree will automatically stand vacated.
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UNION OF INDIA & ANR Vs. U.A.E.EXCHANGE CENTRE | and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this score. (emphasis supplied) As aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e). 13. The High Court has also examined the matter in the context of explanation to Section 9(1)(i) of the 1961 Act. Prior to enactment of Finance Act, 2003 (32 of 2003), Section 9(1)(i) read thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation.— For the purposes of this clause— (a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India; (b) in the case of a non-resident, no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export; (c) in the case of a non-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India; (d) in the case of a non-resident, being— (1) an individual who is not a citizen of India; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India. ………………….. After the enactment of Finance Act, 2003, explanation 2 came to be inserted after the renumbered explanation 1 to clause (i) of sub- Section (1) of Section 9 with effect from 1.4.2004. The same reads thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation 1.- xxx xxx xxx Explanation 2.– For the removal of doubts, it is hereby declared that business connection shall include any business activity carried out through a person who, acting on behalf of the non-resident,- (a) has and habitually exercises in India, an authority to conclude contact on behalf of the non- resident, unless his activities are limited to the purchase of goods or merchandise for the non- resident; or (b) has no such authority, but habitually maintains in India a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the non-resident; or (c) habitually secures orders in India, mainly or wholly for the non-resident or that non-resident and other non-residents controlling, controlled by, or subject to the same common control, as that non- resident: Provided that such business connection shall not include any business activity carried out through a broker, general commission agent or any other agent having an independent status, if such broker, general commission agent or any other agent having an independent status is acting in the ordinary course of his business: Provided further that where such broker, general commission agent or any other agent works mainly or wholly on behalf of a non-resident (hereafter in this proviso referred to as the principal non- resident) or on behalf of such non-resident and other non-residents which are controlled by the principal non-resident or have a controlling interest in the principle non-resident or are subject to the same common control as the principal non- resident, he shall not be deemed to be a broker, general commission agent or an agent of an independent status. The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA. 14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto. | 0[ds]Having regard to the nature of activities carried on by the respondent-assessee, as held by the Authority, it would appear that the respondent was engaged in business and had business connections, for which, by virtue of deeming provision and the sweep of Sections 2(24), 4 and 5 read with Section 9 of the 1961 Act including the exposition in Anglo-French Textile Co. Ltd. (supra) and R.D. Aggarwal & Company (supra), it would be a case of income deemed to accrue or arise in India to the respondent8. However, in the present case, the matter in issue will have to be answered on the basis of the stipulations in DTAA notified in exercise of powers conferred under Section 90 of the 1961 Act. This position is no more res integra in view of the dictum in Azadi Bachao Andolan (supra)In view of this exposition, which squarely applies to the fact situation of the present case, we must answer the question under consideration in light of the purport of provisions in DTAA, which has been executed by the Government of India and the Government of UAE, and has come into force consequent to publication vide notification dated 18.11.1993Keeping in view the finding recorded by the High Court, we may proceed on the basis that the respondent-assessee had a fixed place of business through which the business of the respondent was being wholly or partly carried on. That, however, would not be conclusive until a further finding is recorded that the respondent had a PE situated in India, so as to attract Article 7 dealing with business profits to become taxable in India, to the extent attributable to the PE of the respondent in India. For that, we may have to revert back to Article 5, which deals with and defines the Permanent Establishment (PE). A fixed place of business through which the business of an enterprise is wholly or partly carried on is regarded as a PE. The term Permanent Establishment (PE) would include the specified places referred to in clause 2 of Article 5. It is not in dispute that the place from where the activities are carried on by the respondent in India is a liaison office and would, therefore, be covered by the term PE in Article 5(2). However, Article 5(3) of the DTAA opens with a non- obstante clause and also contains a deeming provision. It predicates that notwithstanding the preceding provisions of the concerned Article, which would mean clauses 1 and 2 of Article 5, it would still not be a PE, if any of the clauses in Article 5(3) are applicable. For that, the functional test regarding the activity in question would be essential. The High Court has opined that the respondent was carrying on stated activities in the fixed place of business in India of a preparatory or auxiliary characterThe expression business connection can be discerned from Section 9(1), as also, the meaning of expression business activity. We will advert to those provisions a little later and for the time being, assume that the stated activities of the respondent are business activities. However, since the stated activities of the liaison offices of the respondent in India are of preparatory or auxiliary character, the same would fall within the excepted category under Article 5(3)(e) of the DTAA. Resultantly, it cannot be regarded as a PE within the sweep of Article 7 of DTAA. The expression preparatory is not defined in the 1961 Act or the DTAAThe crucial activities in the present case are of downloading particulars of remittances through electronic media and then printing cheques/drafts drawn on the banks in India, which, in turn, are couriered or dispatched to the beneficiaries in India, in accordance with the instructions of the NRI remitter. While doing so, the liaison office of the respondent in India remains connected with its main server in UAE and the information residing thereat is accessed by the liaison office in India for the purpose of remittance of funds to the beneficiaries in India by the NRI remitters. These are combination of virtual and physical activities unlike the virtual activity of funds being remitted by telegraphic transfer through banking channels. As regards the latter, it is not the case of the Department that the same would be covered and amenable to tax liability by virtue of deeming provision in the 1961 Act9. While answering the question as towhether the activity in question can be termed as other than that of preparatory or auxiliary character,we need to keep in mind the limited permission given by the RBI to the respondent under Section 29(1)(a) of the 1973 Act, on 24.9.1996. From paragraph 2 of the stated permission, it is evident that the RBI had agreed for establishing a liaison office of the respondent at Cochin, initially for a period of three years to enable the respondent to (i) respond quickly and economically to enquiries from correspondent banks with regard to suspected fraudulent drafts; (ii) undertake reconciliation of bank accounts held in India; (iii) act as a communication centre receiving computer (via modem) advices of mail transfer T.T. stop payments messages, payment details etc., originating from respondents several branches in UAE and transmitting to its Indian correspondent banks; (iv) printing Indian Rupee drafts with facsimile signature from the Head Office and counter signature by the authorised signatory of the Office at Cochin; and (v) following up with the Indian correspondent banks. These are the limited activities which the respondent has been permitted to carry on within India. This permission does not allow the respondent-assessee to enter into a contract with anyone in India, but only to provide service of delivery of cheques/drafts drawn on the banks in India. Notably, the permitted activities are required to be carried out by the respondent subject to conditions specified in clause 3 of the permission, which includes not to render any consultancy or any other service, directly or indirectly, with or without any consideration and further that the liaison office in India shall not borrow or lend any money from or to any person in India without prior permission of RBI. The conditions make it amply clear that the office in India will not undertake any other activity of trading, commercial or industrial, nor shall it enter into any business contracts in its own name without prior permission of the RBI. The liaison office of the respondent in India cannot even charge commission/fee or receive any remuneration or income in respect of the activities undertaken by the liaison office in India. From the onerous stipulations specified by the RBI, it could be safely concluded, as opined by the High Court, that the activities in question of the liaison office(s) of the respondent in India are circumscribed by the permission given by the RBI and are in the nature of preparatory or auxiliary character. That finding reached by the High Court is unexceptionableInsofar as the nature of activities carried on by the respondent through the liaison office in India, as permitted by the RBI, we have upheld the conclusion of the High Court that the same were in the nature of preparatory or auxiliary character and, therefore, covered by Article 5(3)(e). As a result, the fixed place used by the respondent as liaison office in India, would not qualify the definition of PE in terms of Articles 5(1) and 5(2) of the DTAA on account of non-obstante and deeming clause in Article 5(3) of the DTAA11. Having said thus, it must follow that the respondent was not carrying on any business activity in India as such, but only dispensing with the remittances by downloading information from the main server of respondent in UAE and printing cheques/drafts drawn on the banks in India as per the instructions given by the NRI remitters in UAE. The transaction(s) had completed with the remitters in UAE, and no charges towards fee/commission could be collected by the liaison office in India in that regard. To put it differently, no income as specified in Section 2(24) of the 1961 Act is earned by the liaison office in India and moreso because, the liaison office is not a PE in terms of Article 5 of DTAA (as it is only carrying on activity of a preparatory or auxiliary character). The concomitant is - no tax can be levied or collected from the liaison office of the respondent in India in respect of the primary business activities consummated by the respondent in UAE. The activities carried on by the liaison office of the respondent in India as permitted by the RBI, clearly demonstrate that the respondent must steer away from engaging in any primary business activity and in establishing business connection as such. It can carry on activities of preparatory or auxiliary nature only. In that case, the deeming provisions in Sections 5 and 9 of the 1961 Act can have no bearing whatsoeverAs aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e)The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto. | 0 | 12,635 | 1,896 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this score. (emphasis supplied) As aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e). 13. The High Court has also examined the matter in the context of explanation to Section 9(1)(i) of the 1961 Act. Prior to enactment of Finance Act, 2003 (32 of 2003), Section 9(1)(i) read thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation.— For the purposes of this clause— (a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India; (b) in the case of a non-resident, no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export; (c) in the case of a non-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India; (d) in the case of a non-resident, being— (1) an individual who is not a citizen of India; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India. ………………….. After the enactment of Finance Act, 2003, explanation 2 came to be inserted after the renumbered explanation 1 to clause (i) of sub- Section (1) of Section 9 with effect from 1.4.2004. The same reads thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation 1.- xxx xxx xxx Explanation 2.– For the removal of doubts, it is hereby declared that business connection shall include any business activity carried out through a person who, acting on behalf of the non-resident,- (a) has and habitually exercises in India, an authority to conclude contact on behalf of the non- resident, unless his activities are limited to the purchase of goods or merchandise for the non- resident; or (b) has no such authority, but habitually maintains in India a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the non-resident; or (c) habitually secures orders in India, mainly or wholly for the non-resident or that non-resident and other non-residents controlling, controlled by, or subject to the same common control, as that non- resident: Provided that such business connection shall not include any business activity carried out through a broker, general commission agent or any other agent having an independent status, if such broker, general commission agent or any other agent having an independent status is acting in the ordinary course of his business: Provided further that where such broker, general commission agent or any other agent works mainly or wholly on behalf of a non-resident (hereafter in this proviso referred to as the principal non- resident) or on behalf of such non-resident and other non-residents which are controlled by the principal non-resident or have a controlling interest in the principle non-resident or are subject to the same common control as the principal non- resident, he shall not be deemed to be a broker, general commission agent or an agent of an independent status. The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA. 14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto.
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by the NRI remitters. These are combination of virtual and physical activities unlike the virtual activity of funds being remitted by telegraphic transfer through banking channels. As regards the latter, it is not the case of the Department that the same would be covered and amenable to tax liability by virtue of deeming provision in the 1961 Act9. While answering the question as towhether the activity in question can be termed as other than that of preparatory or auxiliary character,we need to keep in mind the limited permission given by the RBI to the respondent under Section 29(1)(a) of the 1973 Act, on 24.9.1996. From paragraph 2 of the stated permission, it is evident that the RBI had agreed for establishing a liaison office of the respondent at Cochin, initially for a period of three years to enable the respondent to (i) respond quickly and economically to enquiries from correspondent banks with regard to suspected fraudulent drafts; (ii) undertake reconciliation of bank accounts held in India; (iii) act as a communication centre receiving computer (via modem) advices of mail transfer T.T. stop payments messages, payment details etc., originating from respondents several branches in UAE and transmitting to its Indian correspondent banks; (iv) printing Indian Rupee drafts with facsimile signature from the Head Office and counter signature by the authorised signatory of the Office at Cochin; and (v) following up with the Indian correspondent banks. These are the limited activities which the respondent has been permitted to carry on within India. This permission does not allow the respondent-assessee to enter into a contract with anyone in India, but only to provide service of delivery of cheques/drafts drawn on the banks in India. Notably, the permitted activities are required to be carried out by the respondent subject to conditions specified in clause 3 of the permission, which includes not to render any consultancy or any other service, directly or indirectly, with or without any consideration and further that the liaison office in India shall not borrow or lend any money from or to any person in India without prior permission of RBI. The conditions make it amply clear that the office in India will not undertake any other activity of trading, commercial or industrial, nor shall it enter into any business contracts in its own name without prior permission of the RBI. The liaison office of the respondent in India cannot even charge commission/fee or receive any remuneration or income in respect of the activities undertaken by the liaison office in India. From the onerous stipulations specified by the RBI, it could be safely concluded, as opined by the High Court, that the activities in question of the liaison office(s) of the respondent in India are circumscribed by the permission given by the RBI and are in the nature of preparatory or auxiliary character. That finding reached by the High Court is unexceptionableInsofar as the nature of activities carried on by the respondent through the liaison office in India, as permitted by the RBI, we have upheld the conclusion of the High Court that the same were in the nature of preparatory or auxiliary character and, therefore, covered by Article 5(3)(e). As a result, the fixed place used by the respondent as liaison office in India, would not qualify the definition of PE in terms of Articles 5(1) and 5(2) of the DTAA on account of non-obstante and deeming clause in Article 5(3) of the DTAA11. Having said thus, it must follow that the respondent was not carrying on any business activity in India as such, but only dispensing with the remittances by downloading information from the main server of respondent in UAE and printing cheques/drafts drawn on the banks in India as per the instructions given by the NRI remitters in UAE. The transaction(s) had completed with the remitters in UAE, and no charges towards fee/commission could be collected by the liaison office in India in that regard. To put it differently, no income as specified in Section 2(24) of the 1961 Act is earned by the liaison office in India and moreso because, the liaison office is not a PE in terms of Article 5 of DTAA (as it is only carrying on activity of a preparatory or auxiliary character). The concomitant is - no tax can be levied or collected from the liaison office of the respondent in India in respect of the primary business activities consummated by the respondent in UAE. The activities carried on by the liaison office of the respondent in India as permitted by the RBI, clearly demonstrate that the respondent must steer away from engaging in any primary business activity and in establishing business connection as such. It can carry on activities of preparatory or auxiliary nature only. In that case, the deeming provisions in Sections 5 and 9 of the 1961 Act can have no bearing whatsoeverAs aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e)The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto.
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Tarulata Syam And Ors Vs. Commissioner Of Income-Tax, West Bengal | not money-lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus, all the factual conditions for raising the statutory fiction created by sections 2(6A)(e) and 12(1B) appeared to have been satisfied in the instant case." 15. Mr. Sharma, however, contends that in order to attract the statutory fiction one other essential condition is that the loan or advance must be outstanding at the end of the previous year, and if the loan had ceased to exist owing to repayment or otherwise before the end of the year--as in the present case--the fiction cannot be invoked. In this connection, counsel has again referred to the last limb of section 108(1) of the Commonwealth Income-tax Act according to which the payment to a shareholder by way of advance or loan is to be treated as a dividend paid by the company on the last day of the year of income of the company in which the payment is madeIt is urged that the principle in the last limb of sub-section (1) of section 108 of the Commonwealth Act should also be read into the Indian statute. It is maintained that the omission of such words from sections 2(6A)(e) and 12(1B) does not show that the intendment of the Indian legislature was different. According to the counsel what is explicit in section 108(1) of the Commonwealth Act, is implicit in sections 2(6A)(e) and 12(1B) and the general scheme of the Act which requires that the assessment is to be made on the basis of total income of the whole previous year. Such a view, concludes Mr. Sharma, would also be in consonance with reason and justice 16. We have given anxious thought to the persuasive arguments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the language of sections 2(6A)(e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that"...... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax: There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be 17. In our opinion, the Indian legislature has deliberately omitted to use in sections 2(6A)(e) and 12(1B) words analogous to those in the last limb of sub-section (1) of section 108 of the Commonwealth Act. When sections 2(6A)(e) and 12(1B) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in section 108 of the Commonwealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in section 108(1) of the Common-wealth Act. So far as the last limb of section 108(1) is concerned our Parliament imported only a very restricted version, and incorporated the same as the " fifth condition " in sub-section (1B) of section 12 to the effect, that the " payment deemed as dividend shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remains outstanding on the last day of such previous year ". The word " such " prefixed to the " previous year " shows that the application of this clause is confined to the assessment year ending on March 31, 1956. In the instant case we are not concerned with the assessment year ending March 31, 1956. This highlights the fact that the legislature has deliberately not made the subsistence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a pre-requisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a " dividend " if the other four conditions factually exist, to the extent of the accumulated profits possessed by the companyAt the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on lot which the assessment is based (section 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received, whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, " income from other sources ", arises. The charge being on accrual or receipt the statutory fiction created by section 2(6A)(e) and section 12(1B) would come into operation at the time of the payment by way of advance or loan, provided the other conditions are satisfied 18. We do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case 19. | 0[ds]These provisions seem to have been adapted with alterations from section 108 of the Commonwealth Income-tax Assessment Act in force in AustraliaIt will be seen that under section 108(1) formation of " the opinion of the Commissioner " is the sine qua non for bringing this provision into operation. It has been held by the Australian Board of Review that the mere fact that a shareholder in a private company has become indebted to it does not justify the formation of the opinion by the Commissioner such as is indicated in sub-section (1) of section 108" There must be something that goes beyond a mere debt automatically arising upon a taking of accounts and which points to a subterfuge whereby a payment which, upon examination, is found to relate to the income of the company and to represent the distribution thereof, is made to appear to be a loan or advance."From the above discussion it emerges clear that the fiction created by section 2(6A)(e) read with section 12(1B) of the Act is inexorably attracted as soon as all the conditions necessary for its application exist in a caseWe have given anxious thought to the persuasive arguments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the language of sections 2(6A)(e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretationTo us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statuteThere are five conditions which must be satisfied before section 12(1B) can be invoked against a shareholder. The first condition is that the company in question must be one in which the public are not substantially interested within the meaning of section 23A as it stood in the year in which the loan was advanced. The second condition is that the borrower must be a shareholder at the date when the loan was advanced ; it is immaterial what the extent of his shareholding is. The third condition is that the loan advanced to a shareholder by such a company can be deemed to be dividend only to the extent to which it is shown that the company possessed accumulated profit at the date of the loan. This is an important limit prescribed by the relevant section. The fourth condition is that the loan must not have been advanced by the company in the ordinary course of its business. In other words, this provision would not apply to cases where the company which advances a loan to its shareholder carries on the business of money-lending itself ; and the last condition is that the loan must have remained outstanding at the commencement of the shareholders previous year in relation to the assessment year 1955-56. (Emphasis supplied)The first four conditions factually exist in the instant case. The last condition is not applicable because it was a transitory provision applicable to the assessment year 1955-56 only, while we are concerned with the assessment year 1957-58, and the previous year is the calendar year 1956. There is no dispute that the company is a controlled (private limited) company in which the public are not substantially interested within the meaning of section 23A. Further, the assessee is admittedly a shareholder and managing director of that company. It is also beyond controversy that at all material times, the company possessed " accumulated profits " in excess of the amount which the assessee-shareholder was paid during the previous year. The Income-tax Officer found that on January 1, 1956, the accumulated profits of the company amounted to Rs. 6, 83, 005 while from January 11, 1956, to November 12, 1956, the assessee received in cash from time to time from the company payments aggregating Rs. 4, 97, 442. After deducting the opening credit balance and some other items credited to his amount, the Income-tax Officer found that in the previous year the assessee-shareholder had received a net payment of Rs. 2, 72, 703 by way of loan or advance from the company. The companys business is not money-lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus, all the factual conditions for raising the statutory fiction created by sections 2(6A)(e) and 12(1B) appeared to have been satisfied in the instant caseIn our opinion, the Indian legislature has deliberately omitted to use in sections 2(6A)(e) and 12(1B) words analogous to those in the last limb of sub-section (1) of section 108 of the Commonwealth Act. When sections 2(6A)(e) and 12(1B) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in section 108 of the Commonwealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in section 108(1) of the Common-wealth Act. So far as the last limb of section 108(1) is concerned our Parliament imported only a very restricted version, and incorporated the same as the " fifth condition " in sub-section (1B) of section 12 to the effect, that the " payment deemed as dividend shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remains outstanding on the last day of such previous year ". The word " such " prefixed to the " previous year " shows that the application of this clause is confined to the assessment year ending on March 31, 1956. In the instant case we are not concerned with the assessment year ending March 31, 1956. This highlights the fact that the legislature has deliberately not made the subsistence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a pre-requisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a " dividend " if the other four conditions factually exist, to the extent of the accumulated profits possessed by the companyAt the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on lot which the assessment is based (section 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received, whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, " income from other sources ", arises. The charge being on accrual or receipt the statutory fiction created by section 2(6A)(e) and section 12(1B) would come into operation at the time of the payment by way of advance or loan, provided the other conditions are satisfiedWe do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case | 0 | 6,493 | 1,424 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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not money-lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus, all the factual conditions for raising the statutory fiction created by sections 2(6A)(e) and 12(1B) appeared to have been satisfied in the instant case." 15. Mr. Sharma, however, contends that in order to attract the statutory fiction one other essential condition is that the loan or advance must be outstanding at the end of the previous year, and if the loan had ceased to exist owing to repayment or otherwise before the end of the year--as in the present case--the fiction cannot be invoked. In this connection, counsel has again referred to the last limb of section 108(1) of the Commonwealth Income-tax Act according to which the payment to a shareholder by way of advance or loan is to be treated as a dividend paid by the company on the last day of the year of income of the company in which the payment is madeIt is urged that the principle in the last limb of sub-section (1) of section 108 of the Commonwealth Act should also be read into the Indian statute. It is maintained that the omission of such words from sections 2(6A)(e) and 12(1B) does not show that the intendment of the Indian legislature was different. According to the counsel what is explicit in section 108(1) of the Commonwealth Act, is implicit in sections 2(6A)(e) and 12(1B) and the general scheme of the Act which requires that the assessment is to be made on the basis of total income of the whole previous year. Such a view, concludes Mr. Sharma, would also be in consonance with reason and justice 16. We have given anxious thought to the persuasive arguments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the language of sections 2(6A)(e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that"...... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax: There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be 17. In our opinion, the Indian legislature has deliberately omitted to use in sections 2(6A)(e) and 12(1B) words analogous to those in the last limb of sub-section (1) of section 108 of the Commonwealth Act. When sections 2(6A)(e) and 12(1B) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in section 108 of the Commonwealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in section 108(1) of the Common-wealth Act. So far as the last limb of section 108(1) is concerned our Parliament imported only a very restricted version, and incorporated the same as the " fifth condition " in sub-section (1B) of section 12 to the effect, that the " payment deemed as dividend shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remains outstanding on the last day of such previous year ". The word " such " prefixed to the " previous year " shows that the application of this clause is confined to the assessment year ending on March 31, 1956. In the instant case we are not concerned with the assessment year ending March 31, 1956. This highlights the fact that the legislature has deliberately not made the subsistence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a pre-requisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a " dividend " if the other four conditions factually exist, to the extent of the accumulated profits possessed by the companyAt the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on lot which the assessment is based (section 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received, whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, " income from other sources ", arises. The charge being on accrual or receipt the statutory fiction created by section 2(6A)(e) and section 12(1B) would come into operation at the time of the payment by way of advance or loan, provided the other conditions are satisfied 18. We do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case 19.
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not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretationTo us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statuteThere are five conditions which must be satisfied before section 12(1B) can be invoked against a shareholder. The first condition is that the company in question must be one in which the public are not substantially interested within the meaning of section 23A as it stood in the year in which the loan was advanced. The second condition is that the borrower must be a shareholder at the date when the loan was advanced ; it is immaterial what the extent of his shareholding is. The third condition is that the loan advanced to a shareholder by such a company can be deemed to be dividend only to the extent to which it is shown that the company possessed accumulated profit at the date of the loan. This is an important limit prescribed by the relevant section. The fourth condition is that the loan must not have been advanced by the company in the ordinary course of its business. In other words, this provision would not apply to cases where the company which advances a loan to its shareholder carries on the business of money-lending itself ; and the last condition is that the loan must have remained outstanding at the commencement of the shareholders previous year in relation to the assessment year 1955-56. (Emphasis supplied)The first four conditions factually exist in the instant case. The last condition is not applicable because it was a transitory provision applicable to the assessment year 1955-56 only, while we are concerned with the assessment year 1957-58, and the previous year is the calendar year 1956. There is no dispute that the company is a controlled (private limited) company in which the public are not substantially interested within the meaning of section 23A. Further, the assessee is admittedly a shareholder and managing director of that company. It is also beyond controversy that at all material times, the company possessed " accumulated profits " in excess of the amount which the assessee-shareholder was paid during the previous year. The Income-tax Officer found that on January 1, 1956, the accumulated profits of the company amounted to Rs. 6, 83, 005 while from January 11, 1956, to November 12, 1956, the assessee received in cash from time to time from the company payments aggregating Rs. 4, 97, 442. After deducting the opening credit balance and some other items credited to his amount, the Income-tax Officer found that in the previous year the assessee-shareholder had received a net payment of Rs. 2, 72, 703 by way of loan or advance from the company. The companys business is not money-lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus, all the factual conditions for raising the statutory fiction created by sections 2(6A)(e) and 12(1B) appeared to have been satisfied in the instant caseIn our opinion, the Indian legislature has deliberately omitted to use in sections 2(6A)(e) and 12(1B) words analogous to those in the last limb of sub-section (1) of section 108 of the Commonwealth Act. When sections 2(6A)(e) and 12(1B) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in section 108 of the Commonwealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in section 108(1) of the Common-wealth Act. So far as the last limb of section 108(1) is concerned our Parliament imported only a very restricted version, and incorporated the same as the " fifth condition " in sub-section (1B) of section 12 to the effect, that the " payment deemed as dividend shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remains outstanding on the last day of such previous year ". The word " such " prefixed to the " previous year " shows that the application of this clause is confined to the assessment year ending on March 31, 1956. In the instant case we are not concerned with the assessment year ending March 31, 1956. This highlights the fact that the legislature has deliberately not made the subsistence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a pre-requisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a " dividend " if the other four conditions factually exist, to the extent of the accumulated profits possessed by the companyAt the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on lot which the assessment is based (section 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received, whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, " income from other sources ", arises. The charge being on accrual or receipt the statutory fiction created by section 2(6A)(e) and section 12(1B) would come into operation at the time of the payment by way of advance or loan, provided the other conditions are satisfiedWe do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case
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Ajay Maken Vs. Adesh Kumar Gupta | election petition and that it should have been filed in court along with copies thereof for service upon the respondents to the election petition. Whereas 15 copies thereof were filed for service upon the respondents, the video cassette itself was not filed. The election petition as filed was, therefore, not complete.” [Emphasis supplied] and held that in the absence of any particulars in the body of the election petition, the videograph becomes an integral part of the election petition and failure to attach a copy to the election petition is fatal to the election petition. Once again, a case where the principle laid down in Sahodrabai case is applied to the facts. 54. In Sahodrabai case, the specific allegation in the election petition was that circulation of the annexure in issue by the returned candidate tantamounted to the commission of corrupt practice described in Section 123(3) of the Act, because of its content. I must hasten to add whether the content of the said annexure, would fall within the definition of corrupt practice contained under Section 123(3) was not examined by this Court as it was not called upon. This Court assumed the correctness of the allegation for the limited purpose of examining the issue before it. Even in such a case, this Court held since the content, in its entirety, of the annexure was fully described in the body of the election petition, non-supply of such an annexure is not fatal - on the ground, it is violative of Section 81(3) of the Act. 55. The purpose of the stipulation under Section 81(3) is to put the returned candidate on notice of the various allegations made against him in order to enable him to defend himself effectively in the election petition – a stipulation flowing from the requirement of one of the basic postulates of the principles of natural justice. Once the content of the annexure, the whole of which pertains to the commission of the corrupt practice alleged in the election petition, is described in the body of the election petition with sufficient clarity, the returned candidate cannot complain that he was denied a reasonable opportunity of defending himself or that he was taken by surprise at the trial. Therefore, non-supply of the annexure in such cases was held to be immaterial and the copy of the election petition supplied to the returned candidate sans the annexure would still be a true copy within the meaning of the expression under Section 81(3). It is in this context the Court observed that the annexure became part of the election petition.56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition within the meaning of the expression under Section 82(b).58. Obviously the allegations must be MADE by the election petitioner. In a case like the one on hand where the election petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexed to the election petition – of which the election petitioner is not the author - can it be said that the allegations are MADE in the petition ?59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored by the election petitioner; secondly, in the entire body of the election petition there is no reference to any corrupt practice committed by Vijay Goel. Making such an allegation against Vijay Goel would in no way help the election petitioner to obtain the relief sought by him in the election petition. Even at the cost of the repetition I must state that the election petition does not seek a further declaration contemplated under Section 84 of the Act. As rightly, argued by Shri Ranjit Kumar, the purpose of the annexure is only to derive support to the allegation of the commission of corrupt practice alleged against the appellant only. Therefore, only that much of the content of the annexure as is relevant to the allegations made in the election petition proper must be considered to have become integral part of the election petition.60. To stretch the principle laid down in Sahodrabai case, to say, that an annexure becomes an integral part of the election petition for all purposes and, therefore, hold that the allegations made against Vijay Goel in the annexure by somebody other than the election petitioner would become allegations MADE in the election petition, would lead to absurd results; that is what exactly sought to be done by the appellant herein. I reject the submission.61. In view of my above conclusion, I do not wish to examine the purport and interpretation of Section 82(b). I must also place it on record that we gave our anxious consideration to the four judgments i.e., Murarka Radhey Shyam Ram Kumar case, Satya Narain case, Rajendra Singh case and Chandrakanth Uttam Chodankar case, which dealt with the interpretation of Section 82(b) and I am of the prima facie opinion that those judgments may require reconsideration in an appropriate case. Since, the same is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions. | 0[ds]16. A reading of the above paragraphs leaves us with the impression that the emphasis of the paragraphs is on the belief of the appellant that the election petition is a proxy litigation undertaken by the election petitioner on behalf of the unsuccessful BJP candidate. It is only in the lastextracted above, a cryptic legal objection is raised that in view of the fact thatof the election petition not only contains allegations of commission of corrupt practice by the appellant herein, but also by Vijay Goel (BJP candidate). In view of the requirement of Section 82(b) of the Act, Vijay Goel must also have been made a respondentto the electionpetition and failure to so implead is fatalNo doubt, Section 82(b) on a plain reading or on the principle of literal construction, seems to require that all the candidates against whom allegations of commission of corrupt practice are MADE IN THE PETITION must be made parties / respondentsThe first factor is the nature of the relief sought by the petitioner. Where a further declaration as contemplated under section 101 is sought, the petitioner is bound to make all the contesting candidates parties respondentsto the electionWhere no such declaration is sought, the section stipulates that it is enough to make all the returned candidates at the election, partiesto the electionThe employment of the expressionis obviously meant to cover disputes relating to elections to Rajya Sabha or Legislative Councils where more than one candidate is declared elected at the same election.39. The second factor is the ground on which declaration of nullity of the election of the returned candidate is sought. It must be remembered that the election of any returned candidate can be questioned on various grounds specified under section 100(1) of the Act, such as, lack of qualification or disqualification on the part of the candidate, the commission of corrupt practices by the returned candidate or his election agent etc. or the improper rejection of the nomination of any candidate at the election etc.40. The following propositions emerge from the above analysis. An election to the Parliament or the State Legislature can be called in question only in accordance with the provisions of the Act. Such a question can be raised only before the High Court. The High Court, in an election dispute, can declare the election of the returned candidate to be void. It may also give a further declaration in an appropriate case and subject to compliance with the procedural requirements that either the election petitioner or any other candidate at the questioned election, has been duly elected. The first of the abovementioned declarations can be made only on one or some of the various grounds enumerated under Section 100 of the Act.41. In the present case, the relief sought by the election petitioner is only the declaration of nullity of the election of the appellant herein on the ground of commission of corrupt practices, but a further declaration contemplated under Section 84 read with Section 101 of the Act is not sought. Therefore, I examine the relevant provisions. Section 100 prescribes that if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of either the returned candidate or his election agent,The question of proof of the commission of a corrupt practice arises only if there is an appropriate pleading in that regard in the election petition. I have already noticed that Section 83 stipulates that an election petition, which contains allegations of corrupt practice, must contain full particulars of thealleged to have committed a corrupt practice. I am of the opinion that the Legislature chose to use the expression PARTIES for the reason that there are various categories of persons, who are capable of committing a corrupt practice in connection with the election of a returned candidate(i) the returned candidate; or (ii) his election agent, or (iii) any other person with the consent of either the returned candidate or his election agent; or (iv) any other agent, as explained earlier. The difference in the language of Section 82 and 83(1)(b), in my opinion, is significant. While Section 82 speaks of candidates, Section 83(1)(b) speaks of parties.From the above, it can be seen that two propositions of law are settled by this Court. Firstly, when an election petition is accompanied by annexures, whose content is completely described in the election petition, failure to serve a copy of such an annexure along with the copy of the election petition on a respondentto the electionpetition does not render the copy served on the respondent anything other than a true copy of the election petition. Secondly, even in a case where the content of the annexure is not fully described in the election petition, theof such annexure along with the copy of the election petition to the respondent does not violate the mandate of Section 81(3) in those cases where annexure is only sought to be used as evidence of some allegation contained in the election petition.petition.56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition within the meaning of the expression under Section 82(b).58. Obviously the allegations must be MADE by the election petitioner. In a case like the one on hand where the election petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexedto the electionpetition – of which the election petitioner is not the authorcan it be said that the allegations are MADE in the petition ?59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored by the election petitioner; secondly, in the entire body of the election petition there is no reference to any corrupt practice committed by Vijay Goel. Making such an allegation against Vijay Goel would in no way help the election petitioner to obtain the relief sought by him in the election petition. Even at the cost of the repetition I must state that the election petition does not seek a further declaration contemplated under Section 84 of the Act. As rightly, argued by Shri Ranjit Kumar, the purpose of the annexure is only to derive support to the allegation of the commission of corrupt practice alleged against the appellant only. Therefore, only that much of the content of the annexure as is relevant to the allegations made in the election petition proper must be considered to have become integral part of the election petition.60. To stretch the principle laid down in Sahodrabai case, to say, that an annexure becomes an integral part of the election petition for all purposes and, therefore, hold that the allegations made against Vijay Goel in the annexure by somebody other than the election petitioner would become allegations MADE in the election petition, would lead to absurd results; that is what exactly sought to be done by the appellant herein. I reject the submission.61. In view of my above conclusion, I do not wish to examine the purport and interpretation of Section 82(b). I must also place it on record that we gave our anxious consideration to the four judgments i.e., Murarka Radhey Shyam Ram Kumar case, Satya Narain case, Rajendra Singh case and Chandrakanth Uttam Chodankar case, which dealt with the interpretation of Section 82(b) and I am of the prima facie opinion that those judgments may require reconsideration in an appropriate case. Since, the same is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions. | 0 | 10,277 | 1,570 | ### Instruction:
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election petition and that it should have been filed in court along with copies thereof for service upon the respondents to the election petition. Whereas 15 copies thereof were filed for service upon the respondents, the video cassette itself was not filed. The election petition as filed was, therefore, not complete.” [Emphasis supplied] and held that in the absence of any particulars in the body of the election petition, the videograph becomes an integral part of the election petition and failure to attach a copy to the election petition is fatal to the election petition. Once again, a case where the principle laid down in Sahodrabai case is applied to the facts. 54. In Sahodrabai case, the specific allegation in the election petition was that circulation of the annexure in issue by the returned candidate tantamounted to the commission of corrupt practice described in Section 123(3) of the Act, because of its content. I must hasten to add whether the content of the said annexure, would fall within the definition of corrupt practice contained under Section 123(3) was not examined by this Court as it was not called upon. This Court assumed the correctness of the allegation for the limited purpose of examining the issue before it. Even in such a case, this Court held since the content, in its entirety, of the annexure was fully described in the body of the election petition, non-supply of such an annexure is not fatal - on the ground, it is violative of Section 81(3) of the Act. 55. The purpose of the stipulation under Section 81(3) is to put the returned candidate on notice of the various allegations made against him in order to enable him to defend himself effectively in the election petition – a stipulation flowing from the requirement of one of the basic postulates of the principles of natural justice. Once the content of the annexure, the whole of which pertains to the commission of the corrupt practice alleged in the election petition, is described in the body of the election petition with sufficient clarity, the returned candidate cannot complain that he was denied a reasonable opportunity of defending himself or that he was taken by surprise at the trial. Therefore, non-supply of the annexure in such cases was held to be immaterial and the copy of the election petition supplied to the returned candidate sans the annexure would still be a true copy within the meaning of the expression under Section 81(3). It is in this context the Court observed that the annexure became part of the election petition.56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition within the meaning of the expression under Section 82(b).58. Obviously the allegations must be MADE by the election petitioner. In a case like the one on hand where the election petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexed to the election petition – of which the election petitioner is not the author - can it be said that the allegations are MADE in the petition ?59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored by the election petitioner; secondly, in the entire body of the election petition there is no reference to any corrupt practice committed by Vijay Goel. Making such an allegation against Vijay Goel would in no way help the election petitioner to obtain the relief sought by him in the election petition. Even at the cost of the repetition I must state that the election petition does not seek a further declaration contemplated under Section 84 of the Act. As rightly, argued by Shri Ranjit Kumar, the purpose of the annexure is only to derive support to the allegation of the commission of corrupt practice alleged against the appellant only. Therefore, only that much of the content of the annexure as is relevant to the allegations made in the election petition proper must be considered to have become integral part of the election petition.60. To stretch the principle laid down in Sahodrabai case, to say, that an annexure becomes an integral part of the election petition for all purposes and, therefore, hold that the allegations made against Vijay Goel in the annexure by somebody other than the election petitioner would become allegations MADE in the election petition, would lead to absurd results; that is what exactly sought to be done by the appellant herein. I reject the submission.61. In view of my above conclusion, I do not wish to examine the purport and interpretation of Section 82(b). I must also place it on record that we gave our anxious consideration to the four judgments i.e., Murarka Radhey Shyam Ram Kumar case, Satya Narain case, Rajendra Singh case and Chandrakanth Uttam Chodankar case, which dealt with the interpretation of Section 82(b) and I am of the prima facie opinion that those judgments may require reconsideration in an appropriate case. Since, the same is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions.
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requirements that either the election petitioner or any other candidate at the questioned election, has been duly elected. The first of the abovementioned declarations can be made only on one or some of the various grounds enumerated under Section 100 of the Act.41. In the present case, the relief sought by the election petitioner is only the declaration of nullity of the election of the appellant herein on the ground of commission of corrupt practices, but a further declaration contemplated under Section 84 read with Section 101 of the Act is not sought. Therefore, I examine the relevant provisions. Section 100 prescribes that if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of either the returned candidate or his election agent,The question of proof of the commission of a corrupt practice arises only if there is an appropriate pleading in that regard in the election petition. I have already noticed that Section 83 stipulates that an election petition, which contains allegations of corrupt practice, must contain full particulars of thealleged to have committed a corrupt practice. I am of the opinion that the Legislature chose to use the expression PARTIES for the reason that there are various categories of persons, who are capable of committing a corrupt practice in connection with the election of a returned candidate(i) the returned candidate; or (ii) his election agent, or (iii) any other person with the consent of either the returned candidate or his election agent; or (iv) any other agent, as explained earlier. The difference in the language of Section 82 and 83(1)(b), in my opinion, is significant. While Section 82 speaks of candidates, Section 83(1)(b) speaks of parties.From the above, it can be seen that two propositions of law are settled by this Court. Firstly, when an election petition is accompanied by annexures, whose content is completely described in the election petition, failure to serve a copy of such an annexure along with the copy of the election petition on a respondentto the electionpetition does not render the copy served on the respondent anything other than a true copy of the election petition. Secondly, even in a case where the content of the annexure is not fully described in the election petition, theof such annexure along with the copy of the election petition to the respondent does not violate the mandate of Section 81(3) in those cases where annexure is only sought to be used as evidence of some allegation contained in the election petition.petition.56. In my opinion, none of the abovementioned three cases laid down as an absolute principle that an annexure to an election petition, whose content is not described in the election petition, would become the integral part of the election petition for all the purposes. It is only for a limited purpose of deciding the question whether a copy of the election petition, served on the respondent in the election petition, is a true copy of the original filed into the Court within the meaning of Section 81(3) of the Act, annexures are treated as integral part of the election petition, that too, only in the situation, where the content of the annexure is not fully described in the body of the main petition. 57. Now, I shall examine the question whether the allegations of commission of corrupt practice are MADE in the election petition within the meaning of the expression under Section 82(b).58. Obviously the allegations must be MADE by the election petitioner. In a case like the one on hand where the election petitioner does not make any such allegation in the body of the election petition, but such allegations are found in some document annexedto the electionpetition – of which the election petitioner is not the authorcan it be said that the allegations are MADE in the petition ?59. In my opinion the answer to the question must be in the negative. Because, firstly, the document annexure is not authored by the election petitioner; secondly, in the entire body of the election petition there is no reference to any corrupt practice committed by Vijay Goel. Making such an allegation against Vijay Goel would in no way help the election petitioner to obtain the relief sought by him in the election petition. Even at the cost of the repetition I must state that the election petition does not seek a further declaration contemplated under Section 84 of the Act. As rightly, argued by Shri Ranjit Kumar, the purpose of the annexure is only to derive support to the allegation of the commission of corrupt practice alleged against the appellant only. Therefore, only that much of the content of the annexure as is relevant to the allegations made in the election petition proper must be considered to have become integral part of the election petition.60. To stretch the principle laid down in Sahodrabai case, to say, that an annexure becomes an integral part of the election petition for all purposes and, therefore, hold that the allegations made against Vijay Goel in the annexure by somebody other than the election petitioner would become allegations MADE in the election petition, would lead to absurd results; that is what exactly sought to be done by the appellant herein. I reject the submission.61. In view of my above conclusion, I do not wish to examine the purport and interpretation of Section 82(b). I must also place it on record that we gave our anxious consideration to the four judgments i.e., Murarka Radhey Shyam Ram Kumar case, Satya Narain case, Rajendra Singh case and Chandrakanth Uttam Chodankar case, which dealt with the interpretation of Section 82(b) and I am of the prima facie opinion that those judgments may require reconsideration in an appropriate case. Since, the same is not necessary for the present in view of my conclusion recorded above, I refrain from examining the correctness of the said decisions.
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Rasiklal Dalpatram Thakkar Vs. State Of Gujarat | Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter. 23. Having regard to the law in existence today, we are unable to accept Mr. Syeds submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so. 24. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4) Cr.P.C. deals with the Courts powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court. 25. The various decisions cited by Mr. Syed, and in particular the decision in Satvinder Kaurs case (supra) provide an insight into the views held by the Supreme Court on the accepted position that the Investigating Officer was entitled to transfer an investigation to a Police Station having jurisdiction to conduct the same. The said question is not in issue before us and as indicated hereinbefore, we are only required to consider whether the Investigating Officer in respect of an investigation undertaken under Section 156(3) Cr.P.C. can file a report stating that he had no jurisdiction to investigate into the complaint as the entire cause of action had arisen outside his jurisdiction despite there being material available to the contrary. The answer, in our view, is in the negative and we are of the firm view that the powers vested in the Investigating Authorities, under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it. | 0[ds]20. From the aforesaid provisions it is quite clear that a police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code.n (2) of Section 156 ensures that once an investigation is commenced undern (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation undern (1) of section 202 Cr.P.C.,n (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him22. In the instant case, the stage contemplated under Section 181(4) Cr.P.C. has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the learned Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions ofn (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered undern (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter23. Having regard to the law in existence today, we are unable to accept Mr. Syeds submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so24. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4) Cr.P.C. deals with the Courts powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court25. The various decisions cited by Mr. Syed, and in particular the decision in Satvinder Kaurs case (supra) provide an insight into the views held by the Supreme Court on the accepted position that the Investigating Officer was entitled to transfer an investigation to a Police Station having jurisdiction to conduct the same. The said question is not in issue before us and as indicated hereinbefore, we are only required to consider whether the Investigating Officer in respect of an investigation undertaken under Section 156(3) Cr.P.C. can file a report stating that he had no jurisdiction to investigate into the complaint as the entire cause of action had arisen outside his jurisdiction despite there being material available to the contrary. The answer, in our view, is in the negative and we are of the firm view that the powers vested in the Investigating Authorities, under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it. | 0 | 3,963 | 1,293 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter. 23. Having regard to the law in existence today, we are unable to accept Mr. Syeds submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so. 24. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4) Cr.P.C. deals with the Courts powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court. 25. The various decisions cited by Mr. Syed, and in particular the decision in Satvinder Kaurs case (supra) provide an insight into the views held by the Supreme Court on the accepted position that the Investigating Officer was entitled to transfer an investigation to a Police Station having jurisdiction to conduct the same. The said question is not in issue before us and as indicated hereinbefore, we are only required to consider whether the Investigating Officer in respect of an investigation undertaken under Section 156(3) Cr.P.C. can file a report stating that he had no jurisdiction to investigate into the complaint as the entire cause of action had arisen outside his jurisdiction despite there being material available to the contrary. The answer, in our view, is in the negative and we are of the firm view that the powers vested in the Investigating Authorities, under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.
### Response:
0
### Explanation:
the Bank, the learned Chief Judicial Metropolitan Magistrate, Ahmedabad, had directed an inquiry under Section 156(3) Cr.P.C. and as it appears, a final report was submitted by the Investigating Agency entrusted with the investigation stating that since the alleged transactions had taken place within the territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and, therefore, the investigation should be transferred to the police agency in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai. In our view, both the trial Court as well as the Bombay High Court had correctly interpreted the provisions of Section 156 Cr.P.C. to hold that it was not within the jurisdiction of the Investigating Agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been committed beyond its territorial jurisdiction. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions ofn (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered undern (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter23. Having regard to the law in existence today, we are unable to accept Mr. Syeds submissions that the High Court had erred in upholding the order of the learned Trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the Investigating Officer in the course of investigation to decide whether a particular Court had jurisdiction to entertain a complaint or not. It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence had purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the learned Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so24. On the materials before him the learned Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. As mentioned hereinbefore, Section 181(4) Cr.P.C. deals with the Courts powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court25. The various decisions cited by Mr. Syed, and in particular the decision in Satvinder Kaurs case (supra) provide an insight into the views held by the Supreme Court on the accepted position that the Investigating Officer was entitled to transfer an investigation to a Police Station having jurisdiction to conduct the same. The said question is not in issue before us and as indicated hereinbefore, we are only required to consider whether the Investigating Officer in respect of an investigation undertaken under Section 156(3) Cr.P.C. can file a report stating that he had no jurisdiction to investigate into the complaint as the entire cause of action had arisen outside his jurisdiction despite there being material available to the contrary. The answer, in our view, is in the negative and we are of the firm view that the powers vested in the Investigating Authorities, under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.
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The Secretary &Ors Vs. B.Shyam Sundar | would be examined and approved by competent committees which were constituted. Rule 7 of the scheme, inter alia, provides that the reward shall be payable to the Government servants upto the level of Assistant Commissioner of Income Tax depending on the contribution made by them as a team as well as individually with regard to collection of intelligence, surveillance, effecting seizures and framing of assessments etc. and due credit will be given to the staff employed in investigation and/or prosecution work resulting in conviction of persons involved. It further provides that the competent committee will decide the manner in which the reward due will be shared between the eligible offices and staff and that the reward will be purely an ex-gratia payment and the competent committees discretion shall be final. 3. The respondent as an assessing officer completed the assessment of an assessee M/s. Anand Samrat Company, Secunderabad for the assessment year 1983-84 by passing assessment order dated 26/27th March, 1986 under Section 143(3) of the Income Tax Act, 1961. In respect of this assessee and its partners, a search had been carried out in July 1982 resulting in seizure of assets and number of incriminating documents. It seems that after analyzing the seized material and details gathered by the Intelligence Wing, an appraisal report was prepared by the Assistant Director of Inspection (Investigation) and it was forwarded to the assessing officer along with the seized material. On 6th May, 1985 a return was filed by the assessee for the year 1983-84 which was the year relevant for the search action. The respondent completed the assessment. The total additional income brought to tax after giving effect to the order of the Income Tax Appellate Tribunal was over Rs. 12,00,000/-. According to the appellants, the additions made in the assessment order were based on either the seized material or the report given by the Investigation Wing. 4. In reply to his claim for reward, the respondents was informed in terms of communication dated 6th April, 1995 that his claim had been considered and he was not found fit for grant of reward under Rule 2(b) of the Reward Scheme, 1985. This was challenged by the respondent by filing before the Central Administrative Tribunal, Hyderabad an application under Section 14 of the Administrative Tribunal Act, 1985. According to the respondent all the conditions laid down in the scheme had been satisfied for grant of reward to him under Rule 2(b) of the Reward Scheme, 1985 and denial thereof to him was illegal and arbitrary. 5. The stand of the appellants before the Tribunal was that payment under the scheme was purely ex-gratia and the discretion of the Committee deciding the matter was final and could not be questioned. On merits, it was submitted that the respondent was not entitled to the grant of the reward under the scheme as the assessment was made on the basis of documents and material seized in the search operation by a team of officers and that was dealt with in Rule 2(c) of the scheme and also that no contribution was made by the respondent. The respondent was not a member of the team which had conducted search and seizure operation. 6. The Tribunal, by order under challenge, allowed the application of the respondent and directed the appellants to grant him the award as prayed by the respondent in accordance with the scales prescribed by the department under the scheme. 7. The objection that the discretion of the Committee that the respondent was not entitled to the reward under the scheme could not be challenged before the Tribunal, was rejected by the Tribunal holding that the reward was part and parcel of service condition of an employee and it was a `remuneration which formed part of service matter and, therefore, the employee had right to challenge it. 8. We may note that the learned counsel for the respondent frankly contended that the claim of the respondent for the reward under the scheme does not fall under Rule 2(c). Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward, the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. Under Section 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to `service matters. `Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the kind postulated by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in death. 10. In view of aforesaid conclusions and also bearing in mind the submission of learned solicitor General that probably the scheme was withdrawn long back, we refrain from commenting on the scheme which grants payment to Government servants for doing their duty. | 1[ds]Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward, the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. Under Section 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to `service matters. `Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purelypayment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how suchpayment can be treated as remuneration of the kind postulated by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in death. 10. In view of aforesaid conclusions and also bearing in mind the submission of learned solicitor General that probably the scheme was withdrawn long back, we refrain from commenting on the scheme which grants payment to Government servants for doing their duty. | 1 | 1,249 | 372 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
would be examined and approved by competent committees which were constituted. Rule 7 of the scheme, inter alia, provides that the reward shall be payable to the Government servants upto the level of Assistant Commissioner of Income Tax depending on the contribution made by them as a team as well as individually with regard to collection of intelligence, surveillance, effecting seizures and framing of assessments etc. and due credit will be given to the staff employed in investigation and/or prosecution work resulting in conviction of persons involved. It further provides that the competent committee will decide the manner in which the reward due will be shared between the eligible offices and staff and that the reward will be purely an ex-gratia payment and the competent committees discretion shall be final. 3. The respondent as an assessing officer completed the assessment of an assessee M/s. Anand Samrat Company, Secunderabad for the assessment year 1983-84 by passing assessment order dated 26/27th March, 1986 under Section 143(3) of the Income Tax Act, 1961. In respect of this assessee and its partners, a search had been carried out in July 1982 resulting in seizure of assets and number of incriminating documents. It seems that after analyzing the seized material and details gathered by the Intelligence Wing, an appraisal report was prepared by the Assistant Director of Inspection (Investigation) and it was forwarded to the assessing officer along with the seized material. On 6th May, 1985 a return was filed by the assessee for the year 1983-84 which was the year relevant for the search action. The respondent completed the assessment. The total additional income brought to tax after giving effect to the order of the Income Tax Appellate Tribunal was over Rs. 12,00,000/-. According to the appellants, the additions made in the assessment order were based on either the seized material or the report given by the Investigation Wing. 4. In reply to his claim for reward, the respondents was informed in terms of communication dated 6th April, 1995 that his claim had been considered and he was not found fit for grant of reward under Rule 2(b) of the Reward Scheme, 1985. This was challenged by the respondent by filing before the Central Administrative Tribunal, Hyderabad an application under Section 14 of the Administrative Tribunal Act, 1985. According to the respondent all the conditions laid down in the scheme had been satisfied for grant of reward to him under Rule 2(b) of the Reward Scheme, 1985 and denial thereof to him was illegal and arbitrary. 5. The stand of the appellants before the Tribunal was that payment under the scheme was purely ex-gratia and the discretion of the Committee deciding the matter was final and could not be questioned. On merits, it was submitted that the respondent was not entitled to the grant of the reward under the scheme as the assessment was made on the basis of documents and material seized in the search operation by a team of officers and that was dealt with in Rule 2(c) of the scheme and also that no contribution was made by the respondent. The respondent was not a member of the team which had conducted search and seizure operation. 6. The Tribunal, by order under challenge, allowed the application of the respondent and directed the appellants to grant him the award as prayed by the respondent in accordance with the scales prescribed by the department under the scheme. 7. The objection that the discretion of the Committee that the respondent was not entitled to the reward under the scheme could not be challenged before the Tribunal, was rejected by the Tribunal holding that the reward was part and parcel of service condition of an employee and it was a `remuneration which formed part of service matter and, therefore, the employee had right to challenge it. 8. We may note that the learned counsel for the respondent frankly contended that the claim of the respondent for the reward under the scheme does not fall under Rule 2(c). Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward, the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. Under Section 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to `service matters. `Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the kind postulated by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in death. 10. In view of aforesaid conclusions and also bearing in mind the submission of learned solicitor General that probably the scheme was withdrawn long back, we refrain from commenting on the scheme which grants payment to Government servants for doing their duty.
### Response:
1
### Explanation:
Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward, the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. Under Section 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to `service matters. `Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purelypayment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how suchpayment can be treated as remuneration of the kind postulated by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in death. 10. In view of aforesaid conclusions and also bearing in mind the submission of learned solicitor General that probably the scheme was withdrawn long back, we refrain from commenting on the scheme which grants payment to Government servants for doing their duty.
|
Sube Singh and Another Vs. Kanhaya and Others | refer, nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes. The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it was not so. We may refer here to some of these cases : Telu v. Chuni [231 P.L.R. 1913.], Giani v. Tek Chand [(1923) I.L.R. 4 Lah. 111.], Behari v. Bhola [(1933 I.L.R. 14 Lah. 600.], Abdul Rafi Khan v. Lahshmi Chand [(1935) I.L.R. 16 Lah. 505.], Ram Datt v. Khushi Ram [A.I.R. (1935) Lah. 692.], Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.] Sohan Lal v. Rati Ram [Regular Second Appeal 136 of 1943 (Unreported) Pb.H.C.] and Suraj Mal v. Birju [Civil Regular Second Appeal No. 693 of 1952 (Unreported) Pb.H.C.].Learned counsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and, therefore, they could not be authorities on which the present case could be decided. We have first to observe that this statement is not correct for the case of Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.], dealt with the custom in Jhajjar Tehsil. That appears from the judgment of the District Judge in that case which is Exh. D. 5 in this case. Furthermore, we notice that many of the cases to which we have earlier referred treated the custom giving the holder unrestricted right to transfer ancestral property for consideration, as existing in the whole district of Rohtak : see for example, Telu v. Chuni [231 P.L.R. 1913.] and Sheoji v. Fajar Ali Khan [230 P.L.R. 1913.]. It also appears from the Riwaj-i-am for Rohtak District recorded in Josephs Customary Law Manual, vol. XXIII p. 50, compiled at the settlement of 1909 that "the power of alienating for consideration is far wider than in the Punjab proper." In view of all this we think that the Courts below were not in error in holding that the Jats of Jhajjar Tehsil in Rohtak District had unrestricted power to transfer land for consideration provided of course the transfer was not for immoral purposes.5. Learned counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided, those which recognised unrestricted power in the case of a holder having a son were not justified by the Riwaj-i-am entries and should not be followed.6. We are unable to accept this contention. We find nothing in the Riwaj-i-am entries which would show that the decisions were not justified. In Josephs Manual it is said that "a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity". It is true that it has also been said there that "whether a proprietor with sons has the same power is a more doubtful case." In spite of this, however, the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted. It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Josephs Manual. In Tuppers Statements of Customary law vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it is quite common for people to sell or mortgage their land. In cases of sale, the right of pre-emption is observed" : (paragraph 25). This statement makes no distinction between the cases of a man with a son and one without a son. We find nothing in the records if custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one. Furthermore, it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom. We think that there is a great deal to be said in favour of the contention of Mr. Achhru Ram that the restriction on the power to alienate where it exists is based on the agnatic theory and therefore, no distinction can be made between a sonless holder and a holder having a son : see Gujar v. Sham Das [107 P.R. 1887.].We come now to the only case which takes a different view and on which the appellant naturally laid great stress, namely, Budal v. Kirpa Ram [76 P.R. 1914.]. That was a case of a sonless holder. It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it. This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted. That we think is enough to prevent us at his distance of time from reviving the view taken in that case. Furthermore, as was pointed out, this case does not refer to the earlier authorities, for example, Telu v. Chuni [231 P.L.R. 1913.]. The only authority to which it refers is Tuppers Customary Manual, but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper from which he prepared his record "did not consider that it can be relied on in doubtful points". This is hardly any reason for there was nothing to show that the customary power was doubtful. It would thus appear that the decision in Budal v. Kripa Ram [76 P.R. 1914.] was not a satisfactory one. | 1[ds]4. We were referred to over a dozen cases and we are sure there are more. The earliest of these was decided in 1913 and the latest in 1956. Excepting in one case to which we shall later refer, nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes. The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it was notcounsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and, therefore, they could not be authorities on which the present case could be decided.We have first to observe that this statement is not correct for the case of Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.], dealt with the custom in Jhajjar Tehsil.d counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided, those which recognised unrestricted power in the case of a holder having a son were not justified by thes and should not be followed.We are unable to accept this contention. We find nothing in theentries which would show that the decisions were not justified. In Josephs Manual it is said that "a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity". It is true that it has also been said there that "whether a proprietor with sons has the same power is a more doubtful case." In spite of this, however, the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted. It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Josephs Manual. In Tuppers Statements of Customary law vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it is quite common for people to sell or mortgage their land. In cases of sale, the right ofis observed" : (paragraph 25). This statement makes no distinction between the cases of a man with a son and one without a son. We find nothing in the records if custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one. Furthermore, it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom. We think that there is a great deal to be said in favour of the contention of Mr. Achhru Ram that the restriction on the power to alienate where it exists is based on the agnatic theory and therefore, no distinction can be made between a sonless holder and a holder having a son : see Gujar v. Sham Das [107 P.R. 1887.].We come now to the only case which takes a different view and on which the appellant naturally laid great stress, namely, Budal v. Kirpa Ram [76 P.R. 1914.]. That was a case of a sonless holder. It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it. This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted. That we think is enough to prevent us at his distance of time from reviving the view taken in that case. Furthermore, as was pointed out, this case does not refer to the earlier authorities, for example, Telu v. Chuni [231 P.L.R. 1913.]. The only authority to which it refers is Tuppers Customary Manual, but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper from which he prepared his record "did not consider that it can be relied on in doubtful points". This is hardly any reason for there was nothing to show that the customary power was doubtful. It would thus appear that the decision in Budal v. Kripa Ram [76 P.R. 1914.] was not a satisfactory one. | 1 | 1,399 | 861 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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refer, nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes. The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it was not so. We may refer here to some of these cases : Telu v. Chuni [231 P.L.R. 1913.], Giani v. Tek Chand [(1923) I.L.R. 4 Lah. 111.], Behari v. Bhola [(1933 I.L.R. 14 Lah. 600.], Abdul Rafi Khan v. Lahshmi Chand [(1935) I.L.R. 16 Lah. 505.], Ram Datt v. Khushi Ram [A.I.R. (1935) Lah. 692.], Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.] Sohan Lal v. Rati Ram [Regular Second Appeal 136 of 1943 (Unreported) Pb.H.C.] and Suraj Mal v. Birju [Civil Regular Second Appeal No. 693 of 1952 (Unreported) Pb.H.C.].Learned counsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and, therefore, they could not be authorities on which the present case could be decided. We have first to observe that this statement is not correct for the case of Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.], dealt with the custom in Jhajjar Tehsil. That appears from the judgment of the District Judge in that case which is Exh. D. 5 in this case. Furthermore, we notice that many of the cases to which we have earlier referred treated the custom giving the holder unrestricted right to transfer ancestral property for consideration, as existing in the whole district of Rohtak : see for example, Telu v. Chuni [231 P.L.R. 1913.] and Sheoji v. Fajar Ali Khan [230 P.L.R. 1913.]. It also appears from the Riwaj-i-am for Rohtak District recorded in Josephs Customary Law Manual, vol. XXIII p. 50, compiled at the settlement of 1909 that "the power of alienating for consideration is far wider than in the Punjab proper." In view of all this we think that the Courts below were not in error in holding that the Jats of Jhajjar Tehsil in Rohtak District had unrestricted power to transfer land for consideration provided of course the transfer was not for immoral purposes.5. Learned counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided, those which recognised unrestricted power in the case of a holder having a son were not justified by the Riwaj-i-am entries and should not be followed.6. We are unable to accept this contention. We find nothing in the Riwaj-i-am entries which would show that the decisions were not justified. In Josephs Manual it is said that "a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity". It is true that it has also been said there that "whether a proprietor with sons has the same power is a more doubtful case." In spite of this, however, the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted. It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Josephs Manual. In Tuppers Statements of Customary law vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it is quite common for people to sell or mortgage their land. In cases of sale, the right of pre-emption is observed" : (paragraph 25). This statement makes no distinction between the cases of a man with a son and one without a son. We find nothing in the records if custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one. Furthermore, it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom. We think that there is a great deal to be said in favour of the contention of Mr. Achhru Ram that the restriction on the power to alienate where it exists is based on the agnatic theory and therefore, no distinction can be made between a sonless holder and a holder having a son : see Gujar v. Sham Das [107 P.R. 1887.].We come now to the only case which takes a different view and on which the appellant naturally laid great stress, namely, Budal v. Kirpa Ram [76 P.R. 1914.]. That was a case of a sonless holder. It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it. This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted. That we think is enough to prevent us at his distance of time from reviving the view taken in that case. Furthermore, as was pointed out, this case does not refer to the earlier authorities, for example, Telu v. Chuni [231 P.L.R. 1913.]. The only authority to which it refers is Tuppers Customary Manual, but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper from which he prepared his record "did not consider that it can be relied on in doubtful points". This is hardly any reason for there was nothing to show that the customary power was doubtful. It would thus appear that the decision in Budal v. Kripa Ram [76 P.R. 1914.] was not a satisfactory one.
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4. We were referred to over a dozen cases and we are sure there are more. The earliest of these was decided in 1913 and the latest in 1956. Excepting in one case to which we shall later refer, nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes. The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it was notcounsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and, therefore, they could not be authorities on which the present case could be decided.We have first to observe that this statement is not correct for the case of Pahlad Singh v. Sukhdev Singh [A.I.R. (1938) Lah. 524.], dealt with the custom in Jhajjar Tehsil.d counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided, those which recognised unrestricted power in the case of a holder having a son were not justified by thes and should not be followed.We are unable to accept this contention. We find nothing in theentries which would show that the decisions were not justified. In Josephs Manual it is said that "a sonless proprietor has full power to alienate his property by sale or mortgage even if there is no necessity". It is true that it has also been said there that "whether a proprietor with sons has the same power is a more doubtful case." In spite of this, however, the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted. It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Josephs Manual. In Tuppers Statements of Customary law vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it is quite common for people to sell or mortgage their land. In cases of sale, the right ofis observed" : (paragraph 25). This statement makes no distinction between the cases of a man with a son and one without a son. We find nothing in the records if custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one. Furthermore, it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom. We think that there is a great deal to be said in favour of the contention of Mr. Achhru Ram that the restriction on the power to alienate where it exists is based on the agnatic theory and therefore, no distinction can be made between a sonless holder and a holder having a son : see Gujar v. Sham Das [107 P.R. 1887.].We come now to the only case which takes a different view and on which the appellant naturally laid great stress, namely, Budal v. Kirpa Ram [76 P.R. 1914.]. That was a case of a sonless holder. It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it. This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted. That we think is enough to prevent us at his distance of time from reviving the view taken in that case. Furthermore, as was pointed out, this case does not refer to the earlier authorities, for example, Telu v. Chuni [231 P.L.R. 1913.]. The only authority to which it refers is Tuppers Customary Manual, but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper from which he prepared his record "did not consider that it can be relied on in doubtful points". This is hardly any reason for there was nothing to show that the customary power was doubtful. It would thus appear that the decision in Budal v. Kripa Ram [76 P.R. 1914.] was not a satisfactory one.
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Mulla Alibhai & Others Vs. Madrasai Hakimia and Coronation High School & Others, Etc | 15000/- and odd has been already paid by defendants 2 to 11 under the decree of the trial Court. It is necessary to mention the fact that an assurance was given to by the learned Solicitor-General that in any case the interest of the non-Bohra students will be safeguarded in this SchoolAccordingly we allow the appeal and order that it be declared that the defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the List M annexed to the plaint : that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties. Necessary directions for the rendering of accounts will be made by the trial Court and in doing so, credit will be given to defendants 2 to 11 of Rs. 15, 000/- and odd already paid by them.""The plaintiffs-appellants admit that it is not necessary to frame any scheme for the administration of the trust and we agree that this is not necessary - at least for the present. It is necessary however that new trustees be appointed for the administration of the trust."24. The decree which was originally drawn up on the basis of the judgment of this Court ran as under :"That defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint (and all the movable and immovable properties of the said school) and that the said Defendants be removed from the management of the said properties and the said Defendants be and are hereby directed to render an account of their administration of the said properties."25. Subsequently, at the instance of the defendants, the words within brackets were deleted from the decree pursuant to an order of this Court, on the application of the judgment-debtors.26. It is common ground that Hakimia School Building is mentioned in the List trust properties under Item III as sub-item (ii) in the Schedule annexed to the plaint.27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observed :"It is possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for the decree-holder). I do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage."28. In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree dated 10-10-1942 of the High Court passed in the appeal arising out of earlier Suit, 5-A of 1936. As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942. | 1[ds]27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observedis possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for theI do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage.In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree datedof the High Court passed in the appeal arising out of earlier Suit,5A of 1936.As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942. | 1 | 3,973 | 711 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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15000/- and odd has been already paid by defendants 2 to 11 under the decree of the trial Court. It is necessary to mention the fact that an assurance was given to by the learned Solicitor-General that in any case the interest of the non-Bohra students will be safeguarded in this SchoolAccordingly we allow the appeal and order that it be declared that the defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the List M annexed to the plaint : that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties. Necessary directions for the rendering of accounts will be made by the trial Court and in doing so, credit will be given to defendants 2 to 11 of Rs. 15, 000/- and odd already paid by them.""The plaintiffs-appellants admit that it is not necessary to frame any scheme for the administration of the trust and we agree that this is not necessary - at least for the present. It is necessary however that new trustees be appointed for the administration of the trust."24. The decree which was originally drawn up on the basis of the judgment of this Court ran as under :"That defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint (and all the movable and immovable properties of the said school) and that the said Defendants be removed from the management of the said properties and the said Defendants be and are hereby directed to render an account of their administration of the said properties."25. Subsequently, at the instance of the defendants, the words within brackets were deleted from the decree pursuant to an order of this Court, on the application of the judgment-debtors.26. It is common ground that Hakimia School Building is mentioned in the List trust properties under Item III as sub-item (ii) in the Schedule annexed to the plaint.27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observed :"It is possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for the decree-holder). I do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage."28. In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree dated 10-10-1942 of the High Court passed in the appeal arising out of earlier Suit, 5-A of 1936. As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942.
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27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observedis possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for theI do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage.In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree datedof the High Court passed in the appeal arising out of earlier Suit,5A of 1936.As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942.
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Kishori Lal Vs. Birdhi Lal & Ors | JASWANT SINGH, J.1. This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968.2. The facts leading to this appeal are: On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). By his judgment dated December 24, 1962, the Assistant Collector dismissed the suit. The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by his judgment dated November 9, 1 963, and reversing the judgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser. Aggrieved by the judgment and decree of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority. Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution. The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5(43) of the Act and not a trespasser as conceived by section 5(44) of the Act, was not liable to be ejected from the land. Dissatisfied with this judgment, Kishori Lal has come up this Court.The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well established principles of law, the impugned judgment cannot be sustained. Elaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue. The contention advanced on behalf of the appellant is, in our opinion, wholly untenable. The expression trespasser is defined in section 5(44) of the Act as follows:-"5(44). Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him".3. The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him. The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority. The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (Ex. A-4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act. Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub-tenants". Khudkasht is defined in section 5, sub s. 23 as land "cultivated personally by an estate holder". It also includes "land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law". Similarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183". In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of fact s which were absent in the case. It was, therefore, a completely hopeless plea which we cannot entertain at this stage.4. | 0[ds]The contention advanced on behalf of the appellant is, in our opinion, whollyabove definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him.The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority.The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (Ex. A-4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act. Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub-tenants". Khudkasht is defined in section 5, sub s. 23 as land "cultivated personally by an estate holder". It also includes "land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law". Similarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183". In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of fact s which were absent in the case. It was, therefore, a completely hopeless plea which we cannot entertain at this stage. | 0 | 1,057 | 530 | ### Instruction:
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JASWANT SINGH, J.1. This appeal by special leave is directed against the judgment dated March 10, 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No. 384 of 1968.2. The facts leading to this appeal are: On July 1, 1961, Kishori Lal, the appellant herein, brought a suit in the court of the Assistant Collector, Baran, against Birdhi Lal, respondent No. 1, for possession of land comprised in khasra Nos. 513, 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). By his judgment dated December 24, 1962, the Assistant Collector dismissed the suit. The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by his judgment dated November 9, 1 963, and reversing the judgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser. Aggrieved by the judgment and decree of the Revenue Appellate Authority, Birdhi Lal took the matter in further appeal to the Board of Revenue, Rajasthan, but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority. Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue, Rajasthan, Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution. The High Court by its aforesaid judgment and order dated March 10, 1975, allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 5(43) of the Act and not a trespasser as conceived by section 5(44) of the Act, was not liable to be ejected from the land. Dissatisfied with this judgment, Kishori Lal has come up this Court.The learned counsel for the appellant has, while supporting the appeal, vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well established principles of law, the impugned judgment cannot be sustained. Elaborating his submission, the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record, the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue. The contention advanced on behalf of the appellant is, in our opinion, wholly untenable. The expression trespasser is defined in section 5(44) of the Act as follows:-"5(44). Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him".3. The above definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him. The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority. The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (Ex. A-4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act. Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub-tenants". Khudkasht is defined in section 5, sub s. 23 as land "cultivated personally by an estate holder". It also includes "land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law". Similarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183". In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of fact s which were absent in the case. It was, therefore, a completely hopeless plea which we cannot entertain at this stage.4.
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The contention advanced on behalf of the appellant is, in our opinion, whollyabove definition makes it clear that in order to be able to succeed in his suit, Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him. In the instant case, there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him.The only point that we are, therefore, left to determine is whether Birdhi Lal took possession or retained possession of the land without authority.The material on the record does not at all establish any of these elements. On the other hand, as rightly pointed out by the High Court, the Parcha lagan, Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent. As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case, the High Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue.It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama (Ex. A-4), he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act. Reference to section 180 of the Act shows that it applies only to suits for "ejectment of Khudkasht or Ghair Khatedar tenants or sub-tenants". Khudkasht is defined in section 5, sub s. 23 as land "cultivated personally by an estate holder". It also includes "land recorded as Khudkasht, sir, havala, niji-jot, gharkhed in settlement records" at the commencement of the Act as well as "land allotted after such commencement as Khudkasht under any law". Similarly, the components of rights to sub-tenancy and gair khatedari tenancies are also determined by the provisions of the Act. The High Court had recorded the finding, on this part of the case: "It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid, his claim was not upheld under section 180 so that the suit was decreed as one under section 183". In other words, findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us. It required necessary averments and proof of fact s which were absent in the case. It was, therefore, a completely hopeless plea which we cannot entertain at this stage.
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The Estates Development Limited (In Liquidation) Through Its Official Liquidator Vs. Union Of India & Others | of consolidation the area allotted to the company came to 23 kanals and 5 marlas. Out of this the company sold 9 1/2 kanals to Mohan Singh, a Jat of village Bohani for Rs. 1,900.00 by registered sale deed, dated May 22, 1956. Another portion of 220 kanals and 15 marlas was sold on September 12, 1958 for Rs. 10,012/- to one Mehnga Singh and his sons. It was later discovered that the company had been allotted less area of land than it was entitled to as a result of consolidation operations and so an additional area of 24 kanals was allotted to the company in village Bohani to make up the deficiency. On August 30, 1960 the Managing Officer, respondent No. 3, made a report, Annexure C, to the Chief Settlement Commissioner, Respondent No. 2 recommending cancellation of the allotment of land to the company and consequently the grant of permanent rights to it. The company was heard by the Chief Settlement Commissioner and thereafter the Chief Settlement Commissioner rejected the registered sale deed and balance sheets and relying on the jamabandi, annexure X, came to the conclusion that at the time of partition the company did not own any land in Pakistan nor was it in occupation of any such land. By his order dated February 27, 1961 respondent No. 2 set aside the permanent rights acquired by the company to the extent of 27 standard acres, 11 1/2 units and also cancelled the quasi-permanent allotment of the land made in the name of the company. On March 29, 1961 a revision petition was filed by the Company to the Central Government, respondent No. 1. But the revision petition was dismissed on May 10, 1961. On June 8, 1961, the company filed a writ petition under Art. 226 of the Constitution praying for grant of a writ to quash the order of the Chief Settlement Commissioner, dated February 27, 1961. The writ petition was allowed by Shamsher Bahadur J. But the respondent took the matter in appeal under cl. 10 of Letters Patent to a Division Bench which reversed the judgment of the learned single Judge and ordered the writ petition to be dismissed. 2. Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) (hereinafter called the Act) states:"(1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. (2) Without prejudice to the generality of the foregoing power under sub-section (1)if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, cancelling the lease or allotment granted to him; and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue. * * * *" In support of the appeal it was contended on behalf of the company that the document described as jamabandi, annexure H to writ petition, was not the jamabandi of the year 1946-47 of the land in dispute and the Division Bench was in error in holding that the Chief Settlement Commissioner could properly rely upon annexure H. It was pointed out that annexure H was not the jamabandi for 1946-47 but it consisted of three notes one saying "Maamur bai", that is, that there is no land of non-Muslims in the village, the second note related to Kartar Chand and Gopal Das who embraced Islam and the third related to sale of his land by Harjit Singh in favour of S. A. Latif. All these notes are dated May 3, 1951. It was pointed out that these notes were made on May 3, 1961 for the purposes of exchange of jamabandi and the document did not depict the state of affairs as on August 15, 1947 which was the material date. It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground thatthere is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by menas of fraud, false representation or concealment of any material fact" within the meaning of S. 24 (2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had recorded a finding that the company had not proved it stile to any land in village Momonpura and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for taking action under section 24 (2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under S. 24 (2) of the Act. | 1[ds]It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground thatthere is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by menas of fraud, false representation or concealment of any material fact" within the meaning of S. 24 (2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had recorded a finding that the company had not proved it stile to any land in village Momonpura and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for taking action under section 24 (2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under S. 24 (2) of the Act. | 1 | 1,324 | 213 | ### Instruction:
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of consolidation the area allotted to the company came to 23 kanals and 5 marlas. Out of this the company sold 9 1/2 kanals to Mohan Singh, a Jat of village Bohani for Rs. 1,900.00 by registered sale deed, dated May 22, 1956. Another portion of 220 kanals and 15 marlas was sold on September 12, 1958 for Rs. 10,012/- to one Mehnga Singh and his sons. It was later discovered that the company had been allotted less area of land than it was entitled to as a result of consolidation operations and so an additional area of 24 kanals was allotted to the company in village Bohani to make up the deficiency. On August 30, 1960 the Managing Officer, respondent No. 3, made a report, Annexure C, to the Chief Settlement Commissioner, Respondent No. 2 recommending cancellation of the allotment of land to the company and consequently the grant of permanent rights to it. The company was heard by the Chief Settlement Commissioner and thereafter the Chief Settlement Commissioner rejected the registered sale deed and balance sheets and relying on the jamabandi, annexure X, came to the conclusion that at the time of partition the company did not own any land in Pakistan nor was it in occupation of any such land. By his order dated February 27, 1961 respondent No. 2 set aside the permanent rights acquired by the company to the extent of 27 standard acres, 11 1/2 units and also cancelled the quasi-permanent allotment of the land made in the name of the company. On March 29, 1961 a revision petition was filed by the Company to the Central Government, respondent No. 1. But the revision petition was dismissed on May 10, 1961. On June 8, 1961, the company filed a writ petition under Art. 226 of the Constitution praying for grant of a writ to quash the order of the Chief Settlement Commissioner, dated February 27, 1961. The writ petition was allowed by Shamsher Bahadur J. But the respondent took the matter in appeal under cl. 10 of Letters Patent to a Division Bench which reversed the judgment of the learned single Judge and ordered the writ petition to be dismissed. 2. Section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954) (hereinafter called the Act) states:"(1) The Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act in which a Settlement Officer, an Assistant Settlement Officer, an Assistant Settlement Commissioner, an Additional Settlement Commissioner, a Settlement Commissioner, a managing officer or a managing corporation has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit. (2) Without prejudice to the generality of the foregoing power under sub-section (1)if the Chief Settlement Commissioner is satisfied that any order for payment of compensation to a displaced person or any lease or allotment granted to such a person has been obtained by him by means of fraud, false representation or concealment of any material fact, then, notwithstanding anything contained in this Act, the Chief Settlement Commissioner may pass an order directing that no compensation shall be paid to such a person or reducing the amount of compensation to be paid to him, or as the case may be, cancelling the lease or allotment granted to him; and if it is found that a displaced person has been paid compensation which is not payable to him, or which is in excess of the amount payable to him, such amount or excess, as the case may be, may on a certificate issued by the Chief Settlement Commissioner, be recovered in the same manner as an arrear of land revenue. * * * *" In support of the appeal it was contended on behalf of the company that the document described as jamabandi, annexure H to writ petition, was not the jamabandi of the year 1946-47 of the land in dispute and the Division Bench was in error in holding that the Chief Settlement Commissioner could properly rely upon annexure H. It was pointed out that annexure H was not the jamabandi for 1946-47 but it consisted of three notes one saying "Maamur bai", that is, that there is no land of non-Muslims in the village, the second note related to Kartar Chand and Gopal Das who embraced Islam and the third related to sale of his land by Harjit Singh in favour of S. A. Latif. All these notes are dated May 3, 1951. It was pointed out that these notes were made on May 3, 1961 for the purposes of exchange of jamabandi and the document did not depict the state of affairs as on August 15, 1947 which was the material date. It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground thatthere is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by menas of fraud, false representation or concealment of any material fact" within the meaning of S. 24 (2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had recorded a finding that the company had not proved it stile to any land in village Momonpura and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for taking action under section 24 (2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under S. 24 (2) of the Act.
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### Explanation:
It is not necessary to examine this document in detail for we are of opinion that the appeal must be allowed and the order of the Chief Settlement Commissioner must be quashed on the ground thatthere is no finding of the Chief Settlement Commissioner that the Company had obtained allotment of the land "by menas of fraud, false representation or concealment of any material fact" within the meaning of S. 24 (2) of the Act. It is true that the Chief Settlement Commissioner had recorded a finding that the company had recorded a finding that the company had not proved it stile to any land in village Momonpura and the allotment was "undeserved". But this is not tantamount to a finding that the allotment had been obtained by a false representation or fraud or concealment of material facts. Such a finding is a condition precedent for taking action under section 24 (2) of the Act. The condition imposed by the section is mandatory and in the absence of any such finding the Chief Settlement Commissioner had no jurisdiction to cancel the allotment made to the company under S. 24 (2) of the Act.
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Sham Lal & Ors. Etc Vs. Amar Nath & Ors | of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors. It is for the Legislatures to step in and bring about harmony between the society and the laws governing it. That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects.11. We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule of interpretation.12. Mr. Sen in support of his contention that on a true interpretation of the relevant passages in Mitakshara, defendants Nos. 1 to 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Raghava Surendra Sahi v. Babul Lachmi Kuer, ILR 18 Pat 590 = (AIR 1939 Pat 636 ). Therein the dispute related to the succession to the properties left by a maiden and not by a married woman. The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore, the observations made in regard to those rules have no relevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bai Kesserbai v. Hunsraj Morarji, (1906) 33 Ind App 176 (PC). Therein the dispute was between Bai Kesserbai the surviving co-widow of the deceased Bachubais husband Koreji haridass, Hunsraj Morarji the separated nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai and Bai Moghibai, the widow of a younger brother of Koreji named Ranchordass Haridass. The question for consideration by the Judicial Committee was as to the true scope of the latter part of the plactia 9 in Colebrookes Mitakshara which says"if a woman die without issue, that is leaving no progeny.. the womans property...shall be taken by her kinsmen, namely her husband and the rest as will be forthwith explained".Their Lordships observed that there can be no reasonable doubt that according to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the co-widow of the husband of the deceased was the nearest sapinda of the deceased womans husband hence entitled to succeed to the estate in question. This decision again does not bear on the point under consideration.13. Lastly, Mr. Sen contended that in view of the Hindu Womens Rights to Property Act (XVIII of 1937), it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This contention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SC 60), wherein this Court dealing with Act II of 1929, observed:"The question is whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and Section 1 (2) expressly lays down that "the Act applies only to persons who, but for the passing of this Act, would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will". Thus, the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property."Similar would be the position under the Hindu Womens Rights to Property Act, 1937. Section 3 (1) of that Act which provides for the devolution of the property reads thus:"When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall, subject to the provisions of sub-sec. (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son..."14. From this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hindu female. | 0[ds]5. It is the admitted case of the parties that the properties in question are not shukla and that Barji was married in one of the approved forms. Therefore, while pronouncing on the competing claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is correct andlegal position is stated in identical terms in Maynes Treatise on Hindu Law (11th Edn.- Paragraph 623, pp. 744 to 746) as well as in the other text-books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No. 7 (sons son) was not challenged. The same is well settled by decided cases. It is not necessary to refer to those cases. The only contention advanced on behalf of some of the defendants is that after sons sons come sons daughters. Alternatively it was contended that the expression "sons son" includes "sons daughter". We have to see whether these contentions are well founded.These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach sons son. The controversy now is as to whoshould succeed to such an estate if none of the heirs mentioned in items Nos. 1 to 7 in paragraph 147 of Mullas Hindu Law are in existence at the time of the death of the womanparties did not place before us either an admitted translation of the original text or even an official translation. Colebrooke is a distinguished oriental scholar. The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his commentary on Hindu Law (2nd Edn.) deals with the order of succession under Mitakshara to stridhana in Chapter VI of that book. His translation of the relevant commentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya v. Ramcharya, (1909) ILR 33 Bomcontention is opposed to the commentaries by Narada, Gautama and the later commentators. More than that it runs counter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century.It is now settled that stridhana of a Hindu woman governed by Mitakshara passes in the order mentioned in Mitakshara and the children of the deceased woman do not take the same as a body either jointly or as tenants-in-common. Only the heirs belonging to a class take the properties asdo not think that in the matter of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors.We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule ofcontention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SCFrom this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hinduwe are unable to agree with Mr. Sen that Colebrookes translation does not bring out accurately the meaning of the relevant passages to Mitakshara. | 0 | 3,385 | 791 | ### Instruction:
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of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors. It is for the Legislatures to step in and bring about harmony between the society and the laws governing it. That is why our Parliament enacted several statutes in 1955 to amend the Hindu Law in various respects.11. We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule of interpretation.12. Mr. Sen in support of his contention that on a true interpretation of the relevant passages in Mitakshara, defendants Nos. 1 to 3 are preferential heirs to deceased Barji, relied on certain passages in some of the decided cases. First he referred to the decision of the Patna High Court in Raghava Surendra Sahi v. Babul Lachmi Kuer, ILR 18 Pat 590 = (AIR 1939 Pat 636 ). Therein the dispute related to the succession to the properties left by a maiden and not by a married woman. The rules relating to the succession to the stridhana of a deceased maiden are wholly different from those relating to succession to the stridhana of a married woman. Therefore, the observations made in regard to those rules have no relevance for our present purpose. He next invited our attention to certain passages in the decision of the Judicial Committee in Bai Kesserbai v. Hunsraj Morarji, (1906) 33 Ind App 176 (PC). Therein the dispute was between Bai Kesserbai the surviving co-widow of the deceased Bachubais husband Koreji haridass, Hunsraj Morarji the separated nephew of Koreji, being the son of his eldest brother, who predeceased Bachubai and Bai Moghibai, the widow of a younger brother of Koreji named Ranchordass Haridass. The question for consideration by the Judicial Committee was as to the true scope of the latter part of the plactia 9 in Colebrookes Mitakshara which says"if a woman die without issue, that is leaving no progeny.. the womans property...shall be taken by her kinsmen, namely her husband and the rest as will be forthwith explained".Their Lordships observed that there can be no reasonable doubt that according to Mitakshara definition of sapinda, husband and wife are sapindas to each other and the co-widow of the husband of the deceased was the nearest sapinda of the deceased womans husband hence entitled to succeed to the estate in question. This decision again does not bear on the point under consideration.13. Lastly, Mr. Sen contended that in view of the Hindu Womens Rights to Property Act (XVIII of 1937), it must be held that defendants 1 to 3 are nearer heirs to the deceased than the plaintiff. This contention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SC 60), wherein this Court dealing with Act II of 1929, observed:"The question is whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and Section 1 (2) expressly lays down that "the Act applies only to persons who, but for the passing of this Act, would have been subject to the Law of Mitakshara in respect of the provisions herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will". Thus, the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law under all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property."Similar would be the position under the Hindu Womens Rights to Property Act, 1937. Section 3 (1) of that Act which provides for the devolution of the property reads thus:"When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow or if there is more than one widow all his widows together shall, subject to the provisions of sub-sec. (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son..."14. From this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hindu female.
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5. It is the admitted case of the parties that the properties in question are not shukla and that Barji was married in one of the approved forms. Therefore, while pronouncing on the competing claims made in this case, we must be guided by the order of succession prescribed in paragraph 147, if the same is correct andlegal position is stated in identical terms in Maynes Treatise on Hindu Law (11th Edn.- Paragraph 623, pp. 744 to 746) as well as in the other text-books on Hindu Law referred to at the time of the hearing. At this stage it may be mentioned that the correctness of the order of succession mentioned in paragraph 147 till we come to item No. 7 (sons son) was not challenged. The same is well settled by decided cases. It is not necessary to refer to those cases. The only contention advanced on behalf of some of the defendants is that after sons sons come sons daughters. Alternatively it was contended that the expression "sons son" includes "sons daughter". We have to see whether these contentions are well founded.These passages have received interpretation at the hands of the Judicial Committee as well as the High Courts in India and the law is now settled as to the mode of succession to stridhana under Mitakshara until we reach sons son. The controversy now is as to whoshould succeed to such an estate if none of the heirs mentioned in items Nos. 1 to 7 in paragraph 147 of Mullas Hindu Law are in existence at the time of the death of the womanparties did not place before us either an admitted translation of the original text or even an official translation. Colebrooke is a distinguished oriental scholar. The Judicial Committee as well as the various High Courts in this country have relied on his translation of Mitakshara in dealing with the question of inheritance. Jogendra Nath Bhattacharya in his commentary on Hindu Law (2nd Edn.) deals with the order of succession under Mitakshara to stridhana in Chapter VI of that book. His translation of the relevant commentaries accords with those made by Colebrooke. To the same effect is the opinion expressed by Justice Chandavarkar in Bhimacharya v. Ramcharya, (1909) ILR 33 Bomcontention is opposed to the commentaries by Narada, Gautama and the later commentators. More than that it runs counter to the decisions rendered by the Judicial Committee and the various High Courts during the last over a century.It is now settled that stridhana of a Hindu woman governed by Mitakshara passes in the order mentioned in Mitakshara and the children of the deceased woman do not take the same as a body either jointly or as tenants-in-common. Only the heirs belonging to a class take the properties asdo not think that in the matter of succession to stridhana propinquity was considered by the law-givers as the sole or even the principal test, otherwise there is no justification for a daughters daughter or a daughters son to succeed to the estate of a woman in preference to her son. It is true that it is not easy to find out the reason behind the rules relating to succession to stridhana. But that is equally true of many other branches of our family laws. These contradictions are inevitable in socio-religious matters, particularly when our social laws were controlled by our religious beliefs and our law-givers were our religious preceptors.We are unable to accept the contention of Mr. Bishan Narain that the expression sons son includes sons daughters as according to the rules of interpretation the masculine includes the feminine. That rule of interpretation is inapplicable in the present case as daughters daughter succeeds to the stridhana in preference to daughters son. The order of succession prescribed clearly rules out the application of that rule ofcontention was negatived by the High Court on the basis of the rule laid down by this Court in Annagouda Nathgouda v. Court of Wards, (1952) 3 SCR 208 = (AIR 1952 SCFrom this provision it is clear that Hindu Womens Rights to Property Act, 1937, applies only to the separate property left by a Hindu male. It does not apply either to the coparcenary property or to the property of a Hinduwe are unable to agree with Mr. Sen that Colebrookes translation does not bring out accurately the meaning of the relevant passages to Mitakshara.
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A. Dharmalingam (dead) by L.Rs Vs. V. Lalithambal and Ors | U.U. Lalit, J.1. These appeals by special leave challenge the common judgment and order dated 25.07.2003 passed by the High Court of Judicature at Madras dismissing Second Appeal Nos. 1307-1308 of 1992 preferred by the Appellant (since deceased and now represented by his legal representatives).2. In partition between two brothers effected sometime in 1923, certain properties including the suit property came to the share of one Subramania Iyer. In a subsequent partition executed insofar as branch of said Subramania Iyer was concerned, the properties were equally divided between four sons of said Subramania Iyer, namely, Defendant Nos. 1 to 4 in the present proceedings. Having given 1/4th share each to said four sons, the right of enjoyment of the properties in question was retained by said Subramania Iyer and his wife Meenakshi Ammal till their life time. Defendant Nos. 2 and 1, namely, S. Krishnamoorthy and S. Venkateswaran by registered sale deeds dated 11.09.1975 and 30.09.1975 respectively transferred their undivided share in the properties in question in favour of the Appellant. Said Subramania Iyer and Meenakshi Ammal died in the years 1975 and 1984 respectively.3. The Appellant thereafter filed Original Suit No. 64 of 1985 on the file of the District Munsif Court, Uthamapalayam seeking declaration that he was entitled to undivided half share in the suit property which was described in Schedule to the plaint. Relying on two sale deeds effected by Defendant Nos. 1 and 2 it was contended that the Appellant was entitled to one half share in the suit property. It may be noted here that Defendant No. 2, S. Krishnamoorthy did not have a son but Defendant No. 1, S. Venkateswaran had four sons. However, said four sons were not made parties in Original Suit No. 64 of 1985. The Appellant thereafter filed O.S. No. 265 of 1986 seeking injunction against the Defendants named therein. In this suit said four sons of S. Venkateswaran were added as parties.4. The aforesaid suits were contested. By its common judgment and order dated 06.01.1989 the trial court decreed Original Suit No. 64 of 1985 holding the Appellant to be entitled to one half share in the suit property and accordingly passed a preliminary decree in that behalf. The trial court, however, declined to grant any relief of permanent injunction against the Defendants. The Defendants being aggrieved, filed Appeal Nos. 17 and 18 of 1989 in the Court of Subordinate Judge, Periyakulam. These appeals were disposed of by a common judgment dated 31.07.1991. The lower appellate court held that since four sons of Defendant No. 1 were not parties to the suit for declaration and partition, insofar as branch of said Defendant No. 1 was concerned the sale deed in favour of the Appellant would be valid only in respect of share of said Defendant No. 1. The lower appellate court held that the Appellant would thus be entitled to the share of Defendant No. 1 in his branch, namely 1/4 x 1/6 = 1/24 and the share of Defendant No. 2. The resultant share that the Appellant was entitled to was, however, computed to be 5/24.5. The matter was carried further by filing Second Appeal Nos. 1307-1308 of 1992 in the High Court. The second appeals were dismissed by the High Court confirming the view taken by the lower appellate court.6. We heard Mr. v. Sudeer, learned Advocate for the Appellant and Mr. V. Prabhakar, learned Advocate for the Respondents. Having gone through the entirety of the matter and the relevant record we are in complete agreement with the assessment made by the lower appellate court and the High Court insofar as the merits of the matter are concerned. However, there is a small error which needs to be corrected. The addition of 1/24 share of Defendant No. 1 and 1/4th share of Defendant No. 2 would aggregate to 7/24 and not 5/24. Except for this correction, the judgments under appeal do not call for any interference by this Court. | 1[ds]6. We heard Mr. v. Sudeer, learned Advocate for the Appellant and Mr. V. Prabhakar, learned Advocate for the Respondents. Having gone through the entirety of the matter and the relevant record we are in complete agreement with the assessment made by the lower appellate court and the High Court insofar as the merits of the matter are concerned. However, there is a small error which needs to be corrected. The addition of 1/24 share of Defendant No. 1 and 1/4th share of Defendant No. 2 would aggregate to 7/24 and not 5/24. Except for this correction, the judgments under appeal do not call for any interference by this Court. | 1 | 738 | 126 | ### Instruction:
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U.U. Lalit, J.1. These appeals by special leave challenge the common judgment and order dated 25.07.2003 passed by the High Court of Judicature at Madras dismissing Second Appeal Nos. 1307-1308 of 1992 preferred by the Appellant (since deceased and now represented by his legal representatives).2. In partition between two brothers effected sometime in 1923, certain properties including the suit property came to the share of one Subramania Iyer. In a subsequent partition executed insofar as branch of said Subramania Iyer was concerned, the properties were equally divided between four sons of said Subramania Iyer, namely, Defendant Nos. 1 to 4 in the present proceedings. Having given 1/4th share each to said four sons, the right of enjoyment of the properties in question was retained by said Subramania Iyer and his wife Meenakshi Ammal till their life time. Defendant Nos. 2 and 1, namely, S. Krishnamoorthy and S. Venkateswaran by registered sale deeds dated 11.09.1975 and 30.09.1975 respectively transferred their undivided share in the properties in question in favour of the Appellant. Said Subramania Iyer and Meenakshi Ammal died in the years 1975 and 1984 respectively.3. The Appellant thereafter filed Original Suit No. 64 of 1985 on the file of the District Munsif Court, Uthamapalayam seeking declaration that he was entitled to undivided half share in the suit property which was described in Schedule to the plaint. Relying on two sale deeds effected by Defendant Nos. 1 and 2 it was contended that the Appellant was entitled to one half share in the suit property. It may be noted here that Defendant No. 2, S. Krishnamoorthy did not have a son but Defendant No. 1, S. Venkateswaran had four sons. However, said four sons were not made parties in Original Suit No. 64 of 1985. The Appellant thereafter filed O.S. No. 265 of 1986 seeking injunction against the Defendants named therein. In this suit said four sons of S. Venkateswaran were added as parties.4. The aforesaid suits were contested. By its common judgment and order dated 06.01.1989 the trial court decreed Original Suit No. 64 of 1985 holding the Appellant to be entitled to one half share in the suit property and accordingly passed a preliminary decree in that behalf. The trial court, however, declined to grant any relief of permanent injunction against the Defendants. The Defendants being aggrieved, filed Appeal Nos. 17 and 18 of 1989 in the Court of Subordinate Judge, Periyakulam. These appeals were disposed of by a common judgment dated 31.07.1991. The lower appellate court held that since four sons of Defendant No. 1 were not parties to the suit for declaration and partition, insofar as branch of said Defendant No. 1 was concerned the sale deed in favour of the Appellant would be valid only in respect of share of said Defendant No. 1. The lower appellate court held that the Appellant would thus be entitled to the share of Defendant No. 1 in his branch, namely 1/4 x 1/6 = 1/24 and the share of Defendant No. 2. The resultant share that the Appellant was entitled to was, however, computed to be 5/24.5. The matter was carried further by filing Second Appeal Nos. 1307-1308 of 1992 in the High Court. The second appeals were dismissed by the High Court confirming the view taken by the lower appellate court.6. We heard Mr. v. Sudeer, learned Advocate for the Appellant and Mr. V. Prabhakar, learned Advocate for the Respondents. Having gone through the entirety of the matter and the relevant record we are in complete agreement with the assessment made by the lower appellate court and the High Court insofar as the merits of the matter are concerned. However, there is a small error which needs to be corrected. The addition of 1/24 share of Defendant No. 1 and 1/4th share of Defendant No. 2 would aggregate to 7/24 and not 5/24. Except for this correction, the judgments under appeal do not call for any interference by this Court.
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6. We heard Mr. v. Sudeer, learned Advocate for the Appellant and Mr. V. Prabhakar, learned Advocate for the Respondents. Having gone through the entirety of the matter and the relevant record we are in complete agreement with the assessment made by the lower appellate court and the High Court insofar as the merits of the matter are concerned. However, there is a small error which needs to be corrected. The addition of 1/24 share of Defendant No. 1 and 1/4th share of Defendant No. 2 would aggregate to 7/24 and not 5/24. Except for this correction, the judgments under appeal do not call for any interference by this Court.
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Bhogaraju Venkata Janakirama Rao Vs. The Board Of Commissioners For Hindu Religious Endowments, Andhra Pradesh, Hyderabad | the institution. "20. The learned judges of the High Court modified paragraph 17 by depriving the karnam of his share in the dibbi collections, even if he chose to perform duties personally and after the modification the paragraph read:"The karnam shall be entitled to a salary of Rs. 25 / - per mensem. He may appoint a deputy in his place who should be a person acceptable to the executive officer. "21. The reasons assigned for making this modification were two: (11) As a result of the modifications effected by the learned District Judge as regards which no objection was raised, provision had been made for the appointment of an executive officer whose duty it was to keep regular accounts, which would show the particulars of the offerings made in the dibbi from which the share due to the archakas could be computed, the karnam s duties and responsibilities had been lessened, if not eliminated. (2) Since the karnam, as a matter of practice, discharged his duties through deputies appointed by him, it was not necessary that the trustees should insist upon his personal attendance and the temple might therefore benefit from the practical abolition of his hereditary office the learned Counsel for the appellant contests the correctness of this approach to the problem and we agree with him that the learned Judges were in error in modifying S.17 of the scheme in the circumstances of the case. The office of Karnam was held by hereditary right and without entering into a discussion of the question as to whether such an office could be abolished and if so, in what circumstances, (sic) there was no prayer in the application by the Board to abolish that office and along with it the right of the karnam to the customary emoluments. The averment in paragraph 8(g) which we have extracted earlier, was (a) a complaint that the Karnam employed deputies on a nominal salary paid by him and that the work of these deputies was unsatisfactory, (b) Consequent on this, there was a prayer for a direction whereby when the karnam entrusted his duties to a deputy, the Karnam should not be entitled to the customary remuneration of an 1 / 16th part in the half share of the dibbi collections which pertained to the temple but only to the actual wages paid to the deputy. The subject-matter of the dispute which had to be resolved by the District Court and of the High Court on appeal was only whether the scheme framed in O.S. 1 of 1925 should be modified so as to provide for the payment of a lesser remuneration where the karnam employed a deputy. The learned District Judge had considered these matters and had given his directions in paragraph 17 of the scheme.22. The learned Judges of the High Court, however, did not address themselves to the pleadings and to the only matter in controversy before them viz. (1) should the karnam be entitled to appoint deputies to perform his duties and if so, in what circumstances and subject to what conditions, (2) In such an event what should be the remuneration payable to the karnam. Instead they proceeded practically to abolish the hereditary office and permitted him a nominal remuneration. It is unnecessary to consider whether it was such a drastic change that was intended to be urged in the relevant ground of appeal to the High Court which we have set out earlier, for we are clearly of the opinion that the learned Judges were in error in modifying in the manner they did para. 17 of the scheme. Let us see the actual effect of para. 17 of the scheme as framed by the learned District Judge. He recognised the customary remuneration of the office-holder. But that remuneration was not by custom intended to be a sine cure, to be drawn and enjoyed by the Karnam, he being at liberty to appoint a deputy at a nominal salary to perform the duties of the office. Normally the Karnam himself had to perform the duties and it was only when owing to unavoidable reason he could not do so that custom sanctioned the employment of deputy. By the order that he passed he recognised this also and made it incumbent on the Karnam to do duties personally in order to entitle him to claim the customary remuneration. The conditions set out in para 17 therefore were just both as regards the institution as well as the officeholders and gave effect to the customary rights and obligations of both. But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to him for such service. That, as we have pointed out, was not even the relief claimed in the application - assuming that such relief was claimable and could have been granted by the Court functioning under the Act having regard to the terms of S. 79 We have extracted earlier, a mater about which we prefer not to express any opinion.23. The learned Judges themselves appeared to recognise that the office being hereditary they could not abolish it. But if this were so, it was not proper to direct the virtual abolition of this office and depriving the officeholder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi collection was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment of an executive officer would not by itself eliminate the need for a Karnam and the performance of the duties which custom and usage laid on him. We agree with him in this submission. In the circumstances, we are no justification for reducing his remuneration to a nominal figure. We consider the directions given by the learned District Judge proper and sound and are clearly of the opinion that they did not call for any interference by the learned Judges of the High Court.24. | 1[ds]11. We are clearly of the opinion that the principle of the Full Bench decision cited does not apply to the application before us and that the appeal wasare clearly of the view that it makes no difference. The same matter might be viewed from a slightly different angle. The scheme-decree itself might have contained a provision granting liberty to a party to the decree to move the Court by an "application" for the modification of the scheme in stated contingencies. If in pursuance of such liberty reserved an application were made to amend the scheme-decree, the resultant order though passed on an "application" would certainly be an amended decree against which an appeal would lie under Section 96 of the Civil Procedure Code. We need only add that the legality of such a reservation of liberty has recently been upheld by this Court. If the reservation of power or the liberty in the decree would produce such a result and render the amendment of the scheme an amended decree so as to satisfy the definition of a decree within S. 2(2) of the Civil Procedure Code, it appears to us that it makes no difference that such a liberty to move the Court to modify the decree is conferred not by the scheme decree but by an independent enactment such as the Act now before us. In the circumstances, we consider that the appeal by the Board to the High Court was competent and that the learned Judges had jurisdiction to entertain and deal with the appeal.In view, however, of the circumstances to be presently mentioned we consider that it is not necessary to pursue this line of argument. The appellants did not dispute that the share of dibbi collections etc. and other items of perquisites which had been fixed by custom and usage was really a remuneration for the the services performed. If that were so, it would follow that a radical change in circumstances might justify its revision. It might be upward or it might be downward. This position also was not disputed by learned Counsel. But learned Counsel was well founded in his submission that on the pleadings in the case and on the evidence that was led, there was no justification for the High Court to interfere with paragraph 14 of the scheme as framed by the learned District Judge. It would be noticed that the learned District Judge had, in that paragraph, after making provisions else-where for safeguarding the interests of the temple and for streamlining the administration, allowed to the archakas the remuneration to which they were held entitled by custom and usage which had been proved to be established after contest in Courts. In O.P. 76 of 1947 which had been filed by the Board seeking modification of the scheme settled in O.S. 1 of 1925 they stated in paragraph 7(g) whose terms we shallreasoning of the learned Judges, therefore, that the remuneration therefore enjoyed by the archakas should be disallowed to them because of the vagueness of the items was not open on the pleadings and was not justified by the facts in these circumstances we consider that the learned Judges were in error in modifying cl. 14 of the scheme framed by the learned Districtconditions set out in para 17 therefore were just both as regards the institution as well as the officeholders and gave effect to the customary rights and obligations of both. But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to him for such service. That, as we have pointed out, was not even the relief claimed in the application - assuming that such relief was claimable and could have been granted by the Court functioning under the Act having regard to the terms of S. 79 We have extracted earlier, a mater about which we prefer not to express any opinion.The learned Judges themselves appeared to recognise that the office being hereditary they could not abolish it. But if this were so, it was not proper to direct the virtual abolition of this office and depriving the officeholder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi collection was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment of an executive officer would not by itself eliminate the need for a Karnam and the performance of the duties which custom and usage laid on him. We agree with him in this submission. In the circumstances, we are no justification for reducing his remuneration to a nominal figure. We consider the directions given by the learned District Judge proper and sound and are clearly of the opinion that they did not call for any interference by the learned Judges of the High Court. | 1 | 8,056 | 868 | ### Instruction:
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the institution. "20. The learned judges of the High Court modified paragraph 17 by depriving the karnam of his share in the dibbi collections, even if he chose to perform duties personally and after the modification the paragraph read:"The karnam shall be entitled to a salary of Rs. 25 / - per mensem. He may appoint a deputy in his place who should be a person acceptable to the executive officer. "21. The reasons assigned for making this modification were two: (11) As a result of the modifications effected by the learned District Judge as regards which no objection was raised, provision had been made for the appointment of an executive officer whose duty it was to keep regular accounts, which would show the particulars of the offerings made in the dibbi from which the share due to the archakas could be computed, the karnam s duties and responsibilities had been lessened, if not eliminated. (2) Since the karnam, as a matter of practice, discharged his duties through deputies appointed by him, it was not necessary that the trustees should insist upon his personal attendance and the temple might therefore benefit from the practical abolition of his hereditary office the learned Counsel for the appellant contests the correctness of this approach to the problem and we agree with him that the learned Judges were in error in modifying S.17 of the scheme in the circumstances of the case. The office of Karnam was held by hereditary right and without entering into a discussion of the question as to whether such an office could be abolished and if so, in what circumstances, (sic) there was no prayer in the application by the Board to abolish that office and along with it the right of the karnam to the customary emoluments. The averment in paragraph 8(g) which we have extracted earlier, was (a) a complaint that the Karnam employed deputies on a nominal salary paid by him and that the work of these deputies was unsatisfactory, (b) Consequent on this, there was a prayer for a direction whereby when the karnam entrusted his duties to a deputy, the Karnam should not be entitled to the customary remuneration of an 1 / 16th part in the half share of the dibbi collections which pertained to the temple but only to the actual wages paid to the deputy. The subject-matter of the dispute which had to be resolved by the District Court and of the High Court on appeal was only whether the scheme framed in O.S. 1 of 1925 should be modified so as to provide for the payment of a lesser remuneration where the karnam employed a deputy. The learned District Judge had considered these matters and had given his directions in paragraph 17 of the scheme.22. The learned Judges of the High Court, however, did not address themselves to the pleadings and to the only matter in controversy before them viz. (1) should the karnam be entitled to appoint deputies to perform his duties and if so, in what circumstances and subject to what conditions, (2) In such an event what should be the remuneration payable to the karnam. Instead they proceeded practically to abolish the hereditary office and permitted him a nominal remuneration. It is unnecessary to consider whether it was such a drastic change that was intended to be urged in the relevant ground of appeal to the High Court which we have set out earlier, for we are clearly of the opinion that the learned Judges were in error in modifying in the manner they did para. 17 of the scheme. Let us see the actual effect of para. 17 of the scheme as framed by the learned District Judge. He recognised the customary remuneration of the office-holder. But that remuneration was not by custom intended to be a sine cure, to be drawn and enjoyed by the Karnam, he being at liberty to appoint a deputy at a nominal salary to perform the duties of the office. Normally the Karnam himself had to perform the duties and it was only when owing to unavoidable reason he could not do so that custom sanctioned the employment of deputy. By the order that he passed he recognised this also and made it incumbent on the Karnam to do duties personally in order to entitle him to claim the customary remuneration. The conditions set out in para 17 therefore were just both as regards the institution as well as the officeholders and gave effect to the customary rights and obligations of both. But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to him for such service. That, as we have pointed out, was not even the relief claimed in the application - assuming that such relief was claimable and could have been granted by the Court functioning under the Act having regard to the terms of S. 79 We have extracted earlier, a mater about which we prefer not to express any opinion.23. The learned Judges themselves appeared to recognise that the office being hereditary they could not abolish it. But if this were so, it was not proper to direct the virtual abolition of this office and depriving the officeholder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi collection was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment of an executive officer would not by itself eliminate the need for a Karnam and the performance of the duties which custom and usage laid on him. We agree with him in this submission. In the circumstances, we are no justification for reducing his remuneration to a nominal figure. We consider the directions given by the learned District Judge proper and sound and are clearly of the opinion that they did not call for any interference by the learned Judges of the High Court.24.
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11. We are clearly of the opinion that the principle of the Full Bench decision cited does not apply to the application before us and that the appeal wasare clearly of the view that it makes no difference. The same matter might be viewed from a slightly different angle. The scheme-decree itself might have contained a provision granting liberty to a party to the decree to move the Court by an "application" for the modification of the scheme in stated contingencies. If in pursuance of such liberty reserved an application were made to amend the scheme-decree, the resultant order though passed on an "application" would certainly be an amended decree against which an appeal would lie under Section 96 of the Civil Procedure Code. We need only add that the legality of such a reservation of liberty has recently been upheld by this Court. If the reservation of power or the liberty in the decree would produce such a result and render the amendment of the scheme an amended decree so as to satisfy the definition of a decree within S. 2(2) of the Civil Procedure Code, it appears to us that it makes no difference that such a liberty to move the Court to modify the decree is conferred not by the scheme decree but by an independent enactment such as the Act now before us. In the circumstances, we consider that the appeal by the Board to the High Court was competent and that the learned Judges had jurisdiction to entertain and deal with the appeal.In view, however, of the circumstances to be presently mentioned we consider that it is not necessary to pursue this line of argument. The appellants did not dispute that the share of dibbi collections etc. and other items of perquisites which had been fixed by custom and usage was really a remuneration for the the services performed. If that were so, it would follow that a radical change in circumstances might justify its revision. It might be upward or it might be downward. This position also was not disputed by learned Counsel. But learned Counsel was well founded in his submission that on the pleadings in the case and on the evidence that was led, there was no justification for the High Court to interfere with paragraph 14 of the scheme as framed by the learned District Judge. It would be noticed that the learned District Judge had, in that paragraph, after making provisions else-where for safeguarding the interests of the temple and for streamlining the administration, allowed to the archakas the remuneration to which they were held entitled by custom and usage which had been proved to be established after contest in Courts. In O.P. 76 of 1947 which had been filed by the Board seeking modification of the scheme settled in O.S. 1 of 1925 they stated in paragraph 7(g) whose terms we shallreasoning of the learned Judges, therefore, that the remuneration therefore enjoyed by the archakas should be disallowed to them because of the vagueness of the items was not open on the pleadings and was not justified by the facts in these circumstances we consider that the learned Judges were in error in modifying cl. 14 of the scheme framed by the learned Districtconditions set out in para 17 therefore were just both as regards the institution as well as the officeholders and gave effect to the customary rights and obligations of both. But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to him for such service. That, as we have pointed out, was not even the relief claimed in the application - assuming that such relief was claimable and could have been granted by the Court functioning under the Act having regard to the terms of S. 79 We have extracted earlier, a mater about which we prefer not to express any opinion.The learned Judges themselves appeared to recognise that the office being hereditary they could not abolish it. But if this were so, it was not proper to direct the virtual abolition of this office and depriving the officeholder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi collection was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment of an executive officer would not by itself eliminate the need for a Karnam and the performance of the duties which custom and usage laid on him. We agree with him in this submission. In the circumstances, we are no justification for reducing his remuneration to a nominal figure. We consider the directions given by the learned District Judge proper and sound and are clearly of the opinion that they did not call for any interference by the learned Judges of the High Court.
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Mahanadi Coal Fields Ltd. & Another Vs. Mathias Oram & Others | the discharge of their duties in terms of the scheme."4. In pursuance of the orders of this Court, a report was submitted by Justice Parichha which was accepted by this Court but the implementation thereof still remained incomplete.5. Learned Amicus has submitted a report dated 4th July 2017 in respect of outstanding issues and has made recommendations as follows:-"(i) As far as any compensation amount which is lying in fixed deposits is concerned, the same must be accounted for at periodic intervals jointly by the Collector as well as by a senior officer of MCL. The said amounts must be safeguarded suitably by the Commission and the Commission would be at liberty to seek appropriate direction from this Court as and when its work is completed.(ii) Issue directions to the Collector, Sundargarh as well as the Chairman and Managing Director of MCL to ensure disbursement of compensation to all the beneficiaries of the 8 villages (namely Balinga, Bankibahal, Garjan Bahal, Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) on or before 31st July 2017, and to ensure disbursement of compensation to all the beneficiaries of the 2 villages, (namely Siarmal and Bangurkela) on or before 31st November, 2017.(iii) The Divisional Commissioner, Sambalpur, to make adequate efforts to trace the persons who have not turned up to receive compensation. The Collectors concerned will contact their counterparts in States where awardees are known to migrate, and adopt suitable methodologies to identify the concerned person.(iv) Issue directions to the authorities of MCL to furnish a list, jointly verified by the Collector and the Assistant Revenue Officer indicating the names of the all awardees of compensation, the dates when they were entitled to payment, the actual dates when payment was made and whether that payment included interest, to the Claims Commission as well as the Learned Counsel appearing on behalf of the Respondent parties.(v) It may be clarified that even with respect two villages (namely Siarmal and Bangurkela), when the payment of compensation is made, interest, as payable, will be determined to be paid in accordance with Orders of the Honble Supreme Court. Payment of interest in respect of delayed payment will be undertaken if interest was not paid in accordance with the Orders of the Court.(vi) where genuine cases of fraud and impersonation are alleged by MCL, the Claims Commission be empowered to examine such cases and forward recommendations to the Learned Amicus.(vii) Direct the authorities of MCL to complete the process of granting employment, payment of monetary compensation in lieu of employment, including annuities on or before 31st July 2017 with respect to 8 villages (namely Balinga, Bankibahal, Garjan Bahal, Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) and on or before 31st November, 2017 with respect to 2 villages (namely Siarmal and Bangurkela).(viii) Issue directions to the Chairman and Managing Director of MCL to immediately stop any illegal mining being undertaken by MCL on agricultural lands in any of the villages.(ix) Issue directions to MCL authorities to complete the development of resettlement colonies in the two sites (namely Barapalli II and Chatanpalli) on or before 30th September, 2017.(x) Once even one of the rehabilitation sites is ready and the site has been certified as suitable for shifting by the Claims Commission, the Honble Claims Commission may pay pass appropriate orders enabling the shifting of those persons who are entitled to R&R Benefits in the said site.In view of the above, it is submitted that the following general directions are also necessary -(xi) That the Managing Director of MCL either himself or by a designated officer will be personally responsible for the implementation of the directions of the Supreme Court and the orders by the Commission.(xii) Suitable steps will be taken by the MCL to complete the process of disbursement of compensation.(xiii) Compensation will be disbursed to the satisfaction of the Commission.(xiv) Employment must be offered to all those left out (Categories I & II in any event) and such employment must be offered and completed to the satisfaction of the Commission.(xv) Rehabiliation steps must be completed within a period of nine months from today.(xvi) Only upon the rehabilitation being certified by the Commission and experts that a notice can be issued by the Commission asking the oustees to shift to alternate sites.(xvii) Fresh notices be issued by the Commission in respect of awardees who have not received monies(xviii) In respect of awardees who have not been paid money in time, interest is payable and such interest be awarded at a rate not exceeding 15% by the Commission calculating the same with reference to the orders of this Honble Court.(xix) It is also necessary that a list of all the awardees including the names and the amounts disbursed to them, jointly signed by the Collector and MCL, must be made available to the Claims Commission as well as counsel for the oustees forthwith,(xx) In so far as acquisition of additional land for resettlement and rehabilitation is concerned, suitable assistance will be offered by the State authorities including the Divisional Commissioner Sambalpur."6. We are broadly in agreement with the recommendations made by the learned Amicus. We, however, leave it open to the appellants or any other affected parties to put forward their objections before the High Court/Commission since we are inclined to leave such matters to be dealt with by the High Court/Commission.7. With regard to recommendation XIV, learned counsel for the appellants has an objection on the ground that the issue is covered by the Orrisa Rehabilitation and Resettlement Policy 2006. Learned Amicus states that the recommendation is consistent with the report of Parichha Commission which has already been accepted by this Court. This aspect of the matter may be gone into by the High Court, if necessary.8. One of the issues which is surviving is as regards constructed housing on the land allocated for rehabilitation and resettlement by the affected persons. Mr. Dhankar, learned senior counsel appearing for the appellants states that it is not clear whether all such persons want constructed housing or not. | 1[ds]6. We are broadly in agreement with the recommendations made by the learned Amicus. We, however, leave it open to the appellants or any other affected parties to put forward their objections before the High Court/Commission since we are inclined to leave such matters to be dealt with by the High Court/Commission.7. With regard to recommendation XIV, learned counsel for the appellants has an objection on the ground that the issue is covered by the Orrisa Rehabilitation and Resettlement Policy 2006. Learned Amicus states that the recommendation is consistent with the report of Parichha Commission which has already been accepted by this Court. This aspect of the matter may be gone into by the High Court, if | 1 | 2,535 | 130 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the discharge of their duties in terms of the scheme."4. In pursuance of the orders of this Court, a report was submitted by Justice Parichha which was accepted by this Court but the implementation thereof still remained incomplete.5. Learned Amicus has submitted a report dated 4th July 2017 in respect of outstanding issues and has made recommendations as follows:-"(i) As far as any compensation amount which is lying in fixed deposits is concerned, the same must be accounted for at periodic intervals jointly by the Collector as well as by a senior officer of MCL. The said amounts must be safeguarded suitably by the Commission and the Commission would be at liberty to seek appropriate direction from this Court as and when its work is completed.(ii) Issue directions to the Collector, Sundargarh as well as the Chairman and Managing Director of MCL to ensure disbursement of compensation to all the beneficiaries of the 8 villages (namely Balinga, Bankibahal, Garjan Bahal, Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) on or before 31st July 2017, and to ensure disbursement of compensation to all the beneficiaries of the 2 villages, (namely Siarmal and Bangurkela) on or before 31st November, 2017.(iii) The Divisional Commissioner, Sambalpur, to make adequate efforts to trace the persons who have not turned up to receive compensation. The Collectors concerned will contact their counterparts in States where awardees are known to migrate, and adopt suitable methodologies to identify the concerned person.(iv) Issue directions to the authorities of MCL to furnish a list, jointly verified by the Collector and the Assistant Revenue Officer indicating the names of the all awardees of compensation, the dates when they were entitled to payment, the actual dates when payment was made and whether that payment included interest, to the Claims Commission as well as the Learned Counsel appearing on behalf of the Respondent parties.(v) It may be clarified that even with respect two villages (namely Siarmal and Bangurkela), when the payment of compensation is made, interest, as payable, will be determined to be paid in accordance with Orders of the Honble Supreme Court. Payment of interest in respect of delayed payment will be undertaken if interest was not paid in accordance with the Orders of the Court.(vi) where genuine cases of fraud and impersonation are alleged by MCL, the Claims Commission be empowered to examine such cases and forward recommendations to the Learned Amicus.(vii) Direct the authorities of MCL to complete the process of granting employment, payment of monetary compensation in lieu of employment, including annuities on or before 31st July 2017 with respect to 8 villages (namely Balinga, Bankibahal, Garjan Bahal, Gopalpur, Karlikachar, Kunda, Sardega and Tiklipada) and on or before 31st November, 2017 with respect to 2 villages (namely Siarmal and Bangurkela).(viii) Issue directions to the Chairman and Managing Director of MCL to immediately stop any illegal mining being undertaken by MCL on agricultural lands in any of the villages.(ix) Issue directions to MCL authorities to complete the development of resettlement colonies in the two sites (namely Barapalli II and Chatanpalli) on or before 30th September, 2017.(x) Once even one of the rehabilitation sites is ready and the site has been certified as suitable for shifting by the Claims Commission, the Honble Claims Commission may pay pass appropriate orders enabling the shifting of those persons who are entitled to R&R Benefits in the said site.In view of the above, it is submitted that the following general directions are also necessary -(xi) That the Managing Director of MCL either himself or by a designated officer will be personally responsible for the implementation of the directions of the Supreme Court and the orders by the Commission.(xii) Suitable steps will be taken by the MCL to complete the process of disbursement of compensation.(xiii) Compensation will be disbursed to the satisfaction of the Commission.(xiv) Employment must be offered to all those left out (Categories I & II in any event) and such employment must be offered and completed to the satisfaction of the Commission.(xv) Rehabiliation steps must be completed within a period of nine months from today.(xvi) Only upon the rehabilitation being certified by the Commission and experts that a notice can be issued by the Commission asking the oustees to shift to alternate sites.(xvii) Fresh notices be issued by the Commission in respect of awardees who have not received monies(xviii) In respect of awardees who have not been paid money in time, interest is payable and such interest be awarded at a rate not exceeding 15% by the Commission calculating the same with reference to the orders of this Honble Court.(xix) It is also necessary that a list of all the awardees including the names and the amounts disbursed to them, jointly signed by the Collector and MCL, must be made available to the Claims Commission as well as counsel for the oustees forthwith,(xx) In so far as acquisition of additional land for resettlement and rehabilitation is concerned, suitable assistance will be offered by the State authorities including the Divisional Commissioner Sambalpur."6. We are broadly in agreement with the recommendations made by the learned Amicus. We, however, leave it open to the appellants or any other affected parties to put forward their objections before the High Court/Commission since we are inclined to leave such matters to be dealt with by the High Court/Commission.7. With regard to recommendation XIV, learned counsel for the appellants has an objection on the ground that the issue is covered by the Orrisa Rehabilitation and Resettlement Policy 2006. Learned Amicus states that the recommendation is consistent with the report of Parichha Commission which has already been accepted by this Court. This aspect of the matter may be gone into by the High Court, if necessary.8. One of the issues which is surviving is as regards constructed housing on the land allocated for rehabilitation and resettlement by the affected persons. Mr. Dhankar, learned senior counsel appearing for the appellants states that it is not clear whether all such persons want constructed housing or not.
### Response:
1
### Explanation:
6. We are broadly in agreement with the recommendations made by the learned Amicus. We, however, leave it open to the appellants or any other affected parties to put forward their objections before the High Court/Commission since we are inclined to leave such matters to be dealt with by the High Court/Commission.7. With regard to recommendation XIV, learned counsel for the appellants has an objection on the ground that the issue is covered by the Orrisa Rehabilitation and Resettlement Policy 2006. Learned Amicus states that the recommendation is consistent with the report of Parichha Commission which has already been accepted by this Court. This aspect of the matter may be gone into by the High Court, if
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P. D. Sharma Vs. State Bank Of India | proceedings before a tribunal in respect of any industrial dispute, no employer shall (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; (b) discharge or punish, whether by dismissal or otherwise, any work men concerned in such dispute; save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be." The amended section dropped the exception made in respect of misconduct not connected with the dispute. This change in the law prevented the employers from discharging or punishing their employees even in respect of a misconduct not connected with the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956. 12. In Strawboard Manufacturing Co. v. Gobind, 1962 Supp (3) SCR 618 at p. 623 = (AIR 1962 SC 1500 at pp. 1502 1503) this court observed:"The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that S. 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workmen who may be discharged or dismissed during the pendency of a depute on account of some matter unconnected with the dispute. Consequently S. 33 was redrafted in 1956 and considerably expanded". 13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it. 14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided. 15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end. | 0[ds]Though in his special leave application the appellant mentioned the fact that his application under Article 226 had been dismissed by the High Court, he failed to mention the fact that his application for a certificate under Articles 132 and 133 was pending before the High Court.We were assured by Mr. A. K. Sen learned counsel for the appellant that this omission was due to an erroneous impression of the law on the part of the Advocate on record and there was no intention to keep back that fact from this court.As seen earlier the fact that the appellants application under Article 226 had been dismissed was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression of a fact. Under these circumstances, we do not think that a case is made out to revoke the special leave granted13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end. | 0 | 4,456 | 779 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
proceedings before a tribunal in respect of any industrial dispute, no employer shall (a) alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; (b) discharge or punish, whether by dismissal or otherwise, any work men concerned in such dispute; save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be." The amended section dropped the exception made in respect of misconduct not connected with the dispute. This change in the law prevented the employers from discharging or punishing their employees even in respect of a misconduct not connected with the industrial dispute. That was a serious inroad into the disciplinary jurisdiction of the employer. It is possibly with a view to avoid unnecessary interference with the rights of the employers the section was amended by Act 36 of 1956. 12. In Strawboard Manufacturing Co. v. Gobind, 1962 Supp (3) SCR 618 at p. 623 = (AIR 1962 SC 1500 at pp. 1502 1503) this court observed:"The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that S. 33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as to whether such alteration or such an order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority. It seems to have been felt therefore that the stringency of the provision should be softened and the employer should be permitted to make changes in conditions of service etc. which were not connected with the dispute pending before an industrial tribunal. For the same reason it was felt that the authority of the employer to dismiss or discharge a workman should not be completely taken away where the dismissal or discharge was dependent on the matters unconnected with the dispute pending before any tribunal. At the same time it seems to have been felt that some safeguards should be provided for a workmen who may be discharged or dismissed during the pendency of a depute on account of some matter unconnected with the dispute. Consequently S. 33 was redrafted in 1956 and considerably expanded". 13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it. 14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided. 15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end.
### Response:
0
### Explanation:
Though in his special leave application the appellant mentioned the fact that his application under Article 226 had been dismissed by the High Court, he failed to mention the fact that his application for a certificate under Articles 132 and 133 was pending before the High Court.We were assured by Mr. A. K. Sen learned counsel for the appellant that this omission was due to an erroneous impression of the law on the part of the Advocate on record and there was no intention to keep back that fact from this court.As seen earlier the fact that the appellants application under Article 226 had been dismissed was mentioned in the special leave application. Hence the omission in question cannot be considered as a deliberate suppression of a fact. Under these circumstances, we do not think that a case is made out to revoke the special leave granted13. By enacting S. 33 the Parliament wanted to ensure a fair and satisfactory enquiry of an industrial dispute undisturbed by any action on the part of the employer which could create fresh cause for disharmony between him and his employees. The object of S. 33 is that during the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. But then distinction was made between matters connected with the industrial dispute and those unconnected with it14. While construing the scope of sub-s.(3) of S. 33 we have to bear in mind the fact that under the common law the employer has a right to punish his employee for misconduct. Therefore all that we have to see is, to what extent that right is taken away by sub-s. (3) of S. 33. There is no doubt that at the time the application in question was made an industrial dispute was pending between the respondent and its employees. It is admitted that the appellant is a protected workman.He had not been discharged or punished before the industrial dispute was decided, though no doubt the respondent had proposed to dismiss him after obtaining the necessary permission from the tribunal. The application for permission to dismiss him was made during the pendency of the principal dispute. No such permission would have been necessary if no industrial dispute between the respondent and its employees was pending. Hence the sole reason for that application was the pendency of the industrial dispute. Once the industrial dispute was decided, the ban placed on the common law, statutory or contractual rights of the respondent stood removed and it was free to exercise those rights. Thereafter there was no need to take anybodys permission to exercise its rights. In other words, the limitation placed on the respondents rights by sub-s. (3) of 3. 33 disappeared the moment the industrial dispute was decided. We are in agreement with the tribunal that it had no competence to consider the application made by the respondent after the industrial dispute was decided15. The learned Solicitor General tried to support the conclusion of the tribunal on yet another ground. His contention was that the permission sought for could have been granted only by the authority before which the industrial dispute was pending. In the instant case that dispute was pending before the National Tribunal at Bombay. Therefore according to him the permission asked for could not have been given either by the labour court at Delhi or by the Labour Court at Lucknow. The language of sub-s. (3) of S. 33 prima facie lends support to this contention. But in resisting that contention Mr. Sen relied on S. 33-B which confers power on the government and under certain conditions on the Tribunal or National Tribunal as the case may be to transfer any proceeding pending before them to labour court. The language of this provision is not in harmony with that in sub-ss. (1) and (3) of S. 33. The learned Solicitor General urged that to harmoniously construe these provisions we must confine the operation of S. 33-B only to cases falling under sub-s. (2) of S. 33.It is not necessary to decide this controversy in this case in view of our conclusion that the Labour court at Lucknow was right in its conclusion that it had no competence to grant the permission prayed for as the industrial dispute had come to an end.
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Divya Prakash Vs. Kultar Chand Rana & Another | and a salary wag provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honorary capacity.3. There is a further fact which shows that the contention of the appellant that the post carried a scale of pay is not correct. This contention that the post carried a scale of pay is based on Resolution No. 12 passed by the Board on January 17, 1970 fixing a salary of Rs. 1600-1800 per month for the Chairman. We are satisfied that the Board was not competent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the contention on behalf of the appellant that Section 10, Clause (18) of the Himachal Pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in Clauses 1 to 17 of the section or to be-one for the purpose of carrying into effect the - provisions of the Act. Though under Section 17 the Chairman is also called an officer of the Board, he is under Section 19 the administrative head of the Board. He is to call the meeting of the Board and preside over it and is entitled in any emergency that requires an immediate action to take such action as he deems necessary. The Secretary to the Board is also appointed by the Government upon such conditions and for such period as to the Government may deem fit under Section 22. We presume that this section enables the Government to fix his scale pay also. Under Section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to the Board on such conditions and for such periods as the Government may deem fit, which as in the case of the Secretary would include the power to fix their scale of pay. This is clear from the fact that sub-section (4) of Section 23 lays down that the qualifications, conditions of service and the scale of pay of officers and servants of the Board, other than Deputy Secretary, Assistant Secretary and Secretary would be determined by the Regulations. This sub-section when it enables the Board to make regulations regarding qualifications, conditions of service and scales of pay of officers and servants of the Board other than the Deputy Secretary and Assistant Secretary, applies only to the cases of officers lower in rank than these officers mentioned. The presence of the word officer in that sub-section cannot be held to refer to the Chairman also merely because he is also called an officer of the Board under Section 17. It would be curious if the Act while conferring on the Government the power to specify the conditions of service including the scales of pay of Deputy Secretary, Assistant Secretary and Secretary, it had left to the Board to determine the scale of pay of the Chairman by clubbing him along with officers and servants of the- Board lower in rank than even the Assistant Secretary. We are clearly of opinion that Section 23 (4) does not enable the Board to determine the scales of pay of the Chairman. Even in the case of other officers and servants the scale of pay is to be determined by Regulations. The first Regulations were made by the Government under Section 27 and in the Regulations so made there is no provision for the scale of pay of the Chairman of the Board. Nor have we been shown any regulation made by the Board fixing the scale of pay of the Chairman. A mere resolution of the Board, which is concerned with the carrying on of the day-to-day administration of the Board, cannot have the effect of fixing the scale of pay of the Chairman. We do not think that Section 26 (2) (i), which relates to the power of the Board to make Regulations for the appointment of officers, clerks and other servants of the Board and the conditions of their service can cover the Chairman because there is no question of the Board being competent to deal with the appointment or conditions of service of the Chairman. Clause (p) of sub-section (2) of S. 26 speaks of the emoluments and allowances of the members of the Board and all its Committees. This clause when it refers to members of the Board cannot refer to the Chairman. The distinction between the Chairman and the members is brought out in Section 4 which says that the "Board shall consist of the Chairman nominated in accordance with Section 18 and of the following members" and then goes on to enumerate the members. Though generally speaking the pay of a person can be said to be his emoluments, the emoluments and allowances referred to in clause (p) cannot refer to the scale of pay. The Act does not contemplate any scale of pay for members. On a close reading of the provisions of the Act we are satisfied that there is no provision in the Act enabling the Board to fix a scale of pay for the Chairman by a resolution. Therefore, it cannot be said that the resolution has validly fixed a scale of pay for the Chairman and, therefore, it cannot be said that the post of the Chairman carries with it a scale of pay.4. In any case as far as the 1st respondent is concerned the test for deciding whether he holds an office of profit is very simple. It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board. In the face of his order of appointment such a claim would not be upheld. | 0[ds]The 1st respondent was nominated Chairman of the Board of School Education of Himachal Pradesh in the year 1969 by the Himachal Pradesh Government under the provisions of the Himachal Pradesh Board of School Education Act, 1969. At all relevant tunes he was holding that post. Under Section 18 of the Act the Chairman is nominated by the Government. The Board is constituted by the Government under Section 3 of the Act. Though there is nothing said in the Act about the authority competent to remove the Chairman from his office it may be assumed for the purposes of this cave that the Government was competent to do so. There can be very little dispute and indeed it is not disputed that the office of the Chairman of the Board is an office under the State Government. The only question is whether it is an office of profit. Admittedly, the 1st respondent was not in receipt of a salary. The order appointing him to the post of Chairman makes it clear that he was appointed only in an honorary capacity. The fact that he was entitled to receive travelling and daily allowance in the course of the discharge of his duties as Chairman would not be a disqualification because of the provisions of Section 3 (m) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, and this is notare unable to agree. Thequestion is whether the holding of the office has resulted in any profit to the holder of that office, how, ever small that profit may be.We have discussed this question at great length in the judgment delivered by us today in C. A. No. 2365 of 1972 = (reported in AIR 1975 SC 575 ).In the absence of any profit accruing to the 1st respondent as a result of the holding of the office of Chairman it cannot be said that he was holding an office of profit. This is not even a case where the Chairman was appointed to an office and a salary wag provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honoraryare satisfied that the Board was not competent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the contention on behalf of the appellant that Section 10, Clause (18) of the Himachal Pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in Clauses 1 to 17 of the section or tofor the purpose of carrying into effect theprovisions of the Act. Though under Section 17 the Chairman is also called an officer of the Board, he is under Section 19 the administrative head of the Board. He is to call the meeting of the Board and preside over it and is entitled in any emergency that requires an immediate action to take such action as he deems necessary. The Secretary to the Board is also appointed by the Government upon such conditions and for such period as to the Government may deem fit under Section 22. We presume that this section enables the Government to fix his scale pay also. Under Section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to the Board on such conditions and for such periods as the Government may deem fit, which as in the case of the Secretary would include the power to fix their scale of pay. This is clear from the fact that(4) of Section 23 lays down that the qualifications, conditions of service and the scale of pay of officers and servants of the Board, other than Deputy Secretary, Assistant Secretary and Secretary would be determined by the Regulations. Thiswhen it enables the Board to make regulations regarding qualifications, conditions of service and scales of pay of officers and servants of the Board other than the Deputy Secretary and Assistant Secretary, applies only to the cases of officers lower in rank than these officers mentioned. The presence of the word officer in thatcannot be held to refer to the Chairman also merely because he is also called an officer of the Board under Section 17. It would be curious if the Act while conferring on the Government the power to specify the conditions of service including the scales of pay of Deputy Secretary, Assistant Secretary and Secretary, it had left to the Board to determine the scale of pay of the Chairman by clubbing him along with officers and servants of theBoard lower in rank than even the Assistant Secretary. We are clearly of opinion that Section 23 (4) does not enable the Board to determine the scales of pay of the Chairman. Even in the case of other officers and servants the scale of pay is to be determined by Regulations. The first Regulations were made by the Government under Section 27 and in the Regulations so made there is no provision for the scale of pay of the Chairman of the Board. Nor have we been shown any regulation made by the Board fixing the scale of pay of the Chairman. A mere resolution of the Board, which is concerned with the carrying on of theadministration of the Board, cannot have the effect of fixing the scale of pay of the Chairman. We do not think that Section 26 (2) (i), which relates to the power of the Board to make Regulations for the appointment of officers, clerks and other servants of the Board and the conditions of their service can cover the Chairman because there is no question of the Board being competent to deal with the appointment or conditions of service of the Chairman. Clause (p) of(2) of S. 26 speaks of the emoluments and allowances of the members of the Board and all its Committees. This clause when it refers to members of the Board cannot refer to the Chairman. The distinction between the Chairman and the members is brought out in Section 4 which says that the "Board shall consist of the Chairman nominated in accordance with Section 18 and of the following members" and then goes on to enumerate the members. Though generally speaking the pay of a person can be said to be his emoluments, the emoluments and allowances referred to in clause (p) cannot refer to the scale of pay. The Act does not contemplate any scale of pay for members. On a close reading of the provisions of the Act we are satisfied that there is no provision in the Act enabling the Board to fix a scale of pay for the Chairman by a resolution. Therefore, it cannot be said that the resolution has validly fixed a scale of pay for the Chairman and, therefore, it cannot be said that the post of the Chairman carries with it a scale of pay.4. In any case as far as the 1st respondent is concerned the test for deciding whether he holds an office of profit is very simple. It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board. In the face of his order of appointment such a claim would not be upheld. | 0 | 1,686 | 1,364 | ### Instruction:
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and a salary wag provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honorary capacity.3. There is a further fact which shows that the contention of the appellant that the post carried a scale of pay is not correct. This contention that the post carried a scale of pay is based on Resolution No. 12 passed by the Board on January 17, 1970 fixing a salary of Rs. 1600-1800 per month for the Chairman. We are satisfied that the Board was not competent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the contention on behalf of the appellant that Section 10, Clause (18) of the Himachal Pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in Clauses 1 to 17 of the section or to be-one for the purpose of carrying into effect the - provisions of the Act. Though under Section 17 the Chairman is also called an officer of the Board, he is under Section 19 the administrative head of the Board. He is to call the meeting of the Board and preside over it and is entitled in any emergency that requires an immediate action to take such action as he deems necessary. The Secretary to the Board is also appointed by the Government upon such conditions and for such period as to the Government may deem fit under Section 22. We presume that this section enables the Government to fix his scale pay also. Under Section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to the Board on such conditions and for such periods as the Government may deem fit, which as in the case of the Secretary would include the power to fix their scale of pay. This is clear from the fact that sub-section (4) of Section 23 lays down that the qualifications, conditions of service and the scale of pay of officers and servants of the Board, other than Deputy Secretary, Assistant Secretary and Secretary would be determined by the Regulations. This sub-section when it enables the Board to make regulations regarding qualifications, conditions of service and scales of pay of officers and servants of the Board other than the Deputy Secretary and Assistant Secretary, applies only to the cases of officers lower in rank than these officers mentioned. The presence of the word officer in that sub-section cannot be held to refer to the Chairman also merely because he is also called an officer of the Board under Section 17. It would be curious if the Act while conferring on the Government the power to specify the conditions of service including the scales of pay of Deputy Secretary, Assistant Secretary and Secretary, it had left to the Board to determine the scale of pay of the Chairman by clubbing him along with officers and servants of the- Board lower in rank than even the Assistant Secretary. We are clearly of opinion that Section 23 (4) does not enable the Board to determine the scales of pay of the Chairman. Even in the case of other officers and servants the scale of pay is to be determined by Regulations. The first Regulations were made by the Government under Section 27 and in the Regulations so made there is no provision for the scale of pay of the Chairman of the Board. Nor have we been shown any regulation made by the Board fixing the scale of pay of the Chairman. A mere resolution of the Board, which is concerned with the carrying on of the day-to-day administration of the Board, cannot have the effect of fixing the scale of pay of the Chairman. We do not think that Section 26 (2) (i), which relates to the power of the Board to make Regulations for the appointment of officers, clerks and other servants of the Board and the conditions of their service can cover the Chairman because there is no question of the Board being competent to deal with the appointment or conditions of service of the Chairman. Clause (p) of sub-section (2) of S. 26 speaks of the emoluments and allowances of the members of the Board and all its Committees. This clause when it refers to members of the Board cannot refer to the Chairman. The distinction between the Chairman and the members is brought out in Section 4 which says that the "Board shall consist of the Chairman nominated in accordance with Section 18 and of the following members" and then goes on to enumerate the members. Though generally speaking the pay of a person can be said to be his emoluments, the emoluments and allowances referred to in clause (p) cannot refer to the scale of pay. The Act does not contemplate any scale of pay for members. On a close reading of the provisions of the Act we are satisfied that there is no provision in the Act enabling the Board to fix a scale of pay for the Chairman by a resolution. Therefore, it cannot be said that the resolution has validly fixed a scale of pay for the Chairman and, therefore, it cannot be said that the post of the Chairman carries with it a scale of pay.4. In any case as far as the 1st respondent is concerned the test for deciding whether he holds an office of profit is very simple. It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board. In the face of his order of appointment such a claim would not be upheld.
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be.We have discussed this question at great length in the judgment delivered by us today in C. A. No. 2365 of 1972 = (reported in AIR 1975 SC 575 ).In the absence of any profit accruing to the 1st respondent as a result of the holding of the office of Chairman it cannot be said that he was holding an office of profit. This is not even a case where the Chairman was appointed to an office and a salary wag provided for him by the order of appointment or he was entitled to a salary as a result of the appointment and he gave up his right to the salary. The order of appointment itself was one made in an honoraryare satisfied that the Board was not competent to fix a scale of pay for the Chairman by a resolution. We are unable to accept the contention on behalf of the appellant that Section 10, Clause (18) of the Himachal Pradesh Board of School Education Act, 1968 enables the Board to fix the scale of pay of the Chairman. The fixing of the scale of pay of the Chairman cannot be said to be an act ancillary to any of the purposes mentioned in Clauses 1 to 17 of the section or tofor the purpose of carrying into effect theprovisions of the Act. Though under Section 17 the Chairman is also called an officer of the Board, he is under Section 19 the administrative head of the Board. He is to call the meeting of the Board and preside over it and is entitled in any emergency that requires an immediate action to take such action as he deems necessary. The Secretary to the Board is also appointed by the Government upon such conditions and for such period as to the Government may deem fit under Section 22. We presume that this section enables the Government to fix his scale pay also. Under Section 23 the Government is entitled to appoint Deputy Secretaries and Assistant Secretaries to the Board on such conditions and for such periods as the Government may deem fit, which as in the case of the Secretary would include the power to fix their scale of pay. This is clear from the fact that(4) of Section 23 lays down that the qualifications, conditions of service and the scale of pay of officers and servants of the Board, other than Deputy Secretary, Assistant Secretary and Secretary would be determined by the Regulations. Thiswhen it enables the Board to make regulations regarding qualifications, conditions of service and scales of pay of officers and servants of the Board other than the Deputy Secretary and Assistant Secretary, applies only to the cases of officers lower in rank than these officers mentioned. The presence of the word officer in thatcannot be held to refer to the Chairman also merely because he is also called an officer of the Board under Section 17. It would be curious if the Act while conferring on the Government the power to specify the conditions of service including the scales of pay of Deputy Secretary, Assistant Secretary and Secretary, it had left to the Board to determine the scale of pay of the Chairman by clubbing him along with officers and servants of theBoard lower in rank than even the Assistant Secretary. We are clearly of opinion that Section 23 (4) does not enable the Board to determine the scales of pay of the Chairman. Even in the case of other officers and servants the scale of pay is to be determined by Regulations. The first Regulations were made by the Government under Section 27 and in the Regulations so made there is no provision for the scale of pay of the Chairman of the Board. Nor have we been shown any regulation made by the Board fixing the scale of pay of the Chairman. A mere resolution of the Board, which is concerned with the carrying on of theadministration of the Board, cannot have the effect of fixing the scale of pay of the Chairman. We do not think that Section 26 (2) (i), which relates to the power of the Board to make Regulations for the appointment of officers, clerks and other servants of the Board and the conditions of their service can cover the Chairman because there is no question of the Board being competent to deal with the appointment or conditions of service of the Chairman. Clause (p) of(2) of S. 26 speaks of the emoluments and allowances of the members of the Board and all its Committees. This clause when it refers to members of the Board cannot refer to the Chairman. The distinction between the Chairman and the members is brought out in Section 4 which says that the "Board shall consist of the Chairman nominated in accordance with Section 18 and of the following members" and then goes on to enumerate the members. Though generally speaking the pay of a person can be said to be his emoluments, the emoluments and allowances referred to in clause (p) cannot refer to the scale of pay. The Act does not contemplate any scale of pay for members. On a close reading of the provisions of the Act we are satisfied that there is no provision in the Act enabling the Board to fix a scale of pay for the Chairman by a resolution. Therefore, it cannot be said that the resolution has validly fixed a scale of pay for the Chairman and, therefore, it cannot be said that the post of the Chairman carries with it a scale of pay.4. In any case as far as the 1st respondent is concerned the test for deciding whether he holds an office of profit is very simple. It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board. In the face of his order of appointment such a claim would not be upheld.
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PR. AL. M. M. Annamalai Chettiar Vs. Commissioner of Income-tax, Madras | question was unwarranted; (2) the appellant maintained regular accounts for all the years including the Japanese occupation period; the original cost of acquisition of the 3 properties was adopted for the purpose of business balance-sheets all these years; no loss on revaluation of the said assets by scaling down their values at any time was allowed in any of the earlier years by the Department; and, therefore, there was no justification for a departure in the year of account.4. He also contended that if the properties were purchased for dollars and sold for dollars, the fact of inflation or deflation of currency would be irrelevant in ascertaining the profits. That may be so in the case of a countrys currency but when a property is purchased and sold in different currencies, say Japanese and Malayan currencies as in the present case, it is not possible to ascertain the profit or loss unless the exchange or conversion rate is ascertained. When a property is purchased in one currency and sold in another currency, how can the profit or loss be ascertained unless the conversion rate of the two currencies is known? There should be a common standard. The two currencies in the present case are essentially different though they were current in the same country during the same or different periods. The extraordinary situation of two currencies co-existing during the occupation period or the situation of one property being purchased during the enemy occupation period in Japanese currency and sold in Malayan currency after the vacation of the enemy occupation cannot be equated with fluctuations in the value of a nationss currency. Unless the cost price expressed in Japanese currency is computed in terms of the Malayan currency, it is not possible to arrive at the real profit accrued to the assessee. That is exactly what the Income-tax Officer did and, in our view, that is the only correct basis.5. It is not correct to say that the income-tax Officer applied the said Ordinance to ascertain the profit, in the present case. The scheme and the detail, of the Ordinance have already been considered by us in Civil Appeals Nos. 55 of 1962, etc. The Ordinance was enacted for the purpose of scaling down the payments made by debtor; to creditors during the occupation period. A schedule was appended to the Ordinance providing a table of conversion of the depreciated Japanese currency into Malayan currency. In terms the Ordinance does not directly apply to the scaling down of the cost price of properties purchased in Japanese currency. But to ascertain the real profit, as we have stated earlier, it is necessary to adopt a reasonable conversion rate. The only material that was available to the Income-tax Officer was the Schedule appended to the Ordinance. Though that Schedule was appended to the Ordinance enacted for a different purpose, it was the result of a careful inquiry made by the appropriate and responsible authorities in Malaya. The Income-tax Officer was, therefore, justified in adopting that Schedule for the purpose of ascertaining the cost price of the properties purchased in Japanese currency and sold in the Malayan currency. The fact that the Income-tax Officer adopted some other method in the previous years-no material has been placed before us in regard to the method adopted by the Income-tax Officer-does not prevent him from ascertaining the correct method for the assessment year with which we are concerned.6. The questions raised before us were the subject-matter of the decision of the Madras High Court in (1959) 35 ITR 641 (Mad) . There, as here, the assessee, which carried on a moneylending business and had its head office in India and a brach in the Federated Malaya States, purchased some properties when Malaya was under enemy occupation and sold them after the vacation of the enemy occupation in Malayan currency. In order to ascertain the profits resulting from the sale for the purpose of assessment of the assessee for the fear 1952-53 the Department valued the cost of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The assessee contended that the cost price of the properties must be taken at the figure accepted by the Department for the purpose of the Government scheme. The High Court held that to ascertain the real profits the Department was right in computing the cost price of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The reason for the conclusion is stated thus at p. 649:"The purchase was paid for in Japanese currency. The sale price was realised in Malayan currency. There was no parity between the two on the date of purchase. Certainly the Japanese currency ceased to be in use on the date of sale. To arrive at a computation of profits or losses where property was purchased in one currency and sold in another, it should be obvious that there should be a common standard; in the circumstances of this case the purchase price had to be computed in terms of Malayan currency, in which the property was sold. "The principle adopted by the High Court appears to be unexceptionable. It accords with our view. Adverting to the second argument that the schedule to the Ordinance should be confined only to the scaling down of debts, the learned Judges pointed out at p. 650."The Report of the Select Committee which preceded the issue of the Malayan Ordinance has also been made part of the record. That showed that the Committee made a real attempt to ascertain the value of the Japanese currency in relation to the Malayan currency at every stage of the occupation period. Besides, we have to point out that no other basis of conversion was proposed by the assessee at any stage. We are unable to hold that the Department and the Tribunal were in error in adopting the conversion table furnished in the Schedule to the Malayan Ordinance."We also agree with this view. | 0[ds]6. The questions raised before us were the subject-matter of the decision of the Madras High Court in (1959) 35 ITR 641 (Mad) . There, as here, the assessee, which carried on a moneylending business and had its head office in India and a brach in the Federated Malaya States, purchased some properties when Malaya was under enemy occupation and sold them after the vacation of the enemy occupation in Malayan currency. In order to ascertain the profits resulting from the sale for the purpose of assessment of the assessee for the fear 1952-53 the Department valued the cost of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The assessee contended that the cost price of the properties must be taken at the figure accepted by the Department for the purpose of the Government scheme. The High Court held that to ascertain the real profits the Department was right in computing the cost price of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The reason for the conclusion is stated thus at p.purchase was paid for in Japanese currency. The sale price was realised in Malayan currency. There was no parity between the two on the date of purchase. Certainly the Japanese currency ceased to be in use on the date of sale. To arrive at a computation of profits or losses where property was purchased in one currency and sold in another, it should be obvious that there should be a common standard; in the circumstances of this case the purchase price had to be computed in terms of Malayan currency, in which the property was sold.principle adopted by the High Court appears to be unexceptionable. It accords with our view. Adverting to the second argument that the schedule to the Ordinance should be confined only to the scaling down of debts, the learned Judges pointed out at p.Report of the Select Committee which preceded the issue of the Malayan Ordinance has also been made part of the record. That showed that the Committee made a real attempt to ascertain the value of the Japanese currency in relation to the Malayan currency at every stage of the occupation period. Besides, we have to point out that no other basis of conversion was proposed by the assessee at any stage. We are unable to hold that the Department and the Tribunal were in error in adopting the conversion table furnished in the Schedule to the Malayanalso agree with thistwo currencies in the present case are essentially different though they were current in the same country during the same or different periods. The extraordinary situation of two currenciesduring the occupation period or the situation of one property being purchased during the enemy occupation period in Japanese currency and sold in Malayan currency after the vacation of the enemy occupation cannot be equated with fluctuations in the value of a nationss currency. Unless the cost price expressed in Japanese currency is computed in terms of the Malayan currency, it is not possible to arrive at the real profit accrued to the assessee. That is exactly what theOfficer did and, in our view, that is the only correct basis.5. It is not correct to say that theOfficer applied the said Ordinance to ascertain the profit, in the presentOrdinance was enacted for the purpose of scaling down the payments made by debtor; to creditors during the occupation period. A schedule was appended to the Ordinance providing a table of conversion of the depreciated Japanese currency into Malayan currency. In terms the Ordinance does not directly apply to the scaling down of the cost price of properties purchased in Japanese currency. But to ascertain the real profit, as we have stated earlier, it is necessary to adopt a reasonable conversion rate. The only material that was available to theOfficer was the Schedule appended to the Ordinance. Though that Schedule was appended to the Ordinance enacted for a different purpose, it was the result of a careful inquiry made by the appropriate and responsible authorities in Malaya. TheOfficer was, therefore, justified in adopting that Schedule for the purpose of ascertaining the cost price of the properties purchased in Japanese currency and sold in the Malayan currency. The fact that theOfficer adopted some other method in the previousmaterial has been placed before us in regard to the method adopted by thes not prevent him from ascertaining the correct method for the assessment year with which we are concerned. | 0 | 1,843 | 807 | ### Instruction:
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question was unwarranted; (2) the appellant maintained regular accounts for all the years including the Japanese occupation period; the original cost of acquisition of the 3 properties was adopted for the purpose of business balance-sheets all these years; no loss on revaluation of the said assets by scaling down their values at any time was allowed in any of the earlier years by the Department; and, therefore, there was no justification for a departure in the year of account.4. He also contended that if the properties were purchased for dollars and sold for dollars, the fact of inflation or deflation of currency would be irrelevant in ascertaining the profits. That may be so in the case of a countrys currency but when a property is purchased and sold in different currencies, say Japanese and Malayan currencies as in the present case, it is not possible to ascertain the profit or loss unless the exchange or conversion rate is ascertained. When a property is purchased in one currency and sold in another currency, how can the profit or loss be ascertained unless the conversion rate of the two currencies is known? There should be a common standard. The two currencies in the present case are essentially different though they were current in the same country during the same or different periods. The extraordinary situation of two currencies co-existing during the occupation period or the situation of one property being purchased during the enemy occupation period in Japanese currency and sold in Malayan currency after the vacation of the enemy occupation cannot be equated with fluctuations in the value of a nationss currency. Unless the cost price expressed in Japanese currency is computed in terms of the Malayan currency, it is not possible to arrive at the real profit accrued to the assessee. That is exactly what the Income-tax Officer did and, in our view, that is the only correct basis.5. It is not correct to say that the income-tax Officer applied the said Ordinance to ascertain the profit, in the present case. The scheme and the detail, of the Ordinance have already been considered by us in Civil Appeals Nos. 55 of 1962, etc. The Ordinance was enacted for the purpose of scaling down the payments made by debtor; to creditors during the occupation period. A schedule was appended to the Ordinance providing a table of conversion of the depreciated Japanese currency into Malayan currency. In terms the Ordinance does not directly apply to the scaling down of the cost price of properties purchased in Japanese currency. But to ascertain the real profit, as we have stated earlier, it is necessary to adopt a reasonable conversion rate. The only material that was available to the Income-tax Officer was the Schedule appended to the Ordinance. Though that Schedule was appended to the Ordinance enacted for a different purpose, it was the result of a careful inquiry made by the appropriate and responsible authorities in Malaya. The Income-tax Officer was, therefore, justified in adopting that Schedule for the purpose of ascertaining the cost price of the properties purchased in Japanese currency and sold in the Malayan currency. The fact that the Income-tax Officer adopted some other method in the previous years-no material has been placed before us in regard to the method adopted by the Income-tax Officer-does not prevent him from ascertaining the correct method for the assessment year with which we are concerned.6. The questions raised before us were the subject-matter of the decision of the Madras High Court in (1959) 35 ITR 641 (Mad) . There, as here, the assessee, which carried on a moneylending business and had its head office in India and a brach in the Federated Malaya States, purchased some properties when Malaya was under enemy occupation and sold them after the vacation of the enemy occupation in Malayan currency. In order to ascertain the profits resulting from the sale for the purpose of assessment of the assessee for the fear 1952-53 the Department valued the cost of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The assessee contended that the cost price of the properties must be taken at the figure accepted by the Department for the purpose of the Government scheme. The High Court held that to ascertain the real profits the Department was right in computing the cost price of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The reason for the conclusion is stated thus at p. 649:"The purchase was paid for in Japanese currency. The sale price was realised in Malayan currency. There was no parity between the two on the date of purchase. Certainly the Japanese currency ceased to be in use on the date of sale. To arrive at a computation of profits or losses where property was purchased in one currency and sold in another, it should be obvious that there should be a common standard; in the circumstances of this case the purchase price had to be computed in terms of Malayan currency, in which the property was sold. "The principle adopted by the High Court appears to be unexceptionable. It accords with our view. Adverting to the second argument that the schedule to the Ordinance should be confined only to the scaling down of debts, the learned Judges pointed out at p. 650."The Report of the Select Committee which preceded the issue of the Malayan Ordinance has also been made part of the record. That showed that the Committee made a real attempt to ascertain the value of the Japanese currency in relation to the Malayan currency at every stage of the occupation period. Besides, we have to point out that no other basis of conversion was proposed by the assessee at any stage. We are unable to hold that the Department and the Tribunal were in error in adopting the conversion table furnished in the Schedule to the Malayan Ordinance."We also agree with this view.
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6. The questions raised before us were the subject-matter of the decision of the Madras High Court in (1959) 35 ITR 641 (Mad) . There, as here, the assessee, which carried on a moneylending business and had its head office in India and a brach in the Federated Malaya States, purchased some properties when Malaya was under enemy occupation and sold them after the vacation of the enemy occupation in Malayan currency. In order to ascertain the profits resulting from the sale for the purpose of assessment of the assessee for the fear 1952-53 the Department valued the cost of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The assessee contended that the cost price of the properties must be taken at the figure accepted by the Department for the purpose of the Government scheme. The High Court held that to ascertain the real profits the Department was right in computing the cost price of the properties in Malayan currency in accordance with the Schedule appended to the Ordinance. The reason for the conclusion is stated thus at p.purchase was paid for in Japanese currency. The sale price was realised in Malayan currency. There was no parity between the two on the date of purchase. Certainly the Japanese currency ceased to be in use on the date of sale. To arrive at a computation of profits or losses where property was purchased in one currency and sold in another, it should be obvious that there should be a common standard; in the circumstances of this case the purchase price had to be computed in terms of Malayan currency, in which the property was sold.principle adopted by the High Court appears to be unexceptionable. It accords with our view. Adverting to the second argument that the schedule to the Ordinance should be confined only to the scaling down of debts, the learned Judges pointed out at p.Report of the Select Committee which preceded the issue of the Malayan Ordinance has also been made part of the record. That showed that the Committee made a real attempt to ascertain the value of the Japanese currency in relation to the Malayan currency at every stage of the occupation period. Besides, we have to point out that no other basis of conversion was proposed by the assessee at any stage. We are unable to hold that the Department and the Tribunal were in error in adopting the conversion table furnished in the Schedule to the Malayanalso agree with thistwo currencies in the present case are essentially different though they were current in the same country during the same or different periods. The extraordinary situation of two currenciesduring the occupation period or the situation of one property being purchased during the enemy occupation period in Japanese currency and sold in Malayan currency after the vacation of the enemy occupation cannot be equated with fluctuations in the value of a nationss currency. Unless the cost price expressed in Japanese currency is computed in terms of the Malayan currency, it is not possible to arrive at the real profit accrued to the assessee. That is exactly what theOfficer did and, in our view, that is the only correct basis.5. It is not correct to say that theOfficer applied the said Ordinance to ascertain the profit, in the presentOrdinance was enacted for the purpose of scaling down the payments made by debtor; to creditors during the occupation period. A schedule was appended to the Ordinance providing a table of conversion of the depreciated Japanese currency into Malayan currency. In terms the Ordinance does not directly apply to the scaling down of the cost price of properties purchased in Japanese currency. But to ascertain the real profit, as we have stated earlier, it is necessary to adopt a reasonable conversion rate. The only material that was available to theOfficer was the Schedule appended to the Ordinance. Though that Schedule was appended to the Ordinance enacted for a different purpose, it was the result of a careful inquiry made by the appropriate and responsible authorities in Malaya. TheOfficer was, therefore, justified in adopting that Schedule for the purpose of ascertaining the cost price of the properties purchased in Japanese currency and sold in the Malayan currency. The fact that theOfficer adopted some other method in the previousmaterial has been placed before us in regard to the method adopted by thes not prevent him from ascertaining the correct method for the assessment year with which we are concerned.
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Ashok Kumar Mishra & Anr Vs. Collector, Raipur & Ors | go into other questions raised before us. 6. The Collector published the notice under Rule 4(1) of the Rules on September 30, 1978 and also called upon interested persons to prefer claims and/or objections thereto within a period of 20 days. In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the prescribed period would not be considered. The period prescribed for preferring claims and objections under Rule 4(3) was 30 days. It is not the case of the petitioners that they did not know immediately after the publication of such notice that in the said notice a period of 20 days had been mentioned in its preamble as the period within the claims and objections could be preferred and in paragraph 7 thereof it had been stated that any such claim or objection filed beyond the prescribed period was liable to be rejected. If they felt that the said notice suffered from any illegality, they could have brought it to the notice of the Collector immediately thereafter. It was open to them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow the provisions governing the preparation of the electoral roll. It was also open to them to file a writ petition immediately after the publication of the said notice questioning its legality. None of the above courses was adopted by the petitioners. Persons whose claims were rejected could have filed an appeal under Rule 5 before the Collector. No such appeal was presented. The final electoral roll was published on November 16, 1978. It was notified that the nominations could be filed on and after November 25, 1978 and the poll, if necessary, would take place on December 31, 1978. After November 25, 1978, a large number of nominations were received by the Returning Officer. It was only on December 5, 1978 for the first time that a letter was addressed by the petitioner 6 to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules. By that time, the nominations had all been received. The final list of candidates for the election with their symbols was published on December 20, 1978. The writ petition itself was filed on December 28, 1978 when the poll had taken place on December 31, 1978. When the petition came up for order on December 29, 1978, it had to be adjourned to December 30, 1978 at the request of the counsel for the petitioners. No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing of the petition till December 28, 1978, even though they knew that there was an error in the notice under Rule 4(1) of the Rules in the month of October, 1978 more than two months before the date on which it was filed. It was, however, argued before us relying upon a news item which had appeared in a daily called Nav Bharat dated October 21, 1978 in which there was a reference to a statement made by the Minister for Local Self Government of Madhya Pradesh regarding the irregularity in the division of Raipur town into different wards for purposes of election. It was also stated therein that in the course of the discussion with the press-reporters on that day, the Minister had stated that he had directed the Commissioner, Raipur Division, Raipur that the date for inclusion of names in the electoral roll could be extended if the election date was not affected. There was a further reference to dates of election to Bilaspur Municipal Committee having been adjourned twice before. It is difficult to place any reliance on the above news item for the purpose of concluding that the Collector, Raipur had been informed about the defect in the notice issued under Rule 4(1) of the Rules by October 21, 1978. The other documents produced along with the writ petition referred to omission of certain names from the electoral roll. They do not show that any of the petitioners had raised any objection with regard to the date within which the claims and objections could be preferred to the electoral roll mentioned in the notice. We have, therefore, to proceed on the basis that it was only on December 5, 1978 for the first time that the attention of the Collector was drawn to the said error and that the writ petition itself was presented on December 28, 1978. No satisfactory reason for the delay was set out in the petition. 7. It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged. The question whether in a given case the delay involved is such that it disentitles a person to relief under Article 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances. 8. We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored. 9. On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it. We, therefore, find it unnecessary to deal with the other points urged before us. | 0[ds]7. It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged.The question whether in a given case the delay involved is such that it disentitles a person to relief under Article 226is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances8. We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored9. On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it. We, therefore, find it unnecessary to deal with the other points urged before us. | 0 | 2,543 | 238 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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go into other questions raised before us. 6. The Collector published the notice under Rule 4(1) of the Rules on September 30, 1978 and also called upon interested persons to prefer claims and/or objections thereto within a period of 20 days. In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the prescribed period would not be considered. The period prescribed for preferring claims and objections under Rule 4(3) was 30 days. It is not the case of the petitioners that they did not know immediately after the publication of such notice that in the said notice a period of 20 days had been mentioned in its preamble as the period within the claims and objections could be preferred and in paragraph 7 thereof it had been stated that any such claim or objection filed beyond the prescribed period was liable to be rejected. If they felt that the said notice suffered from any illegality, they could have brought it to the notice of the Collector immediately thereafter. It was open to them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow the provisions governing the preparation of the electoral roll. It was also open to them to file a writ petition immediately after the publication of the said notice questioning its legality. None of the above courses was adopted by the petitioners. Persons whose claims were rejected could have filed an appeal under Rule 5 before the Collector. No such appeal was presented. The final electoral roll was published on November 16, 1978. It was notified that the nominations could be filed on and after November 25, 1978 and the poll, if necessary, would take place on December 31, 1978. After November 25, 1978, a large number of nominations were received by the Returning Officer. It was only on December 5, 1978 for the first time that a letter was addressed by the petitioner 6 to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules. By that time, the nominations had all been received. The final list of candidates for the election with their symbols was published on December 20, 1978. The writ petition itself was filed on December 28, 1978 when the poll had taken place on December 31, 1978. When the petition came up for order on December 29, 1978, it had to be adjourned to December 30, 1978 at the request of the counsel for the petitioners. No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing of the petition till December 28, 1978, even though they knew that there was an error in the notice under Rule 4(1) of the Rules in the month of October, 1978 more than two months before the date on which it was filed. It was, however, argued before us relying upon a news item which had appeared in a daily called Nav Bharat dated October 21, 1978 in which there was a reference to a statement made by the Minister for Local Self Government of Madhya Pradesh regarding the irregularity in the division of Raipur town into different wards for purposes of election. It was also stated therein that in the course of the discussion with the press-reporters on that day, the Minister had stated that he had directed the Commissioner, Raipur Division, Raipur that the date for inclusion of names in the electoral roll could be extended if the election date was not affected. There was a further reference to dates of election to Bilaspur Municipal Committee having been adjourned twice before. It is difficult to place any reliance on the above news item for the purpose of concluding that the Collector, Raipur had been informed about the defect in the notice issued under Rule 4(1) of the Rules by October 21, 1978. The other documents produced along with the writ petition referred to omission of certain names from the electoral roll. They do not show that any of the petitioners had raised any objection with regard to the date within which the claims and objections could be preferred to the electoral roll mentioned in the notice. We have, therefore, to proceed on the basis that it was only on December 5, 1978 for the first time that the attention of the Collector was drawn to the said error and that the writ petition itself was presented on December 28, 1978. No satisfactory reason for the delay was set out in the petition. 7. It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged. The question whether in a given case the delay involved is such that it disentitles a person to relief under Article 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances. 8. We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored. 9. On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it. We, therefore, find it unnecessary to deal with the other points urged before us.
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7. It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged.The question whether in a given case the delay involved is such that it disentitles a person to relief under Article 226is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances8. We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored9. On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it. We, therefore, find it unnecessary to deal with the other points urged before us.
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Basudeo Yadav Vs. Surendra Yadav & Others | SCC 508 ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground." 10. Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed as follows: "Coming to the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible." 11. Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held as under: "27. Doctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses." 13. Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.16. | 1[ds]In the instant case, the time was about 7 P.M. in the evening in the month of April. The position was again reiterated in Bharasi and others v. State of M.P. (2002(7) SCC 239). It was inter alia noted as follows:"In relation to the identification of the accused in the darkness, the High Court has clearly stated that in the month of April, the sun sets at about 7.00 p.m. in the evening, the accused were known to the witnesses and could be identified even in faint darkness. Here again, the High Court has relied upon the decision of this Court in the case of Nathuni Yadav v. State of Bihar (1998 (9) SCC 238 ). The High Court has also noticed that the enmity between the deceased and the appellants was not disputed."21. In Krishnan and Another v. State of Kerala (1996 (10) SCC 508 ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground.Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed asto the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible.Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held asDoctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses.Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted asThe last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored. | 1 | 3,871 | 1,239 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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SCC 508 ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground." 10. Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed as follows: "Coming to the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible." 11. Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held as under: "27. Doctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses." 13. Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.16.
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and the appellants was not disputed."21. In Krishnan and Another v. State of Kerala (1996 (10) SCC 508 ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground.Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed asto the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible.Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held asDoctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses.Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted asThe last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.
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Chikkam Koreswara Rao Vs. Chikkam Subba Rao & Others | B-6 were the properties of the joint Hindu family of the parties to the suit and consequently available for partition.2. The suit is for partition in a family governed by Mitakshara law. The appellant and Respondent Nos. 1 and 2 are brothers. Their father was one Reddinaidu. The father and the three sons constituted a joint Hindu family. The father died in about the year 1937. The appellant was the eldest son. The suit from which this appeal arises was brought by the 1st respondent claiming a 1/3rd share in the properties detailed in the plaint-schedule. Some of the properties included in the plaint-schedule are admittedly joint family properties. About them there is no dispute. But the appellant claimed that the properties covered by Exhs. B-2 to B-7 are his separate properties and as such his brothers cannot claim any share therein. The Trial Court accepted his contention and granted a decree for partition only in respect of properties other than those covered by those documents. The High Court affirmed the decree of the Trial Court in respect of properties covered by Exhs. B-2 to B-5 and B-7 but as regards the properties covered by Exh. B-6 relying on certain alleged admission by the appellant, it held that they were joint family properties. At this stage it would be appropriate to quote the observations of the high Court relating to the properties covered by Exh. B-6."Now remains only the question of Exh. B-6, dated 16-8-1934. Exh. B-6 covers an area of Ac. 5-08 cents. As already noticed, the sale deed is in the name of the 1st defendant. According to the sale deed, the vendee is directed to discharge the debt due to China Rayappagaru, son of Nimmakayala Subbarao due under the pronote of 5-6-1929 Exh. B-35. The endorsement Exh. B-36 on Exh. B-35 would show that a sum of Rs. 3, 652-12-8 had been paid to Nimmakayala China Rajappa and the 1st defendant was given a voucher. The sale consideration of Exh. B-6, dated 16-8-34 was thus paid by the 1st defendant. If the matter ended here, there could have been no difficulty in holding that property covered by Exh. B-6 is the self-acquisition of 1st defendant. But the 1st defendant himself in his deposition at p. 75 of the printed book says thus :Under Exh. B-6 consideration was paid by my father. I do not know how he got it.This admission of the defendant that the money was paid by the father is fatal to his case, specially when he says that he does not know how his father got the money. He does not say that this money was in any way connected with his dowry amount."3. It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the finding of the Trial Court as regards the properties covered by Exh. B-6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There is no difference in the nature of the acquisitions made under Exhs. B-2 to B-5 and B-7 and that made under Exh. B-6. They were all made during the life time of Reddinaidu.4. The case of the appellant is that when he was married in 1919, he got a dowry of Rs. 2, 500/-. That money was left with his father who invested the same and utilised the proceeds for making acquisitions on his behalf. Therefore the fact that the consideration for B-6 was paid by the father of the appellant is not a circumstance that militates against the appellants claim. The appellant also may not know where and how his father invested the money in question. Hence in evaluating the statement made by the appellant we have to bear these facts in mind.5. We shall now proceed to consider the true effect of the statement made by the appellant. In his chief-examination he specifically stated :"The lands purchased in may name under Exhs. B-3 to B-7 are my own property. Since then I have been paying taxes on them under Exhs. B-59 and 60 receipt books. The lease deeds for those lands are Exs. B-61 to 66 besides Exhs. B-14, 15, 17 to 20."6. From this statement, it is clear that he had put forward a positive case that the lands in question are his separate properties. In the course of his cross-examination it was elicited from him :"Under Exh. B-6 the consideration was paid by my father. I do not know how he got it."7. This admission must be read along with the evidence given by him in his chief-examination. Soon after he made that statement, he also stated :"From the time I took the sale deed Exh. B-6, I was paying taxes. I filed those tax receipts in a separate book for my personal properties. My father was paying taxes on family lands, " separate from my lands."8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on hid behalf and the consideration for the same was paid by his father from out of the appellants private funds that were in the hands of his father. Hence we are unable to agree with the high Court that the appellant had admitted that the properties covered by Exh. B-6 were the acquisitions of his father.9. There is no basis whatsoever for distinguishing the acquisitions under Exhs. B-2 to B-5 and B-7 and B-6. They all stand on the same footing. The respondents have not challenged the finding of the Trial Court and the High Court as regards the acquisitions under Exhs. B-2 to B-5 and B-7. | 1[ds]5. We shall now proceed to consider the true effect of the statement made by the appellant. In hishe specifically stated :"The lands purchased in may name under Exhs.are my own property. Since then I have been paying taxes on them under Exhs.and 60 receipt books. The lease deeds for those lands are Exs.to 66 besides Exhs.15, 17 to 20."6. From this statement, it is clear that he had put forward a positive case that the lands in question are his separate properties. In the course of hisit was elicited from him :"Under Exh.the consideration was paid by my father. I do not know how he got it."7. This admission must be read along with the evidence given by him in hisSoon after he made that statement, he also stated :"From the time I took the sale deed Exh.I was paying taxes. I filed those tax receipts in a separate book for my personal properties. My father was paying taxes on family lands, " separate from my lands."8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on hid behalf and the consideration for the same was paid by his father from out of the appellants private funds that were in the hands of his father. Hence we are unable to agree with the high Court that the appellant had admitted that the properties covered by Exh.were the acquisitions of his father.9. There is no basis whatsoever for distinguishing the acquisitions under Exhs.6. They all stand on the same footing. The respondents have not challenged the finding of the Trial Court and the High Court as regards the acquisitions under Exhs. | 1 | 1,140 | 333 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
B-6 were the properties of the joint Hindu family of the parties to the suit and consequently available for partition.2. The suit is for partition in a family governed by Mitakshara law. The appellant and Respondent Nos. 1 and 2 are brothers. Their father was one Reddinaidu. The father and the three sons constituted a joint Hindu family. The father died in about the year 1937. The appellant was the eldest son. The suit from which this appeal arises was brought by the 1st respondent claiming a 1/3rd share in the properties detailed in the plaint-schedule. Some of the properties included in the plaint-schedule are admittedly joint family properties. About them there is no dispute. But the appellant claimed that the properties covered by Exhs. B-2 to B-7 are his separate properties and as such his brothers cannot claim any share therein. The Trial Court accepted his contention and granted a decree for partition only in respect of properties other than those covered by those documents. The High Court affirmed the decree of the Trial Court in respect of properties covered by Exhs. B-2 to B-5 and B-7 but as regards the properties covered by Exh. B-6 relying on certain alleged admission by the appellant, it held that they were joint family properties. At this stage it would be appropriate to quote the observations of the high Court relating to the properties covered by Exh. B-6."Now remains only the question of Exh. B-6, dated 16-8-1934. Exh. B-6 covers an area of Ac. 5-08 cents. As already noticed, the sale deed is in the name of the 1st defendant. According to the sale deed, the vendee is directed to discharge the debt due to China Rayappagaru, son of Nimmakayala Subbarao due under the pronote of 5-6-1929 Exh. B-35. The endorsement Exh. B-36 on Exh. B-35 would show that a sum of Rs. 3, 652-12-8 had been paid to Nimmakayala China Rajappa and the 1st defendant was given a voucher. The sale consideration of Exh. B-6, dated 16-8-34 was thus paid by the 1st defendant. If the matter ended here, there could have been no difficulty in holding that property covered by Exh. B-6 is the self-acquisition of 1st defendant. But the 1st defendant himself in his deposition at p. 75 of the printed book says thus :Under Exh. B-6 consideration was paid by my father. I do not know how he got it.This admission of the defendant that the money was paid by the father is fatal to his case, specially when he says that he does not know how his father got the money. He does not say that this money was in any way connected with his dowry amount."3. It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the finding of the Trial Court as regards the properties covered by Exh. B-6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There is no difference in the nature of the acquisitions made under Exhs. B-2 to B-5 and B-7 and that made under Exh. B-6. They were all made during the life time of Reddinaidu.4. The case of the appellant is that when he was married in 1919, he got a dowry of Rs. 2, 500/-. That money was left with his father who invested the same and utilised the proceeds for making acquisitions on his behalf. Therefore the fact that the consideration for B-6 was paid by the father of the appellant is not a circumstance that militates against the appellants claim. The appellant also may not know where and how his father invested the money in question. Hence in evaluating the statement made by the appellant we have to bear these facts in mind.5. We shall now proceed to consider the true effect of the statement made by the appellant. In his chief-examination he specifically stated :"The lands purchased in may name under Exhs. B-3 to B-7 are my own property. Since then I have been paying taxes on them under Exhs. B-59 and 60 receipt books. The lease deeds for those lands are Exs. B-61 to 66 besides Exhs. B-14, 15, 17 to 20."6. From this statement, it is clear that he had put forward a positive case that the lands in question are his separate properties. In the course of his cross-examination it was elicited from him :"Under Exh. B-6 the consideration was paid by my father. I do not know how he got it."7. This admission must be read along with the evidence given by him in his chief-examination. Soon after he made that statement, he also stated :"From the time I took the sale deed Exh. B-6, I was paying taxes. I filed those tax receipts in a separate book for my personal properties. My father was paying taxes on family lands, " separate from my lands."8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on hid behalf and the consideration for the same was paid by his father from out of the appellants private funds that were in the hands of his father. Hence we are unable to agree with the high Court that the appellant had admitted that the properties covered by Exh. B-6 were the acquisitions of his father.9. There is no basis whatsoever for distinguishing the acquisitions under Exhs. B-2 to B-5 and B-7 and B-6. They all stand on the same footing. The respondents have not challenged the finding of the Trial Court and the High Court as regards the acquisitions under Exhs. B-2 to B-5 and B-7.
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5. We shall now proceed to consider the true effect of the statement made by the appellant. In hishe specifically stated :"The lands purchased in may name under Exhs.are my own property. Since then I have been paying taxes on them under Exhs.and 60 receipt books. The lease deeds for those lands are Exs.to 66 besides Exhs.15, 17 to 20."6. From this statement, it is clear that he had put forward a positive case that the lands in question are his separate properties. In the course of hisit was elicited from him :"Under Exh.the consideration was paid by my father. I do not know how he got it."7. This admission must be read along with the evidence given by him in hisSoon after he made that statement, he also stated :"From the time I took the sale deed Exh.I was paying taxes. I filed those tax receipts in a separate book for my personal properties. My father was paying taxes on family lands, " separate from my lands."8. If we read these statements along with his other evidence and in a harmonious manner, it is clear that what the appellant admitted was that the acquisition in question was made by his father on hid behalf and the consideration for the same was paid by his father from out of the appellants private funds that were in the hands of his father. Hence we are unable to agree with the high Court that the appellant had admitted that the properties covered by Exh.were the acquisitions of his father.9. There is no basis whatsoever for distinguishing the acquisitions under Exhs.6. They all stand on the same footing. The respondents have not challenged the finding of the Trial Court and the High Court as regards the acquisitions under Exhs.
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The Rashtriya Mill Mazdoor Sangh, Bombay Vs. B.A. Ekbote and Others | Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself or. . . may apply to such authority for a direction under sub-s. (3). (3) When any application under sub-s. (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under S. 3, and after such further inquiry (if any) as may be necessary, may. . . direct the refund to the employed person of the amount deducted, or the payment of the delayed wages together with the payment of such compensation as the authority may think fit. . . "The submission of the company is that the provision in S. 23 has not the effect of providing that, in the matter of applications made before the Authority for recovery of deduction illegally made, an employee has no right to make a compromise with his employer for receiving in complete settlement the amount agreed between the parties as illegally deducted. Conversely, on behalf of the petitioner-Sangh it is argued that liberty is not reserved to an employee to make any such compromise. The submission was that the object of the legislation contained in S. 23 was to protect employees against their employers who would always be in a position to take undue advantage of the employees difficulties of diverse kinds. A valid compromise could not be made because of S. 23.3. Now, it is difficult for us to accept the above submission made on behalf of the petitioner-Sangh. Genuine and valid compromise made between an employee and an employer in connection with disputes between them as regards the true and correct amounts of illegal deductions payable to the employee cannot be held to be relinquishment of rights. Apparently there can be genuine disputes in respect of amounts claimed by employees in applications made under the Act. In numerous case, an employer may be able to prove that though the claims were for very large amounts, the illegal deductions were really of small amounts which were payable by them. The question is whether, in connection with such genuine disputes between an employee and an employer, S. 23 provides that settlement cannot be made and compromise cannot be effected. What is null and void under the section is relinquishment of rights conferred under the Act. When under compromise an agreed amount is held to be due and payable to an employee, the compromise cannot be described as an agreement for relinquishment of rights conferred by the Act.4. In this connection, reference may be made to the case of Heilgers and Co. v. Nagesh Chandra a. I. R. (1949) F. C. 142, which was relied upon on behalf of the petitioner-Sangh. In that case, a settlement made in industrial disputes in respect of claims for bonus payable by an employer by an award made by the Industrial Tribunal by consent of parties, was challenged as being in violation of the provisions in S. 23 of the Act. The Federal Court negatived the contention and held :"the scheme of the Payment of Wages Act, read along with the Industrial Disputes Act, showed that there was nothing to prevent such an agreement being made between an employer and employee, and much less to make such agreement illegal and prohibited by the Payment of wages Act. "5. Mr. Buch also relied upon the observation of the Allahabad High Court in Union of India v. Kundan Lal A. I. R. (1957) All. 363 to the effect that S. 23 of the Payment of Wages Act lays down that any contract or agreement whereby an employed person relinquishes any right conferred by the Act shall be null and void in so fat as it purports to deprive him of such right. A right to file an application under S. 15 of the Payment of Wages Act could not be taken away by any agreement or compromise of the kind made by respondent No. 1 in this case (See also swadeshi Cotton Mills Co. v. Rajeswar Prasad [1960 - II L. L. J. 707] which was not cited at the bar).6. It appears to us that there is nothing in the two authorities relied upon on behalf of the petitioner-Sangh which is contrary to what we have observed above as regards the true construction and effect of the provisions in S. 23 of the Act. As genuine compromise was permissible to be made by the 43 employees who gave the written agreements mentioned above, we are unable to accept the second contention made on behalf of the petitioner-Sangh.7. In this connection, it requires to be recorded that the amount due to these 43 employees, as admitted on behalf of the company in the statement filed by it before the Authority, was deposited by the company in the office of the Authority. That amount has been recovered by the petitioner-Sangh without prejudice to its contentions made in this petition. The amount as agreed to be due by the company has now been received by these 43 employees. The agreements made by these 43 employees, so far as the company is concerned, have now been completely performed and the company has discharged its obligation for payment of illegal deductions claimed by these employees before the Authority, in the application that was made by the petitioner-Sangh. We must add that it was permissible for these 43 employees by way of agreement to admit that the amounts mentioned by the company as payable to them in the statement filed (before the Authority) were the only amounts payable to them and to accept those amounts in full settlement of the claims made on their behalf in the application filed by the petitioner-Sangh. Having regard to this finding, the second contention fails. As the second contention fails, we do not deem it necessary to consider and decide the first contention to law made on behalf of the petitioner-Sangh before us. | 0[ds]Now, it is difficult for us to accept the above submission made on behalf of theGenuine and valid compromise made between an employee and an employer in connection with disputes between them as regards the true and correct amounts of illegal deductions payable to the employee cannot be held to be relinquishment of rights. Apparently there can be genuine disputes in respect of amounts claimed by employees in applications made under the Act. In numerous case, an employer may be able to prove that though the claims were for very large amounts, the illegal deductions were really of small amounts which were payable by them. The question is whether, in connection with such genuine disputes between an employee and an employer, S. 23 provides that settlement cannot be made and compromise cannot be effected. What is null and void under the section is relinquishment of rights conferred under the Act. When under compromise an agreed amount is held to be due and payable to an employee, the compromise cannot be described as an agreement for relinquishment of rights conferred by the Act.It appears to us that there is nothing in the two authorities relied upon on behalf of theIn this connection, it requires to be recorded that the amount due to these 43 employees, as admitted on behalf of the company in the statement filed by it before the Authority, was deposited by the company in the office of the Authority. That amount has been recovered by thewithout prejudice to its contentions made in this petition. The amount as agreed to be due by the company has now been received by these 43 employees. The agreements made by these 43 employees, so far as the company is concerned, have now been completely performed and the company has discharged its obligation for payment of illegal deductions claimed by these employees before the Authority, in the application that was made by theWe must add that it was permissible for these 43 employees by way of agreement to admit that the amounts mentioned by the company as payable to them in the statement filed (before the Authority) were the only amounts payable to them and to accept those amounts in full settlement of the claims made on their behalf in the application filed by theHaving regard to this finding, the second contention fails. As the second contention fails, we do not deem it necessary to consider and decide the first contention to law made on behalf of the | 0 | 1,363 | 448 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself or. . . may apply to such authority for a direction under sub-s. (3). (3) When any application under sub-s. (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under S. 3, and after such further inquiry (if any) as may be necessary, may. . . direct the refund to the employed person of the amount deducted, or the payment of the delayed wages together with the payment of such compensation as the authority may think fit. . . "The submission of the company is that the provision in S. 23 has not the effect of providing that, in the matter of applications made before the Authority for recovery of deduction illegally made, an employee has no right to make a compromise with his employer for receiving in complete settlement the amount agreed between the parties as illegally deducted. Conversely, on behalf of the petitioner-Sangh it is argued that liberty is not reserved to an employee to make any such compromise. The submission was that the object of the legislation contained in S. 23 was to protect employees against their employers who would always be in a position to take undue advantage of the employees difficulties of diverse kinds. A valid compromise could not be made because of S. 23.3. Now, it is difficult for us to accept the above submission made on behalf of the petitioner-Sangh. Genuine and valid compromise made between an employee and an employer in connection with disputes between them as regards the true and correct amounts of illegal deductions payable to the employee cannot be held to be relinquishment of rights. Apparently there can be genuine disputes in respect of amounts claimed by employees in applications made under the Act. In numerous case, an employer may be able to prove that though the claims were for very large amounts, the illegal deductions were really of small amounts which were payable by them. The question is whether, in connection with such genuine disputes between an employee and an employer, S. 23 provides that settlement cannot be made and compromise cannot be effected. What is null and void under the section is relinquishment of rights conferred under the Act. When under compromise an agreed amount is held to be due and payable to an employee, the compromise cannot be described as an agreement for relinquishment of rights conferred by the Act.4. In this connection, reference may be made to the case of Heilgers and Co. v. Nagesh Chandra a. I. R. (1949) F. C. 142, which was relied upon on behalf of the petitioner-Sangh. In that case, a settlement made in industrial disputes in respect of claims for bonus payable by an employer by an award made by the Industrial Tribunal by consent of parties, was challenged as being in violation of the provisions in S. 23 of the Act. The Federal Court negatived the contention and held :"the scheme of the Payment of Wages Act, read along with the Industrial Disputes Act, showed that there was nothing to prevent such an agreement being made between an employer and employee, and much less to make such agreement illegal and prohibited by the Payment of wages Act. "5. Mr. Buch also relied upon the observation of the Allahabad High Court in Union of India v. Kundan Lal A. I. R. (1957) All. 363 to the effect that S. 23 of the Payment of Wages Act lays down that any contract or agreement whereby an employed person relinquishes any right conferred by the Act shall be null and void in so fat as it purports to deprive him of such right. A right to file an application under S. 15 of the Payment of Wages Act could not be taken away by any agreement or compromise of the kind made by respondent No. 1 in this case (See also swadeshi Cotton Mills Co. v. Rajeswar Prasad [1960 - II L. L. J. 707] which was not cited at the bar).6. It appears to us that there is nothing in the two authorities relied upon on behalf of the petitioner-Sangh which is contrary to what we have observed above as regards the true construction and effect of the provisions in S. 23 of the Act. As genuine compromise was permissible to be made by the 43 employees who gave the written agreements mentioned above, we are unable to accept the second contention made on behalf of the petitioner-Sangh.7. In this connection, it requires to be recorded that the amount due to these 43 employees, as admitted on behalf of the company in the statement filed by it before the Authority, was deposited by the company in the office of the Authority. That amount has been recovered by the petitioner-Sangh without prejudice to its contentions made in this petition. The amount as agreed to be due by the company has now been received by these 43 employees. The agreements made by these 43 employees, so far as the company is concerned, have now been completely performed and the company has discharged its obligation for payment of illegal deductions claimed by these employees before the Authority, in the application that was made by the petitioner-Sangh. We must add that it was permissible for these 43 employees by way of agreement to admit that the amounts mentioned by the company as payable to them in the statement filed (before the Authority) were the only amounts payable to them and to accept those amounts in full settlement of the claims made on their behalf in the application filed by the petitioner-Sangh. Having regard to this finding, the second contention fails. As the second contention fails, we do not deem it necessary to consider and decide the first contention to law made on behalf of the petitioner-Sangh before us.
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Now, it is difficult for us to accept the above submission made on behalf of theGenuine and valid compromise made between an employee and an employer in connection with disputes between them as regards the true and correct amounts of illegal deductions payable to the employee cannot be held to be relinquishment of rights. Apparently there can be genuine disputes in respect of amounts claimed by employees in applications made under the Act. In numerous case, an employer may be able to prove that though the claims were for very large amounts, the illegal deductions were really of small amounts which were payable by them. The question is whether, in connection with such genuine disputes between an employee and an employer, S. 23 provides that settlement cannot be made and compromise cannot be effected. What is null and void under the section is relinquishment of rights conferred under the Act. When under compromise an agreed amount is held to be due and payable to an employee, the compromise cannot be described as an agreement for relinquishment of rights conferred by the Act.It appears to us that there is nothing in the two authorities relied upon on behalf of theIn this connection, it requires to be recorded that the amount due to these 43 employees, as admitted on behalf of the company in the statement filed by it before the Authority, was deposited by the company in the office of the Authority. That amount has been recovered by thewithout prejudice to its contentions made in this petition. The amount as agreed to be due by the company has now been received by these 43 employees. The agreements made by these 43 employees, so far as the company is concerned, have now been completely performed and the company has discharged its obligation for payment of illegal deductions claimed by these employees before the Authority, in the application that was made by theWe must add that it was permissible for these 43 employees by way of agreement to admit that the amounts mentioned by the company as payable to them in the statement filed (before the Authority) were the only amounts payable to them and to accept those amounts in full settlement of the claims made on their behalf in the application filed by theHaving regard to this finding, the second contention fails. As the second contention fails, we do not deem it necessary to consider and decide the first contention to law made on behalf of the
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M/S Usha Stud & Agr.Farms P.Ltd Vs. State Of Haryana | is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilised for execution of the particular project or scheme. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.” 32. In Kamal Trading (P) Ltd. v. State of West Bengal (supra), this Court again considered the scope of Section 5-A and observed: “13. Section 5-A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final.14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely, “public purpose” is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector’s recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.” 33. The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).34. As a sequel to the above discussion, we hold that the decision taken at the level of the Chief Minister was not in consonance with the scheme of Section 5-A(2) read with Section 6(1). We further hold that the State Government’s refusal to release the appellants’ land resulted in violation of their right to equality granted under Article 14 of the Constitution. | 1[ds]14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely,is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with therecommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).34. As a sequel to the above discussion, we hold that the decision taken at the level of the Chief Minister was not in consonance with the scheme of Section 5-A(2) read with Section 6(1). We further hold that the Staterefusal to release theland resulted in violation of their right to equality granted under Article 14 of the Constitution. | 1 | 7,766 | 746 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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is not suitable for the purpose specified in the notification issued under Section 4(1). Not only this, he can produce evidence to show that another piece of land is available and the same can be utilised for execution of the particular project or scheme. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.” 32. In Kamal Trading (P) Ltd. v. State of West Bengal (supra), this Court again considered the scope of Section 5-A and observed: “13. Section 5-A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5-A requires the Collector to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final.14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely, “public purpose” is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector’s recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.” 33. The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).34. As a sequel to the above discussion, we hold that the decision taken at the level of the Chief Minister was not in consonance with the scheme of Section 5-A(2) read with Section 6(1). We further hold that the State Government’s refusal to release the appellants’ land resulted in violation of their right to equality granted under Article 14 of the Constitution.
### Response:
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### Explanation:
14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely,is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with therecommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).34. As a sequel to the above discussion, we hold that the decision taken at the level of the Chief Minister was not in consonance with the scheme of Section 5-A(2) read with Section 6(1). We further hold that the Staterefusal to release theland resulted in violation of their right to equality granted under Article 14 of the Constitution.
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HARI STEEL AND GENERAL INDUSTRIES LTD Vs. DALJIT SINGH | during trial in the suit. 35. In the judgment in the case of Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr. (supra), this Court has interpreted the expression otherwise as used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order XII Rule 6 is wider in comparison to provision of Order XII Rule 1 of CPC. It is true that after amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the expression otherwise inserted in Order XII Rule 6 is also to be considered within the framework of the Rule but not beyond. In any event, even in a given case, the admissions are categorical and unconditional, whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be considered having regard to facts of each case. There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC. 36. In the judgment in the case of Usha Rectifier Corporation (India) Limited vs. Commissioner of Central Excise, New Delhi (supra) relied on by learned senior counsel Sri Shyam Divan, this Court has held that entries made in the balance sheets filed on behalf of the company are to be treated as admissions and the appellant cannot turn around and take stand, contrary to such admissions but in this case from the beginning it is the case of the appellants that the third respondent is in connivance with the respondents-plaintiffs. 37. In this case it is to be noted that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving inquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentious issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone. 38. Further it is also to be noted that the suit is for specific performance of the agreement of sale. The relief sought is equitable and discretionary relief. The readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved. At first instance in the plaint filed on 1.11.2006 there was no such averment at all. Subsequent to the filing of the written statement, interlocutory application No.3370 of 2007 was filed on 20.3.2007 to incorporate the plea of readiness and willingness on the part of the respondents-plaintiffs in the plaint, which was allowed subsequently. The readiness and willingness on the part of the respondents-plaintiffs cannot be inferred merely on the ground that they have deposited the balance amount after the impugned order is passed. Even in absence of refusal of the application for amendment of written statement, it is obligatory on the part of the plaintiffs to prove that they were willing and ready to perform the contract, to claim the equitable relief of specific performance. In the judgment relied on by Sri P.S. Narsimha, learned senior counsel in the case of Aniglase Yohannan vs. Ramlatha and Ors. (supra), this Court has held that the basic principle behind Section 16(c) read with Explanation (ii) of the Specific Relief Act, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. In the aforesaid judgment this Court has further held that the court is to grant relief on the basis of the conduct of the person seeking relief. Paras 12 and 13 of the judgment read as under:- 12.The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost an identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey 1995 Supp (4) SCC 542 : AIR 1994 SC 542 ] that the plaintiff had substantiated his plea. The said judgment of this Court also supports the plea of the appellants herein. 39. The learned counsels appearing for the appellants, have also contended stating that as per the directions of the High Court remaining balance amount, as per the agreement dated 03.05.2005, is not deposited by the respondents-plaintiffs, and the said amount is deposited by a third party who has no concern in the matter. In view of our findings recorded above on other issues, we are of the opinion that it is not necessary to deal with the said contention. | 1[ds]27. In the case on hand, at first instance a Memorandum of Understanding was entered into by the appellants with the respondent No.4 i.e. Mr. Praveen Kumar Jolly on 24.05.2003 with respect to half of the suit property. It is the case of the appellants that due to non-compliance of the terms of MOU, by Mr. Praveen Kumar Jolly, the said MOU was terminated in August, 2004 and subsequently an arrangement/contract is entered into with respondent nos.1 and 2 – plaintiffs on 7.4.2005 and subsequent agreement dated 3.5.2005. It is the specific case of the appellants that contractual terms were not crystallized as such there were several blanks in the agreement dated 3.5.2005. While it is the case of the respondents-plaintiffs that an amount of Rs. Five crores was paid, i.e. Rs. Two crores by way of cheque and Rs.Three crores by way of cash, the same is seriously disputed by the appellants-plaintiffs stating that only an amount of Rs. Two Crores was paid and the payment of Rs. Three crores is a fabrication of the agreement to sell dated 3.5.2005 on pages 3 and 4 of the document. Based on the earlier MOU by the appellants with Mr.Praveen Kumar Jolly i.e. 4 th respondent herein, 4 th respondent has filed a suit for specific performance of the agreement in CS(OS) No.1508 of 2005 in which conditional order was passed. It is the case of the respondents-plaintiffs that, when such conditional interim order was notified in the newspaper, they have come to know about the earlier agreement entered into by the appellants with respondent No.4 and they approached the 4 th respondent and handed over the original agreement dated 3.5.2005 and the receipt to the 4 th respondent. It is the specific case of the appellants that when they have come to know about the document dated 3.5.2005 in the suit filed by 4 th respondent herein, they have come to know tampering and fabrication of the document, as such they have filed I.A.No.61 of 2006 in CS(OS) No.1508 of 2005 under Section 340 of Cr.P.C., on 3.1.2006. The present suit in CS(OS) No.2046 is filed by the respondents-plaintiffs, subsequently, on 1.11.2006. In the said suit, the appellants-defendants have filed written statement on 25.1.2007 by raising specific preliminary objection that the agreement dated 3.5.2005 is forged and fabricated, as such, they are liable for prosecution under Section 195(1)(b) of Cr.P.C. In the written statement, apart from other allegations, specific plea is made that suit is barred in view of provisions of Section 16(c) of the Specific Relief Act, 1963, in absence of any plea of readiness and willingness by the respondents-plaintiffs. While admitting the arrangement entered into with the respondents-plaintiffs, it is the case of the appellants that the terms of the agreement were not concretized. As such almost all the necessary columns were left blank in the agreement dated 3.5.2005. It is not necessary to refer in detail the further averments made in the written statement for the disposal of this appeal before us. Subsequent to the filing of the written statement, the respondents-plaintiffs have filed the present application under Order XII rule 6 of CPC on 9.2.2007 for which reply was filed by the appellants on 19.3.2007. In the reply filed on behalf of the appellants and other defendants in I.A.No.1557 of 2006, opposing the relief sought for on the ground that in absence of any categorical and unconditional admissions, relief cannot be granted. The application in I.A.No.1557 of 2007 is filed only on the ground that in the bail petition filed by the appellants, in connection with the criminal case registered, arising out of a complaint filed by the 4 th respondent, the appellants counsel has pleaded his readiness to fulfill the contract entered into on 3.5.2005. Except the said plea of admission there is no other admission, claimed in the application. The learned Single Judge has rightly rejected the application vide order dated 24.7.2017. In the order the learned Single Judge of the High Court has held that in view of the stand of the appellants that the agreement dated 3.5.2005 is a fabricated one and the signatures of the 2 nd appellant are fabricated on pages 3 and 4 of the agreement, such issues can be resolved only after trial. But same is no ground to deliver judgment on claimed admissions.28. On appeal the Division Bench has set aside the order of the learned Single Judge and held that the appellants have admitted execution of the agreement dated 3.5.2005. At this stage, it is to be noticed that all throughout, the case of the appellants is that though they have entered into arrangement/agreement on 7.4.2005 and 3.5.2005 with the respondents-plaintiffs and received Rs. Two crores by way of cheque but such agreement is fabricated by forging signatures on pages 3 and 4 of the agreement. In view of such stand of the appellants, we are of the view that the mere admission of entering into arrangement/agreement dated 3.5.2005 cannot be termed as a categorical and unconditional admission for the purpose of delivering judgment by allowing the application filed under Order XII Rule 6 of CPC. It is to be noticed at this stage that even before filing of the present suit in CS(OS) NO.2046 of 2006, when the document dated 3.5.2005 was produced in the suit filed by the 4 th respondent Mr. Praveen Kumar Jolly, the appellants have filed I.A. No.61 of 2006 in CS(OS) No.1508 of 2005 on 3.1.2006. In the aforesaid I.A., there was a challenge to the genuineness of the agreement dated 3.5.2005 which application was subsequently disposed of on 7.12.2016. The present suit in CS(OS) No.2046 of 2006 was filed subsequently on 1.11.2006. The Division Bench of the High Court has proceeded on the premise that there is no dispute on the agreement to sell dated 3.5.2005. At this stage, it is to be noted that the suit in C.S.(OS) No.1508 of 2005 was filed for specific performance of the agreement by the 4 th respondent and on production of the agreement to sell dated 3.5.2005, they have already filed I.A.No.61 of 2006, alleging that there was a fabrication of the document dated 3.5.2005 and their signatures were forged on pages 3 and 4. In view of such plea of appellants, we are of the considered opinion that such admissions are erroneously treated as categorical and unconditional admissions by the Division Bench of the High Court for the purpose of disposal of the application filed under Order XII Rule 6 of CPC. Further, the Division Bench has relied on balance sheets of the first appellant company for the years 2004-05, 2005-06 and 2006-07 and also the letter alleged to have been addressed by the auditor. On the aforesaid documents, the plea of the appellants is that such documents also are forged and fabricated balance sheets which were submitted before the ROC by their auditor Mr. S.R. Varshney in connivance with Mr. T.R. Arya (respondent No.3 herein), who is a common chartered accountant for the appellants and respondent Nos. 1 and 2. Allegations and counter allegations are made by the parties in respect of balance sheets and other documents relating to the company, the merits of which can be gone into only at the time of trial where the parties will have opportunity of adducing evidence and explain their stand33. By applying the ratio laid down by this Court in the aforesaid judgments, it is to be held that there are no categorical and unconditional admissions, as claimed by the respondents-plaintiffs. In view of the stand of the appellants that, the pages 3 and 4 of the agreement dated 3.5.2005 are tampered and their signatures are fabricated, when specific issue is already framed, it cannot be said that there are categorical and unconditional admissions by the appellants. Mere admission of entering into arrangement/contract on 7.4.2005 and 3.5.2005 itself cannot be considered in isolation, without considering the further objections of the appellants that certain pages in the agreement are fabricated. In case the appellants prove that the agreement is fabricated as claimed, post trial it goes to the root of the case on the claim of the respondents- plaintiffs. Hence, we are of the view that the aforesaid judgments fully support the case of the appellants34. Learned counsel for the respondents-plaintiffs Sri Shyam Divan, relying on the judgment of this Court in the case of Uttam Singh Duggal & Co. Ltd. vs. United Bank of India (supra) has submitted that in view of the balance sheets and resolutions of the company, they are to be considered as admissions otherwise it will amount to narrowing down the scope of the Rule itself.In the aforesaid judgment itself, this Court has held that when a statement of admission is brought before the Court, as long as the party making the statement is given sufficient opportunity to explain such admissions, judgment on admission can be delivered. In the case on hand it is to be noted that the relief claimed under Order XII Rule 6 of CPC by filing a written application claiming admission only based on the statement made by the advocate in the bail application, and there is no other pleaded admissions, in the application filed by the respondents-plaintiffs. It is a trite principle that any amount of evidence is of no help, in absence of pleading and foundation in the application. It is true that when categorical and unconditional admissions are there, judgment on admission can be ordered, without narrowing down the Rule but at the same time the judicious discretion conferred on the court is to be exercised within the framework of the Rule but not beyond. Even on balance sheets of the company and the note of one of the Directors, it is the specific case of the appellants that the third respondent, in connivance with the respondents-plaintiffs, is also working against the appellants. In that view of the matter the claim of the respondents-plaintiffs relying on the documents relating to company is to be considered with reference to the defence of the appellants during trial in the suit35. In the judgment in the case of Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr. (supra), this Court has interpreted the expression otherwise as used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order XII Rule 6 is wider in comparison to provision of Order XII Rule 1 of CPC. It is true that after amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the expression otherwise inserted in Order XII Rule 6 is also to be considered within the framework of the Rule but not beyond. In any event, even in a given case, the admissions are categorical and unconditional, whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be considered having regard to facts of each case. There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC37. In this case it is to be noted that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving inquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentious issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone38. Further it is also to be noted that the suit is for specific performance of the agreement of sale. The relief sought is equitable and discretionary relief. The readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved. At first instance in the plaint filed on 1.11.2006 there was no such averment at all. Subsequent to the filing of the written statement, interlocutory application No.3370 of 2007 was filed on 20.3.2007 to incorporate the plea of readiness and willingness on the part of the respondents-plaintiffs in the plaint, which was allowed subsequently. The readiness and willingness on the part of the respondents-plaintiffs cannot be inferred merely on the ground that they have deposited the balance amount after the impugned order is passed. Even in absence of refusal of the application for amendment of written statement, it is obligatory on the part of the plaintiffs to prove that they were willing and ready to perform the contract, to claim the equitable relief of specific performance. In the judgment relied on by Sri P.S. Narsimha, learned senior counsel in the case of Aniglase Yohannan vs. Ramlatha and Ors. (supra), this Court has held that the basic principle behind Section 16(c) read with Explanation (ii) of the Specific Relief Act, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. In the aforesaid judgment this Court has further held that the court is to grant relief on the basis of the conduct of the person seeking relief.The said judgment of this Court also supports the plea of the appellants herein39. The learned counsels appearing for the appellants, have also contended stating that as per the directions of the High Court remaining balance amount, as per the agreement dated 03.05.2005, is not deposited by the respondents-plaintiffs, and the said amount is deposited by a third party who has no concern in the matter.In view of our findings recorded above on other issues, we are of the opinion that it is not necessary to deal with the said contention. | 1 | 9,265 | 2,638 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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during trial in the suit. 35. In the judgment in the case of Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr. (supra), this Court has interpreted the expression otherwise as used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order XII Rule 6 is wider in comparison to provision of Order XII Rule 1 of CPC. It is true that after amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the expression otherwise inserted in Order XII Rule 6 is also to be considered within the framework of the Rule but not beyond. In any event, even in a given case, the admissions are categorical and unconditional, whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be considered having regard to facts of each case. There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC. 36. In the judgment in the case of Usha Rectifier Corporation (India) Limited vs. Commissioner of Central Excise, New Delhi (supra) relied on by learned senior counsel Sri Shyam Divan, this Court has held that entries made in the balance sheets filed on behalf of the company are to be treated as admissions and the appellant cannot turn around and take stand, contrary to such admissions but in this case from the beginning it is the case of the appellants that the third respondent is in connivance with the respondents-plaintiffs. 37. In this case it is to be noted that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving inquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentious issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone. 38. Further it is also to be noted that the suit is for specific performance of the agreement of sale. The relief sought is equitable and discretionary relief. The readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved. At first instance in the plaint filed on 1.11.2006 there was no such averment at all. Subsequent to the filing of the written statement, interlocutory application No.3370 of 2007 was filed on 20.3.2007 to incorporate the plea of readiness and willingness on the part of the respondents-plaintiffs in the plaint, which was allowed subsequently. The readiness and willingness on the part of the respondents-plaintiffs cannot be inferred merely on the ground that they have deposited the balance amount after the impugned order is passed. Even in absence of refusal of the application for amendment of written statement, it is obligatory on the part of the plaintiffs to prove that they were willing and ready to perform the contract, to claim the equitable relief of specific performance. In the judgment relied on by Sri P.S. Narsimha, learned senior counsel in the case of Aniglase Yohannan vs. Ramlatha and Ors. (supra), this Court has held that the basic principle behind Section 16(c) read with Explanation (ii) of the Specific Relief Act, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. In the aforesaid judgment this Court has further held that the court is to grant relief on the basis of the conduct of the person seeking relief. Paras 12 and 13 of the judgment read as under:- 12.The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. 13. Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. On considering almost an identical fact situation it was held by this Court in Surya Narain Upadhyaya v. Ram Roop Pandey 1995 Supp (4) SCC 542 : AIR 1994 SC 542 ] that the plaintiff had substantiated his plea. The said judgment of this Court also supports the plea of the appellants herein. 39. The learned counsels appearing for the appellants, have also contended stating that as per the directions of the High Court remaining balance amount, as per the agreement dated 03.05.2005, is not deposited by the respondents-plaintiffs, and the said amount is deposited by a third party who has no concern in the matter. In view of our findings recorded above on other issues, we are of the opinion that it is not necessary to deal with the said contention.
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(supra) has submitted that in view of the balance sheets and resolutions of the company, they are to be considered as admissions otherwise it will amount to narrowing down the scope of the Rule itself.In the aforesaid judgment itself, this Court has held that when a statement of admission is brought before the Court, as long as the party making the statement is given sufficient opportunity to explain such admissions, judgment on admission can be delivered. In the case on hand it is to be noted that the relief claimed under Order XII Rule 6 of CPC by filing a written application claiming admission only based on the statement made by the advocate in the bail application, and there is no other pleaded admissions, in the application filed by the respondents-plaintiffs. It is a trite principle that any amount of evidence is of no help, in absence of pleading and foundation in the application. It is true that when categorical and unconditional admissions are there, judgment on admission can be ordered, without narrowing down the Rule but at the same time the judicious discretion conferred on the court is to be exercised within the framework of the Rule but not beyond. Even on balance sheets of the company and the note of one of the Directors, it is the specific case of the appellants that the third respondent, in connivance with the respondents-plaintiffs, is also working against the appellants. In that view of the matter the claim of the respondents-plaintiffs relying on the documents relating to company is to be considered with reference to the defence of the appellants during trial in the suit35. In the judgment in the case of Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr. (supra), this Court has interpreted the expression otherwise as used in Order XII Rule 6 of CPC and has held that the scope of the said provision of the Order XII Rule 6 is wider in comparison to provision of Order XII Rule 1 of CPC. It is true that after amendment, scope of the Rule under Order XII Rule 6 is expanded but at the same time the expression otherwise inserted in Order XII Rule 6 is also to be considered within the framework of the Rule but not beyond. In any event, even in a given case, the admissions are categorical and unconditional, whether any inference can be drawn on admissions having regard to documents placed on record, is a matter to be considered having regard to facts of each case. There cannot be any straight jacket formula to extend the benefit of Order XII Rule 6 of CPC37. In this case it is to be noted that the suit was filed on 1.11.2006 and written statement was filed on 25.01.2007 and the application under Order XII Rule 6 was filed on 9.2.2007. In year 2010 issues and additional issues were framed and trial is also commenced. In that view of the matter, there is no reason to pass the impugned order now for decreeing the suit on claimed admissions, in exercise of power under Order XII rule 6 of CPC at this stage. In view of the serious factual disputes and the defence of the appellants in the suit, it is not permissible for making roving inquiry for disposal of the application filed under Order XII Rule 6 of CPC. When the trial is already commenced, it is desirable to record findings on various contentious issues and disputes in the suit on merits by appreciating evidence but at the same time there is no reason or justification to decree the suit at this stage. For the aforesaid reasons, we are of the view that the impugned judgment of the High Court cannot be sustained and is liable to be set aside on this ground alone38. Further it is also to be noted that the suit is for specific performance of the agreement of sale. The relief sought is equitable and discretionary relief. The readiness and willingness on the part of plaintiffs to execute the document is to be pleaded and proved. At first instance in the plaint filed on 1.11.2006 there was no such averment at all. Subsequent to the filing of the written statement, interlocutory application No.3370 of 2007 was filed on 20.3.2007 to incorporate the plea of readiness and willingness on the part of the respondents-plaintiffs in the plaint, which was allowed subsequently. The readiness and willingness on the part of the respondents-plaintiffs cannot be inferred merely on the ground that they have deposited the balance amount after the impugned order is passed. Even in absence of refusal of the application for amendment of written statement, it is obligatory on the part of the plaintiffs to prove that they were willing and ready to perform the contract, to claim the equitable relief of specific performance. In the judgment relied on by Sri P.S. Narsimha, learned senior counsel in the case of Aniglase Yohannan vs. Ramlatha and Ors. (supra), this Court has held that the basic principle behind Section 16(c) read with Explanation (ii) of the Specific Relief Act, is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. In the aforesaid judgment this Court has further held that the court is to grant relief on the basis of the conduct of the person seeking relief.The said judgment of this Court also supports the plea of the appellants herein39. The learned counsels appearing for the appellants, have also contended stating that as per the directions of the High Court remaining balance amount, as per the agreement dated 03.05.2005, is not deposited by the respondents-plaintiffs, and the said amount is deposited by a third party who has no concern in the matter.In view of our findings recorded above on other issues, we are of the opinion that it is not necessary to deal with the said contention.
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NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY Vs. COMMISSIONER INCOME TAX APPEALS(41) | Now coming to the direction of the High Court regarding deduction of tax at source on the payment of lease rent as per Section 194-I of the Income Tax Act, 1961, the authority has relied on Circular dated 30.01.1995. Section 194¬I of the Income Tax Act provides as follows:¬?Section 194¬I : Rent 2[Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident] any income by way of rent, shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income¬tax thereon at the rate of 4[(a) two per cent. for the use of any machinery or plant or equipment; and (b) ten per cent. for the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:] Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed 5[one hundred eighty thousand rupees] : 6[Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such income by way of rent is credited or paid, shall be liable to deduct income¬tax under this section.] 1[Provided also that no deduction shall be made under this section where the income by way of rent is credited or paid to a business trust, being a real estate investment trust, in respect of any real estate asset, referred to in clause (23FCA) of section 10, owned directly by such business trust.] Explanation : For the purposes of this section,¬ 2[(i) ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of (either separately or together) any,¬ (a) land; or (b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee;] (ii) where any income is credited to any account, whether called ?Suspense account? or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly.?14. The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under Section 194¬I applies in case of payment by way of rent to Government, statutory authorities referred to in Section 10(20A) and local authorities whose income under the head ?Income from house property? or ?Income from other sources? is exempt from income¬tax.? 15. In Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt from income¬tax under Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following was stated:¬"In view of the aforesaid, there is no requirement to deduct income¬tax at source on income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deduct income¬tax at source from income by way of rent if the person responsible for paying it is satisfied about their tax¬exempt status under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.?16. A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. 17. | 0[ds]11. Insofar as the appeals filed by Noida/Greater Noida are concerned, the principal submission raised by the appellant is applicability of Section 10(20) of the Income Tax Act. Learned counsel for the Noida has submitted that the said issue has already been addressed in detail in Civil Appeal No. 792-793 of 2014. By our judgment of the date in Civil Appeal No. 792-793 of 2014 New Okhla Industrial Development Authority Vs. Commissioner of Income Tax- Appeals & Ors., we have held that Noida is not a ?local authority? within the meaning of Section 10(20) of the Income Tax Act as amended by the Finance Act, 2002 w.e.f. 01.04.2003. For the reasons given by our judgment of the date in the above appeals, this submission has to be rejected.Now coming to the appeals filed by the revenue, infar as the question relating to exemption under Section 194A(3) (iii)(f) by virtue of notification dated 24.10.1970, i.e. the exemption of interest income of the Noida, we have already decided the said controversy in CIVIL APPEAL NO._________ OF 2018 (arising out of SLP (C) No. 3168 of 2017)Commissioner of Income Tax(TDS) Kanpur and Anr. Vs. Canara Bank. Having held that Noida is covered by the notification dated 22.10.1970, the judgment of the Delhi High Court holding that Noida/Greater Noida is entitled for the benefit of Section 194A(3)(iii)(f) has to be approved.The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under SectionIn Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt fromunder Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following wasview of the aforesaid, there is no requirement to deductincome-tax at sourceon income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deductincome-tax at sourcefrom income by way of rent if the person responsible for paying it is satisfied about theirstatus under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003.The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. | 0 | 3,222 | 785 | ### Instruction:
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Now coming to the direction of the High Court regarding deduction of tax at source on the payment of lease rent as per Section 194-I of the Income Tax Act, 1961, the authority has relied on Circular dated 30.01.1995. Section 194¬I of the Income Tax Act provides as follows:¬?Section 194¬I : Rent 2[Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident] any income by way of rent, shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income¬tax thereon at the rate of 4[(a) two per cent. for the use of any machinery or plant or equipment; and (b) ten per cent. for the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:] Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed 5[one hundred eighty thousand rupees] : 6[Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such income by way of rent is credited or paid, shall be liable to deduct income¬tax under this section.] 1[Provided also that no deduction shall be made under this section where the income by way of rent is credited or paid to a business trust, being a real estate investment trust, in respect of any real estate asset, referred to in clause (23FCA) of section 10, owned directly by such business trust.] Explanation : For the purposes of this section,¬ 2[(i) ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of (either separately or together) any,¬ (a) land; or (b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee;] (ii) where any income is credited to any account, whether called ?Suspense account? or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly.?14. The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under Section 194¬I applies in case of payment by way of rent to Government, statutory authorities referred to in Section 10(20A) and local authorities whose income under the head ?Income from house property? or ?Income from other sources? is exempt from income¬tax.? 15. In Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt from income¬tax under Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following was stated:¬"In view of the aforesaid, there is no requirement to deduct income¬tax at source on income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deduct income¬tax at source from income by way of rent if the person responsible for paying it is satisfied about their tax¬exempt status under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.?16. A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. 17.
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11. Insofar as the appeals filed by Noida/Greater Noida are concerned, the principal submission raised by the appellant is applicability of Section 10(20) of the Income Tax Act. Learned counsel for the Noida has submitted that the said issue has already been addressed in detail in Civil Appeal No. 792-793 of 2014. By our judgment of the date in Civil Appeal No. 792-793 of 2014 New Okhla Industrial Development Authority Vs. Commissioner of Income Tax- Appeals & Ors., we have held that Noida is not a ?local authority? within the meaning of Section 10(20) of the Income Tax Act as amended by the Finance Act, 2002 w.e.f. 01.04.2003. For the reasons given by our judgment of the date in the above appeals, this submission has to be rejected.Now coming to the appeals filed by the revenue, infar as the question relating to exemption under Section 194A(3) (iii)(f) by virtue of notification dated 24.10.1970, i.e. the exemption of interest income of the Noida, we have already decided the said controversy in CIVIL APPEAL NO._________ OF 2018 (arising out of SLP (C) No. 3168 of 2017)Commissioner of Income Tax(TDS) Kanpur and Anr. Vs. Canara Bank. Having held that Noida is covered by the notification dated 22.10.1970, the judgment of the Delhi High Court holding that Noida/Greater Noida is entitled for the benefit of Section 194A(3)(iii)(f) has to be approved.The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under SectionIn Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt fromunder Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following wasview of the aforesaid, there is no requirement to deductincome-tax at sourceon income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deductincome-tax at sourcefrom income by way of rent if the person responsible for paying it is satisfied about theirstatus under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003.The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21.
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NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS Vs. UNION OF INDIA | what she had done and was supported by the other contemnors. In the light of such admission, the summary procedure followed by Pasayat, J. cannot be faulted. xxx xxx xxx 35. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not to merely scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower its dignity in the eyes of the public. 11. Leila David (6) (supra) has been followed in Ram Niranjan Roy v. State of Bihar & Ors., (2014) 12 SCC 11 thus: 16. Thus, when contempt is committed in the face of the High Court or the Supreme Court to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public. The courts exist for the people. The courts cherish the faith reposed in them by people. To prevent erosion of that faith, contempt committed in the face of the court need a strict treatment. The appellant, as observed by the High Court was not remorseful. He did not file any affidavit tendering apology nor did he orally tell the High Court that he was remorseful and he wanted to tender apology. Even in this Court he has not tendered apology. Therefore, since the contempt was gross and it was committed in the face of the High Court, the learned Judges had to take immediate action to maintain honour and dignity of the High Court. There was no question of giving the appellant any opportunity to make his defence. This submission of the appellant must, therefore, be rejected. 12. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 , a three- Judge Bench of this Court examined the law and stated that a direction prohibiting the advocate from appearing in a Court for a specified period was a punishment that could be imposed in the contempt jurisdiction. After examining the judgments on the point, this Court held: 238. In Supreme Court Bar Assn. [(1998) 4 SCC 409] the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. [Though in para 80 of Supreme Court Bar Assn. case [(1998) 4 SCC 409] , as seen earlier (in para 230 herein), there is an observation that in a given case it might be possible for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt.] In Ex. Capt. Harish Uppal [(2003) 2 SCC 45] it was seen not as punishment for professional misconduct but as a measure necessary to regulate the courts proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the courts record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an inconvenient court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately, these examples are not from imagination. These things are happening more frequently than we care to acknowledge. 239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactors conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any courts functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time. 240. It is already explained in Ex. Capt. Harish Uppal [(2003) 2 SCC 45] that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision in Ex. Capt. Harish Uppal v. Union of India [(2003) 2 SCC 45] places the issue in correct perspective and must be followed to answer the question at issue before us. (emphasis supplied) | 0[ds]2. We are of the view that the only reason for taking the learned Senior Advocates name, without there being any relevance to his name in the present case, is to browbeat the Court and embarrass one of us.3. This is not the first time that this particular advocate has attempted to browbeat and insult Judges of this Court. In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive. We also find that this advocate is briefed to appear in hopeless cases and attempts, by browbeating the Court, to get discretionary orders, which no Court is otherwise prepared to give. We have found that the vast majority of appearances by this advocate before us have been in cases in which debtors have persistently defaulted, as a result of which their mortgaged properties have to be handed over to secured creditors to be sold in auction. It is at this stage that Shri Nedumpara is briefed to somehow put off the auction sale. Even the present Writ Petition is a case in which a review petition against the judgment of this Court in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766 has already been dismissed. With full knowledge that a second review petition is barred by Order 47, Rule 5 of the Supreme Court Rules, 2013, Shri Nedumpara seeks a second review in the form of a writ petition filed under Article 32 of the Constitution of India.9. When contempt is committed in the face of the Court, judges hands are not tied behind their backs. The majesty of this Court as well as the administration of justice both demand that contemptuous behavior of this kind be dealt with sternly. An early judgment of this Court in Sukhdev Singh Sodhi v. Chief Justice S. Teja Singh, 1954 SCR 454 proceeded cautiously, but made it clear that where a judge is personally attacked, it would be proper for the judge to deal with the matter himself, in cases of contempt in the face of the Court. This Court stated the law thus:We wish however to add that though we have no power to order a transfer in an original petition of this kind we consider it desirable on general principles of justice that a judge who has been personally attacked should not as far as possible hear a contempt matter which, to that extent, concerns him personally. It is otherwise when the attack is not directed against him personally. We do not lay down any general rule because there may be cases where that is impossible, as for example in a court where there is only one judge or two and both are attacked. Other cases may also arise where it is more convenient and proper for the Judge to deal with the matter himself, as for example in a contempt in facie curiae. All we can say is that this must be left to the good sense of the judges themselves who, we are confident, will comfort themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind the oft quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by Judges who have no personal interest or concern in his case.(at pp. 464-465) (emphasis supplied)10. In Leila David (2) v. State of Maharashtra, (2009) 4 SCC 578 , two learned Judges differed on whether contempt in the face of the Court can be dealt with summarily, without any need of issuing notice to the contemnors, and whether punishment can be inflicted upon them there and then. Pasayat, J. held that this is, indeed, the duty of the Court. Ganguly, J. differed. A three-Judge Bench of this Court, in Leila David (6) v. State of Maharashtra, (2009) 10 SCC 337 , settled the law, making it clear that Pasayat, J.s view was the correct view in law. This Court held:28. As far as the suo motu proceedings for contempt are concerned, we are of the view that Arijit Pasayat, J. was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of the Constitution of India. Although, section 14 of the Contempt of Courts Act, 1971, lays down the procedure to be followed in cases of criminal contempt in the face of the court, it does not preclude the court from taking recourse to summary proceedings when a deliberate and wilful contumacious incident takes place in front of their eyes and the public at large, including Senior Law Officers, such as the Attorney General for India who was then the Solicitor General of India.29. While, as pointed out by Ganguly, J., it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant.30. The incident which took place in the courtroom presided over by Pasayat, J. was within the confines of the courtroom and was witnessed by a large number of people and the throwing of the footwear was also admitted by Dr. Sarita Parikh, who without expressing any regret for her conduct stood by what she had done and was supported by the other contemnors. In the light of such admission, the summary procedure followed by Pasayat, J. cannot be faulted.xxx xxx xxx35. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not to merely scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower its dignity in the eyes of the public.11. Leila David (6) (supra) has been followed in Ram Niranjan Roy v. State of Bihar & Ors., (2014) 12 SCC 11 thus:16. Thus, when contempt is committed in the face of the High Court or the Supreme Court to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public. The courts exist for the people. The courts cherish the faith reposed in them by people. To prevent erosion of that faith, contempt committed in the face of the court need a strict treatment. The appellant, as observed by the High Court was not remorseful. He did not file any affidavit tendering apology nor did he orally tell the High Court that he was remorseful and he wanted to tender apology. Even in this Court he has not tendered apology. Therefore, since the contempt was gross and it was committed in the face of the High Court, the learned Judges had to take immediate action to maintain honour and dignity of the High Court. There was no question of giving the appellant any opportunity to make his defence. This submission of the appellant must, therefore, be rejected.12. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 , a three- Judge Bench of this Court examined the law and stated that a direction prohibiting the advocate from appearing in a Court for a specified period was a punishment that could be imposed in the contempt jurisdiction. After examining the judgments on the point, this Court held:238. In Supreme Court Bar Assn. [(1998) 4 SCC 409] the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. [Though in para 80 of Supreme Court Bar Assn. case [(1998) 4 SCC 409] , as seen earlier (in para 230 herein), there is an observation that in a given case it might be possible for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt.] In Ex. Capt. Harish Uppal [(2003) 2 SCC 45] it was seen not as punishment for professional misconduct but as a measure necessary to regulate the courts proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the courts record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an inconvenient court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately, these examples are not from imagination. These things are happening more frequently than we care to acknowledge.239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactors conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any courts functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.240. It is already explained in Ex. Capt. Harish Uppal [(2003) 2 SCC 45] that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision in Ex. Capt. Harish Uppal v. Union of India [(2003) 2 SCC 45] places the issue in correct perspective and must be followed to answer the question at issue before us. | 0 | 9,662 | 2,161 | ### Instruction:
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what she had done and was supported by the other contemnors. In the light of such admission, the summary procedure followed by Pasayat, J. cannot be faulted. xxx xxx xxx 35. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not to merely scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower its dignity in the eyes of the public. 11. Leila David (6) (supra) has been followed in Ram Niranjan Roy v. State of Bihar & Ors., (2014) 12 SCC 11 thus: 16. Thus, when contempt is committed in the face of the High Court or the Supreme Court to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public. The courts exist for the people. The courts cherish the faith reposed in them by people. To prevent erosion of that faith, contempt committed in the face of the court need a strict treatment. The appellant, as observed by the High Court was not remorseful. He did not file any affidavit tendering apology nor did he orally tell the High Court that he was remorseful and he wanted to tender apology. Even in this Court he has not tendered apology. Therefore, since the contempt was gross and it was committed in the face of the High Court, the learned Judges had to take immediate action to maintain honour and dignity of the High Court. There was no question of giving the appellant any opportunity to make his defence. This submission of the appellant must, therefore, be rejected. 12. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 , a three- Judge Bench of this Court examined the law and stated that a direction prohibiting the advocate from appearing in a Court for a specified period was a punishment that could be imposed in the contempt jurisdiction. After examining the judgments on the point, this Court held: 238. In Supreme Court Bar Assn. [(1998) 4 SCC 409] the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. [Though in para 80 of Supreme Court Bar Assn. case [(1998) 4 SCC 409] , as seen earlier (in para 230 herein), there is an observation that in a given case it might be possible for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt.] In Ex. Capt. Harish Uppal [(2003) 2 SCC 45] it was seen not as punishment for professional misconduct but as a measure necessary to regulate the courts proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the courts record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an inconvenient court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately, these examples are not from imagination. These things are happening more frequently than we care to acknowledge. 239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactors conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any courts functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time. 240. It is already explained in Ex. Capt. Harish Uppal [(2003) 2 SCC 45] that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision in Ex. Capt. Harish Uppal v. Union of India [(2003) 2 SCC 45] places the issue in correct perspective and must be followed to answer the question at issue before us. (emphasis supplied)
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who without expressing any regret for her conduct stood by what she had done and was supported by the other contemnors. In the light of such admission, the summary procedure followed by Pasayat, J. cannot be faulted.xxx xxx xxx35. Section 14 of the Contempt of Courts Act no doubt contemplates issuance of notice and an opportunity to the contemnors to answer the charges in the notice to satisfy the principles of natural justice. However, where an incident of the instant nature takes place within the presence and sight of the learned Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for the dignity and majesty of the courts to be maintained. When an object, such as a footwear, is thrown at the Presiding Officer in a court proceeding, the object is not to merely scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower its dignity in the eyes of the public.11. Leila David (6) (supra) has been followed in Ram Niranjan Roy v. State of Bihar & Ors., (2014) 12 SCC 11 thus:16. Thus, when contempt is committed in the face of the High Court or the Supreme Court to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public. The courts exist for the people. The courts cherish the faith reposed in them by people. To prevent erosion of that faith, contempt committed in the face of the court need a strict treatment. The appellant, as observed by the High Court was not remorseful. He did not file any affidavit tendering apology nor did he orally tell the High Court that he was remorseful and he wanted to tender apology. Even in this Court he has not tendered apology. Therefore, since the contempt was gross and it was committed in the face of the High Court, the learned Judges had to take immediate action to maintain honour and dignity of the High Court. There was no question of giving the appellant any opportunity to make his defence. This submission of the appellant must, therefore, be rejected.12. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106 , a three- Judge Bench of this Court examined the law and stated that a direction prohibiting the advocate from appearing in a Court for a specified period was a punishment that could be imposed in the contempt jurisdiction. After examining the judgments on the point, this Court held:238. In Supreme Court Bar Assn. [(1998) 4 SCC 409] the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. [Though in para 80 of Supreme Court Bar Assn. case [(1998) 4 SCC 409] , as seen earlier (in para 230 herein), there is an observation that in a given case it might be possible for this Court or the High Court, to prevent the contemnor advocate to appear before it till he purges himself of the contempt.] In Ex. Capt. Harish Uppal [(2003) 2 SCC 45] it was seen not as punishment for professional misconduct but as a measure necessary to regulate the courts proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the courts record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an inconvenient court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately, these examples are not from imagination. These things are happening more frequently than we care to acknowledge.239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactors conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any courts functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.240. It is already explained in Ex. Capt. Harish Uppal [(2003) 2 SCC 45] that a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision in Ex. Capt. Harish Uppal v. Union of India [(2003) 2 SCC 45] places the issue in correct perspective and must be followed to answer the question at issue before us.
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Commissioner of Income Tax Vs. P.M. Muthuraman Chettiar & Another | two were working partners in-charge of the management of the business. The Rangoon firm suffered a loss and as no accounts were said to have been maintained, a statement of affairs as on December 31, 1946 of the Rangoon firm was taken and this showed a loss of Rs. 43,969. The partnership was later dissolved and a registered deed of dissolution of the firm was executed on January 13, 1947, under which the assessee agreed to bear the whole loss of Rs. 43,969 as the other partners were unable to contribute their share of the loss and also to take over the assets and liabilities of the Rangoon firm as on December 31 1946. In the books maintained by the assessee at Madras for the period ending March 31, 1847, the sum of Rs. 43,969 was adjusted to the capital account of the assessee and in the return of the total income filed for the assessment year 1947-48, the assessee claimed that the loss of Rs. 43,969 from the Rangoon firm should be allowed as a set off. The Income-tax authorities negatived the claim of the assessee to set off either wholly or partly the loss of Rs. 43,969. On appeal to the Tribunal it held that the Rangoon firm was a different entity from the assessee and, therefore, he was not entitled to any set off of the loss incurred lay the Rangroon firm and dismissed the appeal. A case was then stated under S. 66 (2) of the Income-tax Act to the High Court on the following question of law, namely:"Whether on the facts and circumstances of the case the share of the assessees loss of the sum of Rs. 43,969 cannot be set off against the profits of the assessees business in arriving at the total assessable income?”The High Court answered the question in favour of the assessee.5. The only point for decision in the two appeals is whether the High Court has correctly answered the two questions.6. It appears that in the High Court the point urged on behalf of the present appellant was that there was no identity between the unit which derived the income and the units which sustained the loss and on this ground it was urged that there could be no set off under S. 10 which permitted the loss incurred by the same unit being set off against the profit derived by it; in other words, the argument was that under income-tax law when an individual or the Karta of a Hindu undivided family was a partner in a firm, the unit of assessment in regard to the firms profits or gains was the firm itself which was an entity separate and distinct from the partners composing it, notwithstanding that for the purpose of computing the total income of an individual, his share of the profits from the firm has to be included in his total income. The High Court repelled this argument and, in our opinion. rightly repelled it in the circumstances of these two cases. A similar argument was considered and repelled by the Privy Council in Arunachalam Chettiar v. Commissioner of Income-tax, Madras, 1936-4 ITR 173: (AIR 1936 PC 133 ). It was observed therein that whether a firm was registered or unregistered, a partners share of the loss in the firm could be set off against the profits and gains made by him in his individual business. That principle applies in the present cases, even though after the amendment of the Income-tax Act in 1939 the position of a partner in an unregistered firm may stand on a different footing, a distinction which is not material for the present cases.7. The Learned Advocate for the appellant has not supported the case sought to be made out by the Revenue in the High Court. He has, however, relied on the second proviso to S. 24 (1) of the Income-tax Act. It seems clear to us that that proviso has no application to the facts of the cases under our consideration. In Commissioner of Income-tax, Mysore, Travancore-Cochin and Coorg v. Indo-Mercantile Bank Ltd., l959-36 ITR l: (AIR 1959 SC 713 ), this Court pointed out that the object of S. 24 (1) of the Indian Income-tax Act was to allow the set off of loss of profits or gains under one head against income, profits or gains under any other head, and there was nothing in the section or in the first proviso thereto which would favour the disintegration of the head "business"; it further pointed out that S. 10 of the Indian Income-tax Act did not distinguish between business in British India and business in an Indian State or so divide business. The ratio of that decision must apply to the cases under our consideration and the assessees are entitled to set off losses which they had suffered in business outside the taxable, territories against profits and gains made from business within the taxable territories. It is worthy of note that though the profits of each distinct business may have to he computed separately, the tax is chargeable under S. 10, not on the separate income of every distinct business, but on the aggregate of the profits of all the businesses carried on by the assessee. It follows from this that where the assessee carries on several businesses, he is entitled under S. l0 old not under S. 24 (1), to set off losses in one business against profits in another. If as we hold that S. 24 (1) has no application to the facts of the present cases, the second proviso thereto can also have no application. Moreover, the second proviso to S. 24 (1) applies only where the assessee is an unregistered firm. That is not the case here. The assessees before us are, in one case, a Hindu undivided family and, in the other, an individual. It is obvious, therefore, that the second proviso to S. 24 (1) can have no application in these cases. | 1[ds]6. It appears that in the High Court the point urged on behalf of the present appellant was that there was no identity between the unit which derived the income and the units which sustained the loss and on this ground it was urged that there could be no set off under S. 10 which permitted the loss incurred by the same unit being set off against the profit derived by it; in other words, the argument was that underlaw when an individual or the Karta of a Hindu undivided family was a partner in a firm, the unit of assessment in regard to the firms profits or gains was the firm itself which was an entity separate and distinct from the partners composing it, notwithstanding that for the purpose of computing the total income of an individual, his share of the profits from the firm has to be included in his total income. The High Court repelled this argument and, in our opinion. rightly repelled it in the circumstances of these twowas observed therein that whether a firm was registered or unregistered, a partners share of the loss in the firm could be set off against the profits and gains made by him in his individual business. That principle applies in the present cases, even though after the amendment of theAct in 1939 the position of a partner in an unregistered firm may stand on a different footing, a distinction which is not material for the presentseems clear to us that that proviso has no application to the facts of the cases under our consideration. In Commissioner ofin and Coorg v.ITR l: (AIR 1959 SC 713 ), this Court pointed out that the object of S. 24 (1) of the IndianAct was to allow the set off of loss of profits or gains under one head against income, profits or gains under any other head, and there was nothing in the section or in the first proviso thereto which would favour the disintegration of the head "business"; it further pointed out that S. 10 of the IndianAct did not distinguish between business in British India and business in an Indian State or so divide business. The ratio of that decision must apply to the cases under our consideration and the assessees are entitled to set off losses which they had suffered in business outside the taxable, territories against profits and gains made from business within the taxable territories. It is worthy of note that though the profits of each distinct business may have to he computed separately, the tax is chargeable under S. 10, not on the separate income of every distinct business, but on the aggregate of the profits of all the businesses carried on by the assessee. It follows from this that where the assessee carries on several businesses, he is entitled under S. l0 old not under S. 24 (1), to set off losses in one business against profits in another. If as we hold that S. 24 (1) has no application to the facts of the present cases, the second proviso thereto can also have no application. Moreover, the second proviso to S. 24 (1) applies only where the assessee is an unregistered firm. That is not the case here. The assessees before us are, in one case, a Hindu undivided family and, in the other, an individual. It is obvious, therefore, that the second proviso to S. 24 (1) can have no application in these cases. | 1 | 1,698 | 641 | ### Instruction:
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two were working partners in-charge of the management of the business. The Rangoon firm suffered a loss and as no accounts were said to have been maintained, a statement of affairs as on December 31, 1946 of the Rangoon firm was taken and this showed a loss of Rs. 43,969. The partnership was later dissolved and a registered deed of dissolution of the firm was executed on January 13, 1947, under which the assessee agreed to bear the whole loss of Rs. 43,969 as the other partners were unable to contribute their share of the loss and also to take over the assets and liabilities of the Rangoon firm as on December 31 1946. In the books maintained by the assessee at Madras for the period ending March 31, 1847, the sum of Rs. 43,969 was adjusted to the capital account of the assessee and in the return of the total income filed for the assessment year 1947-48, the assessee claimed that the loss of Rs. 43,969 from the Rangoon firm should be allowed as a set off. The Income-tax authorities negatived the claim of the assessee to set off either wholly or partly the loss of Rs. 43,969. On appeal to the Tribunal it held that the Rangoon firm was a different entity from the assessee and, therefore, he was not entitled to any set off of the loss incurred lay the Rangroon firm and dismissed the appeal. A case was then stated under S. 66 (2) of the Income-tax Act to the High Court on the following question of law, namely:"Whether on the facts and circumstances of the case the share of the assessees loss of the sum of Rs. 43,969 cannot be set off against the profits of the assessees business in arriving at the total assessable income?”The High Court answered the question in favour of the assessee.5. The only point for decision in the two appeals is whether the High Court has correctly answered the two questions.6. It appears that in the High Court the point urged on behalf of the present appellant was that there was no identity between the unit which derived the income and the units which sustained the loss and on this ground it was urged that there could be no set off under S. 10 which permitted the loss incurred by the same unit being set off against the profit derived by it; in other words, the argument was that under income-tax law when an individual or the Karta of a Hindu undivided family was a partner in a firm, the unit of assessment in regard to the firms profits or gains was the firm itself which was an entity separate and distinct from the partners composing it, notwithstanding that for the purpose of computing the total income of an individual, his share of the profits from the firm has to be included in his total income. The High Court repelled this argument and, in our opinion. rightly repelled it in the circumstances of these two cases. A similar argument was considered and repelled by the Privy Council in Arunachalam Chettiar v. Commissioner of Income-tax, Madras, 1936-4 ITR 173: (AIR 1936 PC 133 ). It was observed therein that whether a firm was registered or unregistered, a partners share of the loss in the firm could be set off against the profits and gains made by him in his individual business. That principle applies in the present cases, even though after the amendment of the Income-tax Act in 1939 the position of a partner in an unregistered firm may stand on a different footing, a distinction which is not material for the present cases.7. The Learned Advocate for the appellant has not supported the case sought to be made out by the Revenue in the High Court. He has, however, relied on the second proviso to S. 24 (1) of the Income-tax Act. It seems clear to us that that proviso has no application to the facts of the cases under our consideration. In Commissioner of Income-tax, Mysore, Travancore-Cochin and Coorg v. Indo-Mercantile Bank Ltd., l959-36 ITR l: (AIR 1959 SC 713 ), this Court pointed out that the object of S. 24 (1) of the Indian Income-tax Act was to allow the set off of loss of profits or gains under one head against income, profits or gains under any other head, and there was nothing in the section or in the first proviso thereto which would favour the disintegration of the head "business"; it further pointed out that S. 10 of the Indian Income-tax Act did not distinguish between business in British India and business in an Indian State or so divide business. The ratio of that decision must apply to the cases under our consideration and the assessees are entitled to set off losses which they had suffered in business outside the taxable, territories against profits and gains made from business within the taxable territories. It is worthy of note that though the profits of each distinct business may have to he computed separately, the tax is chargeable under S. 10, not on the separate income of every distinct business, but on the aggregate of the profits of all the businesses carried on by the assessee. It follows from this that where the assessee carries on several businesses, he is entitled under S. l0 old not under S. 24 (1), to set off losses in one business against profits in another. If as we hold that S. 24 (1) has no application to the facts of the present cases, the second proviso thereto can also have no application. Moreover, the second proviso to S. 24 (1) applies only where the assessee is an unregistered firm. That is not the case here. The assessees before us are, in one case, a Hindu undivided family and, in the other, an individual. It is obvious, therefore, that the second proviso to S. 24 (1) can have no application in these cases.
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6. It appears that in the High Court the point urged on behalf of the present appellant was that there was no identity between the unit which derived the income and the units which sustained the loss and on this ground it was urged that there could be no set off under S. 10 which permitted the loss incurred by the same unit being set off against the profit derived by it; in other words, the argument was that underlaw when an individual or the Karta of a Hindu undivided family was a partner in a firm, the unit of assessment in regard to the firms profits or gains was the firm itself which was an entity separate and distinct from the partners composing it, notwithstanding that for the purpose of computing the total income of an individual, his share of the profits from the firm has to be included in his total income. The High Court repelled this argument and, in our opinion. rightly repelled it in the circumstances of these twowas observed therein that whether a firm was registered or unregistered, a partners share of the loss in the firm could be set off against the profits and gains made by him in his individual business. That principle applies in the present cases, even though after the amendment of theAct in 1939 the position of a partner in an unregistered firm may stand on a different footing, a distinction which is not material for the presentseems clear to us that that proviso has no application to the facts of the cases under our consideration. In Commissioner ofin and Coorg v.ITR l: (AIR 1959 SC 713 ), this Court pointed out that the object of S. 24 (1) of the IndianAct was to allow the set off of loss of profits or gains under one head against income, profits or gains under any other head, and there was nothing in the section or in the first proviso thereto which would favour the disintegration of the head "business"; it further pointed out that S. 10 of the IndianAct did not distinguish between business in British India and business in an Indian State or so divide business. The ratio of that decision must apply to the cases under our consideration and the assessees are entitled to set off losses which they had suffered in business outside the taxable, territories against profits and gains made from business within the taxable territories. It is worthy of note that though the profits of each distinct business may have to he computed separately, the tax is chargeable under S. 10, not on the separate income of every distinct business, but on the aggregate of the profits of all the businesses carried on by the assessee. It follows from this that where the assessee carries on several businesses, he is entitled under S. l0 old not under S. 24 (1), to set off losses in one business against profits in another. If as we hold that S. 24 (1) has no application to the facts of the present cases, the second proviso thereto can also have no application. Moreover, the second proviso to S. 24 (1) applies only where the assessee is an unregistered firm. That is not the case here. The assessees before us are, in one case, a Hindu undivided family and, in the other, an individual. It is obvious, therefore, that the second proviso to S. 24 (1) can have no application in these cases.
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INDIBILY CREATIVE PVT. LTD Vs. GOVT. OF WEST BENGAL | Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power. Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognizes the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticized. Those who disagree have a simple expedient : of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate ideas is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed. When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperiled by a cloud of opacity and arbitrary state behaviour. 17. As this case indicates, a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including contracts for the exhibition of the film. The wielding of extra constitutional authority is destructive of legitimate expectations. Under the constitutional scheme, restrictions can only be imposed by or under a law which is made by the State. The State of West Bengal has informed the Court that it had not taken recourse to its statutory powers either under state or union legislation. If that be so, there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the interest of the guests. We have no manner of doubt that this was a clear abuse of public power. The police are entrusted with enforcing law. In the present case, the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission. 18. The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing negative restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of similar misadventures. This cannot be countenanced in a free society. Freedom is not a supplicant to power. 19. This leads us to the issue of relief. By the orders of this Court dated 15 March 2019 and 25 March 2019 several directions were issued to the state of West Bengal, the Principal Secretary, Home and the Director General of Police. We maintain and confirm the directions which have been issued. We issue a Mandamus restraining the state from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot. The state shall specifically ensure that the properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety. 20. As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. | 1[ds]12. From the narration of facts, it has become evident that Bhobishyoter Bhoot was released in theatres in West Bengal, both within and outside Kolkata on 15 February 2019. The release of the film was preceded a few days earlier by a letter on 11 February 2019 of the Joint Commissioner of Police(Intelligence) in the Special Branch to the producer seeking a private screening of the movie for a few senior officials at this end at the earliest . This was because, as he described, the inputs his office had received that the contents of the film may hurt public sentiments which may lead to political law and order issues . The film was pulled down by a majority of the theatres and out of forty eight exhibitors, only two continued to display the film. This Court has been informed by the State of West Bengal that it has not taken recourse to its powers either under the West Bengal Cinemas (Regulation) Act 1954 or the Cinematograph Act 1952. Yet, barring a couple of exceptions, all the theatre owners and exhibitors pulled the film off the radar. One of them, INOX Leisure Ltd eventually addressed a communication on 4 March 2019 to the producer stating that they were directed by the authorities to discontinue screening of the film keeping in mind the interest of the guests. In this backdrop, the legitimate grievance before the Court is that absent a recourse to the exercise of statutory power, the state and its agencies have resorted to extra constitutional means to abrogate the fundamental rights of the producer, director and the viewers16. The police are not in a free society the self-appointed guardians of public morality. The uniformed authority of their force is subject to the rule of law. They cannot arrogate to themselves the authority to be willing allies in the suppression of dissent and obstruction of speech and expression. The Joint Commissioner was not unmindful of the fact that the film had been slated for release within a few days of his communication in theatres across the city of Kolkata and the State. If there was any doubt whatever over the entitlement of the producers to have the film exhibited, it was laid to rest when the producers immediately informed him of the film being CBFC certified. The statutory authority to certify a film for public exhibition is vested in the CBFC under the provisions of the Cinematograph Act 1952. Sections 4, 5, 5A and 5B provided a statutory code for the examination and certification of films for publicexhibition. Sub-section (1) of Section 5Bprovides for the grounds on which a film may not be certified for public exhibition. An order refusing to grant certification is subject to the remedies stipulated in the Act. The State Act (Section 6 of the West Bengal Cinemas (Regulation) Act 1954) and the Central Act (Section 13 of the Cinematograph Act 1952) provide the conditions in which the state government, or as the case may be, the central government (or a local authority) may suspend the exhibition of a film, where it is likely to cause a breach of the peace. Any order which is issued under the terms of these statutory provisions is subject to statutory control as well as to the supervisory jurisdiction of the High Courts under Article 226 or, as the case may be, the original jurisdiction of this Court under Article 32. These statutes are to be interpreted in the rule of law framework. An excess or abuse of statutory power is amenable to constitutional guarantees which protect the citizen against arbitrary state action. The danger which this case exemplifies is the peril of subjecting the freedom of speech and expression of the citizen to actions which are not contemplated by the statute and lie beyond the lawful exercise of public power. All exercises of authority in pursuance of enabling statutory provisions are amenable to statutory remedies and are subject to judicial oversight under a regime of constitutional remedies. The exercise of statutory authority is not uncontrolled in a regime based on the rule of law. But what do citizens who have a legitimate right to exhibit a film confront when they are told that a film which is duly certified and slated for release is unceremoniously pulled off the exhibiting theatres without the authority of law? Such attempts are insidious and pose a grave danger to personal liberty and to free speech and expression. They are insidious because they are not backed by the authority of law. They pose grave dangers to free speech because the citizen is left in the lurch without being informed of the causes or the basis of the action. This has the immediate effect of silencing speech and the expression of opinion. Contemporary events reveal that there is a growing intolerance: intolerance which is unaccepting of the rights of others in society to freely espouse their views and to portray them in print, in the theatre or in the celluloid media. Organised groups and interests pose a serious danger to the existence of the right to free speech and expression. If the right of the play-wright, artist, musician or actor were to be subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory. The true purpose of art, as manifest in its myriad forms, is to question and provoke. Art in an elemental sense reflects a human urge to question the assumptions on which societal values may be founded. In questioning prevailing social values and popular cultures, every art form seeks to espouse a vision. Underlying the vision of the artist is a desire to find a new meaning for existence. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticize. Satire and irony are willing allies of the quest to entertain while at the same time to lead to self-reflection. We find in the foibles of others an image of our own lives. Our experiences provide meaning to our existence. Art is as much for the mainstream as it is for the margins. The Constitution protects the ability of every individual citizen to believe as much as to communicate, to conceptualize as much as to share. Public power must be conscious of the fact that ours is a democracy simply because the Constitution recognizes the inalienable freedoms of every citizen. Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power. Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognizes the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticized. Those who disagree have a simple expedient : of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate ideas is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed. When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperiled by a cloud of opacity and arbitrary state behaviour17. As this case indicates, a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including contracts for the exhibition of the film. The wielding of extra constitutional authority is destructive of legitimate expectations. Under the constitutional scheme, restrictions can only be imposed by or under a law which is made by the State. The State of West Bengal has informed the Court that it had not taken recourse to its statutory powers either under state or union legislation. If that be so, there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the interest of the guests. We have no manner of doubt that this was a clear abuse of public power. The police are entrusted with enforcing law. In the present case, the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission18. The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing negative restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of similar misadventures. This cannot be countenanced in a free society. Freedom is not a supplicant to power19. This leads us to the issue of relief. By the orders of this Court dated 15 March 2019 and 25 March 2019 several directions were issued to the state of West Bengal, the Principal Secretary, Home and the Director General of Police. We maintain and confirm the directions which have been issued. We issue a Mandamus restraining the state from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot. The state shall specifically ensure that the properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety20. As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case. | 1 | 10,565 | 2,248 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power. Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognizes the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticized. Those who disagree have a simple expedient : of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate ideas is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed. When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperiled by a cloud of opacity and arbitrary state behaviour. 17. As this case indicates, a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including contracts for the exhibition of the film. The wielding of extra constitutional authority is destructive of legitimate expectations. Under the constitutional scheme, restrictions can only be imposed by or under a law which is made by the State. The State of West Bengal has informed the Court that it had not taken recourse to its statutory powers either under state or union legislation. If that be so, there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the interest of the guests. We have no manner of doubt that this was a clear abuse of public power. The police are entrusted with enforcing law. In the present case, the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission. 18. The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing negative restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of similar misadventures. This cannot be countenanced in a free society. Freedom is not a supplicant to power. 19. This leads us to the issue of relief. By the orders of this Court dated 15 March 2019 and 25 March 2019 several directions were issued to the state of West Bengal, the Principal Secretary, Home and the Director General of Police. We maintain and confirm the directions which have been issued. We issue a Mandamus restraining the state from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot. The state shall specifically ensure that the properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety. 20. As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case.
### Response:
1
### Explanation:
freedoms of every citizen. Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognizes are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power. Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognizes the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticized. Those who disagree have a simple expedient : of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate ideas is a legitimate area of human endeavor and is not controlled by the acceptability of the views to those to whom they are addressed. When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperiled by a cloud of opacity and arbitrary state behaviour17. As this case indicates, a producer of a film which has been certified by the CBFC needs to embark upon meticulous arrangements including contracts for the exhibition of the film. The wielding of extra constitutional authority is destructive of legitimate expectations. Under the constitutional scheme, restrictions can only be imposed by or under a law which is made by the State. The State of West Bengal has informed the Court that it had not taken recourse to its statutory powers either under state or union legislation. If that be so, there has to be some explanation forthcoming before the Court why the film was simultaneously removed from the theatres, at one stroke, shortly after release. The apprehension of the petitioners that this was an action which followed on the letter dated 11 February 2019 of the Joint Commissioner of Police is not unfounded. The letter addressed by INOX to the producer specifically mentions that they were directed by the authorities to discontinue the screening in the interest of the guests. We have no manner of doubt that this was a clear abuse of public power. The police are entrusted with enforcing law. In the present case, the West Bengal police have overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission18. The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing negative restraints on the state these freedoms impose a positive mandate as well. In its capacity as a public authority enforcing the rule of law, the state must ensure that conditions in which these freedoms flourish are maintained. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. Unless we were to read a positive obligation on the state to create and maintain conditions in which the freedoms guaranteed by the Constitution can be exercised, there is a real danger that art and literature would become victims of intolerance. In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of similar misadventures. This cannot be countenanced in a free society. Freedom is not a supplicant to power19. This leads us to the issue of relief. By the orders of this Court dated 15 March 2019 and 25 March 2019 several directions were issued to the state of West Bengal, the Principal Secretary, Home and the Director General of Police. We maintain and confirm the directions which have been issued. We issue a Mandamus restraining the state from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot. The state shall specifically ensure that the properties of the theatre owners who exhibit the film are duly protected as are the viewers against attempts on their safety20. As a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. We are clearly of the view that a remedy in public law for the grant of remedial compensation is required in the present case.
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SHRIPAL BHATI Vs. STATE OF UP | of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court. Section 41 of the U.P. Urban Planning and Development Act, 1976 is applicable to Act of 1976 by virtue of Section 12 of the said Act. 1987 Regulations having been framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, a parliamentary enactment authorizing absorption of employees of erstwhile U.P. Power Corporation in Government undertakings or other Statutory Corporations, in view of provisions of Section 80 of 1981 Regulations read with Section 41 of U.P. Urban Planning and Development Act, 1976, not only respondent no. 2 is bound by every direction issued by the State Government from time to time, the appointment of respondent no. 4 in NOIDA on deputation and his subsequent absorption under the orders of the State Government cannot be faulted with or can be held to be in violation of 1981 Regulations. The first issue stands answered accordingly. 23. Question of maintainability of challenge to appointment and subsequent absorption at the behest of appellants has also been raised by learned counsel for respondent nos. 2 & 3. It is vehemently contended that appellant lacks requisite necessary qualifications for being considered for promotion to the post of Project Engineer (Electrical) and being ineligible for promotion any challenge to appointment on the said post at their behest is not maintainable. It is pointed out that eligibility for promotion to the post of Project Engineer is Degree in Engineering with minimum 8 years of experience as Assistant Project Engineer. 24. Specific case set up by NOIDA in its counter affidavit is that appellant no. 1 was appointed as Junior Engineer in 1987 and was promoted to the post of Assistant Project Engineer on 27.08.2013. Thus he lacks necessary qualification of 8 years experience and shall be eligible for being considered for promotion in 2021. Insofar as appellant no. 2 is concerned, he was appointed on the post of Assistant Project Engineer in February, 2009. As prescribed by Service Regulations, he became eligible for being considered for promotion on completing 8 years of service in February, 2017. Thus, at the time of appointment of respondent no. 4 in 2014, and his subsequent absorption in 2015, both the appellants were not eligible for promotion to the post of Project Engineer for want of requisite 8 years experience as Assistant Project Engineer. 25. For the aforesaid facts and reasons the challenge made by the appellants to the appointment and absorption of respondent no. 4 is not tenable and they have no locus standi in the matter. It may be relevant to refer to the observations made by this Court in the case Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors. AIR 1976 SC 578 , relied upon by the High Court, holding that unless injury is suffered personally a person can not be said to be aggrieved and has no locus standi. In the light of above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a person aggrieved and has no locus standi to challenge the grant of No Objection Certificate. 26. There is yet another aspect of the matter liable to be taken into consideration, undisputedly after absorption of respondent no. 4 in the NOIDA he was relieved from his parent department and his lien with the parent department ceased. Considering a somewhat similar controversy in the case of Jamil Ahmed Vs. Industrial Development Commissioner and Principal Secretary & Ors. 2004 (13) SCC 736 , where a Senior Inspector in Railway Protection Force was initially deputed to NOIDA and subsequently absorbed, this Court after analysing the provisions of 1981 Regulations while holding the appointment on deputation and subsequent absorption in NOIDA was permissible, observed that such a employee can not be put in a position which results in his being an employee neither of the Authority nor of the parent department. It may be relevant to reproduce observations made in Paragraph 9 of the reports. On the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellants having resigned from the Railways and having been absorbed in the Authority eight years back, can not be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of his parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such deficiency which is now pleaded as a reason by the Authority. | 0[ds]13. The argument is based on an isolated reading of Regulation 16(2)(i) which is impermissible. It is well settled that a provision is required to be read in whole and not in part and in isolation to the other parts of the provision. The entire provision is required to be read out harmoniously . Regulation 16 (i) (c) clearly provides that recruitment to any post under the Authority can be made by deputation. If the provisions of Regulation 16 are to be read in a manner suggested by learned counsel for the appellant it would render Clause 16 (i) (c) totally redundant. It is well settled principle of law that any particular portion of provision cannot be read in isolation in a manner so as to render the other part of the same provision totally redundant. Similar situations exist under Clause 16 (2) (ii) and (iii) providing for appointment on post falling under Group B and C . If the provisions of Regulation 16 are read in the mode and manner suggested by the learned counsel for the appellant, the provisions of Section 16 (i) (c) would be rendered totally redundant in respect of posts falling under Group B and C as well. Regulation 16 is intended to provide the modes of recruitment and combined reading of the entire regulations makes it amply clear that an appointment to a post falling either under Group A, B and C can very well be made on deputation17. The decision to absorb respondent no. 4 was taken by the State Government exercising the powers under the U.P. Absorption Rules, 1984 framed in exercise of the powers conferred by Article 309 of the Constitution of India. Rule 5 of the U.P. Absorption Rules, 1984 provides that any Government servant may be permitted to be absorbed in the services of undertaking in which the employee is on deputation, if he applied to the Government for his absorption in the undertaking before expiry of three years from the date of commencement of his deputation or before the date on which he attains the age of 53 years whichever is earlier and the undertaking concerned also moved the Government for his absorption within such period and the Government agrees to such absorption in public interestNo doubt respondent no.4 was not a government servant and Absorption Rules are applicable only to a government servant, but the issue need not detain us for the reason that there are another set of Rules known as Uttar Pradesh Rajya Vidyut Parishad Ke Sewako Ka Sashan Evam Anya Upkarmo Me Samvilayan Viniyam 1987 (hereinafter referred to as 1987 Regulations), which is a Statutory Regulation framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, whereunder the employees of corporation can be absorbed in the service of State Government or in other undertakings of Government or corporations in the same manner as employees of the Government can be absorbed under Absorption Rules, 198421. From a perusal of aforesaid provisions, it is clear that the power of appointment of officers and employees lies with the Authority subject to such control and restrictions as may be determined by general or special orders of State Government. Learned counsel for the appellants failed to place before us any such general or special orders of the State Government whereunder the power of appointment which includes power of appointment by deputation is restricted. Contrary thereto, Regulation 16(1)(c) of 1981 Regulations gives express power to the NOIDA to make appointment on deputation which is one of source recognized under the sources of recruitment. Once the deputation as a source of recruitment is available under the Rules of Recruitment, we do not see any impediment in assuming the power of absorption of a deputationist with the Authority by necessary intendment or implication, under Act of 1976 and 1981 Regulations framed thereunderSection 41 of the U.P. Urban Planning and Development Act, 1976 is applicable to Act of 1976 by virtue of Section 12 of the said Act.1987 Regulations having been framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, a parliamentary enactment authorizing absorption of employees of erstwhile U.P. Power Corporation in Government undertakings or other Statutory Corporations, in view of provisions of Section 80 of 1981 Regulations read with Section 41 of U.P. Urban Planning and Development Act, 1976, not only respondent no. 2 is bound by every direction issued by the State Government from time to time, the appointment of respondent no. 4 in NOIDA on deputation and his subsequent absorption under the orders of the State Government cannot be faulted with or can be held to be in violation of 1981 Regulations. The first issue stands answered accordingly25. For the aforesaid facts and reasons the challenge made by the appellants to the appointment and absorption of respondent no. 4 is not tenable and they have no locus standi in the matter. It may be relevant to refer to the observations made by this Court in the case Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors. AIR 1976 SC 578 , relied upon by the High Court, holding that unless injury is suffered personally a person can not be said to be aggrieved and has no locus standi.In the light of above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a person aggrieved and has no locus standi to challenge the grant of No Objection Certificate26. There is yet another aspect of the matter liable to be taken into consideration, undisputedly after absorption of respondent no. 4 in the NOIDA he was relieved from his parent department and his lien with the parent department ceased. Considering a somewhat similar controversy in the case of Jamil Ahmed Vs. Industrial Development Commissioner and Principal Secretary & Ors. 2004 (13) SCC 736 , where a Senior Inspector in Railway Protection Force was initially deputed to NOIDA and subsequently absorbed, this Court after analysing the provisions of 1981 Regulations while holding the appointment on deputation and subsequent absorption in NOIDA was permissible, observed that such a employee can not be put in a position which results in his being an employee neither of the Authority nor of the parent department. It may be relevant to reproduce observations made in Paragraph 9 of the reportsOn the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellants having resigned from the Railways and having been absorbed in the Authority eight years back, can not be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of his parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such deficiency which is now pleaded as a reason by the Authority. | 0 | 4,063 | 1,351 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court. Section 41 of the U.P. Urban Planning and Development Act, 1976 is applicable to Act of 1976 by virtue of Section 12 of the said Act. 1987 Regulations having been framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, a parliamentary enactment authorizing absorption of employees of erstwhile U.P. Power Corporation in Government undertakings or other Statutory Corporations, in view of provisions of Section 80 of 1981 Regulations read with Section 41 of U.P. Urban Planning and Development Act, 1976, not only respondent no. 2 is bound by every direction issued by the State Government from time to time, the appointment of respondent no. 4 in NOIDA on deputation and his subsequent absorption under the orders of the State Government cannot be faulted with or can be held to be in violation of 1981 Regulations. The first issue stands answered accordingly. 23. Question of maintainability of challenge to appointment and subsequent absorption at the behest of appellants has also been raised by learned counsel for respondent nos. 2 & 3. It is vehemently contended that appellant lacks requisite necessary qualifications for being considered for promotion to the post of Project Engineer (Electrical) and being ineligible for promotion any challenge to appointment on the said post at their behest is not maintainable. It is pointed out that eligibility for promotion to the post of Project Engineer is Degree in Engineering with minimum 8 years of experience as Assistant Project Engineer. 24. Specific case set up by NOIDA in its counter affidavit is that appellant no. 1 was appointed as Junior Engineer in 1987 and was promoted to the post of Assistant Project Engineer on 27.08.2013. Thus he lacks necessary qualification of 8 years experience and shall be eligible for being considered for promotion in 2021. Insofar as appellant no. 2 is concerned, he was appointed on the post of Assistant Project Engineer in February, 2009. As prescribed by Service Regulations, he became eligible for being considered for promotion on completing 8 years of service in February, 2017. Thus, at the time of appointment of respondent no. 4 in 2014, and his subsequent absorption in 2015, both the appellants were not eligible for promotion to the post of Project Engineer for want of requisite 8 years experience as Assistant Project Engineer. 25. For the aforesaid facts and reasons the challenge made by the appellants to the appointment and absorption of respondent no. 4 is not tenable and they have no locus standi in the matter. It may be relevant to refer to the observations made by this Court in the case Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors. AIR 1976 SC 578 , relied upon by the High Court, holding that unless injury is suffered personally a person can not be said to be aggrieved and has no locus standi. In the light of above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a person aggrieved and has no locus standi to challenge the grant of No Objection Certificate. 26. There is yet another aspect of the matter liable to be taken into consideration, undisputedly after absorption of respondent no. 4 in the NOIDA he was relieved from his parent department and his lien with the parent department ceased. Considering a somewhat similar controversy in the case of Jamil Ahmed Vs. Industrial Development Commissioner and Principal Secretary & Ors. 2004 (13) SCC 736 , where a Senior Inspector in Railway Protection Force was initially deputed to NOIDA and subsequently absorbed, this Court after analysing the provisions of 1981 Regulations while holding the appointment on deputation and subsequent absorption in NOIDA was permissible, observed that such a employee can not be put in a position which results in his being an employee neither of the Authority nor of the parent department. It may be relevant to reproduce observations made in Paragraph 9 of the reports. On the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellants having resigned from the Railways and having been absorbed in the Authority eight years back, can not be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of his parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such deficiency which is now pleaded as a reason by the Authority.
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0
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to a post falling either under Group A, B and C can very well be made on deputation17. The decision to absorb respondent no. 4 was taken by the State Government exercising the powers under the U.P. Absorption Rules, 1984 framed in exercise of the powers conferred by Article 309 of the Constitution of India. Rule 5 of the U.P. Absorption Rules, 1984 provides that any Government servant may be permitted to be absorbed in the services of undertaking in which the employee is on deputation, if he applied to the Government for his absorption in the undertaking before expiry of three years from the date of commencement of his deputation or before the date on which he attains the age of 53 years whichever is earlier and the undertaking concerned also moved the Government for his absorption within such period and the Government agrees to such absorption in public interestNo doubt respondent no.4 was not a government servant and Absorption Rules are applicable only to a government servant, but the issue need not detain us for the reason that there are another set of Rules known as Uttar Pradesh Rajya Vidyut Parishad Ke Sewako Ka Sashan Evam Anya Upkarmo Me Samvilayan Viniyam 1987 (hereinafter referred to as 1987 Regulations), which is a Statutory Regulation framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, whereunder the employees of corporation can be absorbed in the service of State Government or in other undertakings of Government or corporations in the same manner as employees of the Government can be absorbed under Absorption Rules, 198421. From a perusal of aforesaid provisions, it is clear that the power of appointment of officers and employees lies with the Authority subject to such control and restrictions as may be determined by general or special orders of State Government. Learned counsel for the appellants failed to place before us any such general or special orders of the State Government whereunder the power of appointment which includes power of appointment by deputation is restricted. Contrary thereto, Regulation 16(1)(c) of 1981 Regulations gives express power to the NOIDA to make appointment on deputation which is one of source recognized under the sources of recruitment. Once the deputation as a source of recruitment is available under the Rules of Recruitment, we do not see any impediment in assuming the power of absorption of a deputationist with the Authority by necessary intendment or implication, under Act of 1976 and 1981 Regulations framed thereunderSection 41 of the U.P. Urban Planning and Development Act, 1976 is applicable to Act of 1976 by virtue of Section 12 of the said Act.1987 Regulations having been framed under the provisions of Section 79(c) of Electricity Supply Act, 1948, a parliamentary enactment authorizing absorption of employees of erstwhile U.P. Power Corporation in Government undertakings or other Statutory Corporations, in view of provisions of Section 80 of 1981 Regulations read with Section 41 of U.P. Urban Planning and Development Act, 1976, not only respondent no. 2 is bound by every direction issued by the State Government from time to time, the appointment of respondent no. 4 in NOIDA on deputation and his subsequent absorption under the orders of the State Government cannot be faulted with or can be held to be in violation of 1981 Regulations. The first issue stands answered accordingly25. For the aforesaid facts and reasons the challenge made by the appellants to the appointment and absorption of respondent no. 4 is not tenable and they have no locus standi in the matter. It may be relevant to refer to the observations made by this Court in the case Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors. AIR 1976 SC 578 , relied upon by the High Court, holding that unless injury is suffered personally a person can not be said to be aggrieved and has no locus standi.In the light of above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a person aggrieved and has no locus standi to challenge the grant of No Objection Certificate26. There is yet another aspect of the matter liable to be taken into consideration, undisputedly after absorption of respondent no. 4 in the NOIDA he was relieved from his parent department and his lien with the parent department ceased. Considering a somewhat similar controversy in the case of Jamil Ahmed Vs. Industrial Development Commissioner and Principal Secretary & Ors. 2004 (13) SCC 736 , where a Senior Inspector in Railway Protection Force was initially deputed to NOIDA and subsequently absorbed, this Court after analysing the provisions of 1981 Regulations while holding the appointment on deputation and subsequent absorption in NOIDA was permissible, observed that such a employee can not be put in a position which results in his being an employee neither of the Authority nor of the parent department. It may be relevant to reproduce observations made in Paragraph 9 of the reportsOn the facts and circumstances of this case, we need not go in depth into the question sought to be urged on behalf of the Authority, for, we are of the view that the appellants having resigned from the Railways and having been absorbed in the Authority eight years back, can not be put in a position, for no fault of his, which results in his being an employee neither of the Authority nor of his parent department. The appellant cannot be made to suffer for the discrepancy, if any, assuming there is any such deficiency which is now pleaded as a reason by the Authority.
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Bhagwan Dass Sehgal Vs. State Of Haryana And Ors. Etc. Etc | (i) in Section 2 of the Punjab State Legislature (Prevention of Disqualification) Act 7 of 1952 (hereinafter referred to as the Disqualification Act) inserted by Haryana Amendment Act 25 of 1969 suffers from the vice of discrimination and, as such, is an invalid piece of legislation? Both these appeals will therefore be disposed of by this judgment.2. The appellant and respondents, as rival candidates, contested the election to Haryana Legislative Assembly from Ambala Cantonment Constituency in March 1972. Hans Raj Suri, respondent was declared elected. The appellant Bhagwan Dass Sehgal challenged this respondents election on the ground that his nomination papers had been improperly and illegally accepted. It was alleged that on the material dates, the respondent being a Chairman of the Ambala Improvement Trust was holding an office of profit under the Government of the State, and as such was disqualified from contesting the election. It was further pleaded that cl. (i) of Section 2 of the Disqualification Act 1952 (added by the Haryana Amendment Act 25 of 1969) which purported to take the office of the Chairman of an Improvement Trust out of the purview of an office of profit was invalid as it offended Article 14 of the Constitution.3. The validity of the aforesaid cl. (i) was also challenged separately, under Article 226 of the Constitution in a writ petition on the same grounds.4. The learned single Judge before whom the writ petition first came up for hearing, got it referred to a Division Bench of the High Court, which dismissed the writ petition. In consequence, the election petition, also was dismissed. Hence these appeals.5. A few facts may now be set out:It is not disputed that at the date of filing the nomination papers and also on the date of their scrutiny, the respondent was Chairman of the Ambala Improvement Trust. He was appointed by the State Government under Sections 4 and 5 of the Improvement Act by a notification dated May 21, 1970. As a Chairman he was receiving a salary of Rs. 1,000 p.m. plus Dearness and Conveyance Allowances. It is also not disputed that the power of appointment and removal of the Chairman of the Trust vests in the State Government and his remuneration is paid out of the public revenues. In short, the office of the Chairman has all the attributes of an office of profit. But for the impugned provision, the respondent would have been disqualified from contesting the election.6. By virtue of the powers conferred by Article 191 of the Constitution, the Legislature of Haryana State enacted the Amendment Act 25 of 1969, whereby it inserted the impugned cl. (i) in the original Section 2 of the Disqualification Act. The effect of this amendment is that a person holding the office of the Chairman of an Improvement Trust constituted under the Punjab Town Improvement Act or the office of the Chairman of the State Agricultural Marketing Board constituted under Section 3 of the Punjab Agricultural Produce Markets Act, 1961, does no incur the disqualification for being; chosen as, and for being a member of the Haryana State Legislative Assembly.7. Mr. D. V. Patel, learned counsel for the appellant contends that the impugned provision is discriminatory in as much as it enables the Chairman of the Trust to contest an election to the State Assembly by removing his disqualification but does not accord the same treatment to the members of the Trust appointed under Section 4 (i) (c) the Improvement Act. It is further urged that the unreasonable classification between the members of the statutory bodies falling under clause (e), and a Chairman of the Improvement Trust falling under clause (i) of Section 2 of the Disqualification Act.8. To us, these contentions appear to be devoid of merit.9. In the case of members of the Trust appointed under Section 4 (i) (c) of the Improvement Act, the disqualification on the ground of their holding the office of profit, had already been removed by clause (e) of Section 2 of the Disqualification Act, 1952, which runs thus :"A member of any statutory body or authority, or a member of any Committee or other body, appointed or constituted by the Punjab Government, and who is not in receipt of a salary but who is paid only travelling and daily allowance during the performance of his duties."10. It is therefore not correct to say that the members of the Trust have been discriminated against in the matter of removing the disqualification.11. It is noteworthy that the status administrative responsibilities and other conditions which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairman of the Improvement Trusts have been put in clause (i) as a class separate from that of the members of the Trust and other statutory bodies in clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in Article 14 of the Constitution.12. It must be remembered that Article 191 (1) (a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or for being a member of the State Legislature. Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191 (1) (a) of its real content or disregard any constitutional guarantee or mandate, the Court will not interfere. Nothing of this kind has been done by the impugned provisions which would justify the invocation of the extraordinary powers of the Court under Article 226 of the Constitution.13. No other point has been argued before us. | 0[ds]11. It is noteworthy that the status administrative responsibilities and other conditions which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairman of the Improvement Trusts have been put in clause (i) as a class separate from that of the members of the Trust and other statutory bodies in clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in Article 14 of the Constitution.12. It must be remembered that Article 191 (1) (a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or for being a member of the State Legislature. Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191 (1) (a) of its real content or disregard any constitutional guarantee or mandate, the Court will not interfere. Nothing of this kind has been done by the impugned provisions which would justify the invocation of the extraordinary powers of the Court under Article 226 of the Constitution. | 0 | 1,134 | 272 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
(i) in Section 2 of the Punjab State Legislature (Prevention of Disqualification) Act 7 of 1952 (hereinafter referred to as the Disqualification Act) inserted by Haryana Amendment Act 25 of 1969 suffers from the vice of discrimination and, as such, is an invalid piece of legislation? Both these appeals will therefore be disposed of by this judgment.2. The appellant and respondents, as rival candidates, contested the election to Haryana Legislative Assembly from Ambala Cantonment Constituency in March 1972. Hans Raj Suri, respondent was declared elected. The appellant Bhagwan Dass Sehgal challenged this respondents election on the ground that his nomination papers had been improperly and illegally accepted. It was alleged that on the material dates, the respondent being a Chairman of the Ambala Improvement Trust was holding an office of profit under the Government of the State, and as such was disqualified from contesting the election. It was further pleaded that cl. (i) of Section 2 of the Disqualification Act 1952 (added by the Haryana Amendment Act 25 of 1969) which purported to take the office of the Chairman of an Improvement Trust out of the purview of an office of profit was invalid as it offended Article 14 of the Constitution.3. The validity of the aforesaid cl. (i) was also challenged separately, under Article 226 of the Constitution in a writ petition on the same grounds.4. The learned single Judge before whom the writ petition first came up for hearing, got it referred to a Division Bench of the High Court, which dismissed the writ petition. In consequence, the election petition, also was dismissed. Hence these appeals.5. A few facts may now be set out:It is not disputed that at the date of filing the nomination papers and also on the date of their scrutiny, the respondent was Chairman of the Ambala Improvement Trust. He was appointed by the State Government under Sections 4 and 5 of the Improvement Act by a notification dated May 21, 1970. As a Chairman he was receiving a salary of Rs. 1,000 p.m. plus Dearness and Conveyance Allowances. It is also not disputed that the power of appointment and removal of the Chairman of the Trust vests in the State Government and his remuneration is paid out of the public revenues. In short, the office of the Chairman has all the attributes of an office of profit. But for the impugned provision, the respondent would have been disqualified from contesting the election.6. By virtue of the powers conferred by Article 191 of the Constitution, the Legislature of Haryana State enacted the Amendment Act 25 of 1969, whereby it inserted the impugned cl. (i) in the original Section 2 of the Disqualification Act. The effect of this amendment is that a person holding the office of the Chairman of an Improvement Trust constituted under the Punjab Town Improvement Act or the office of the Chairman of the State Agricultural Marketing Board constituted under Section 3 of the Punjab Agricultural Produce Markets Act, 1961, does no incur the disqualification for being; chosen as, and for being a member of the Haryana State Legislative Assembly.7. Mr. D. V. Patel, learned counsel for the appellant contends that the impugned provision is discriminatory in as much as it enables the Chairman of the Trust to contest an election to the State Assembly by removing his disqualification but does not accord the same treatment to the members of the Trust appointed under Section 4 (i) (c) the Improvement Act. It is further urged that the unreasonable classification between the members of the statutory bodies falling under clause (e), and a Chairman of the Improvement Trust falling under clause (i) of Section 2 of the Disqualification Act.8. To us, these contentions appear to be devoid of merit.9. In the case of members of the Trust appointed under Section 4 (i) (c) of the Improvement Act, the disqualification on the ground of their holding the office of profit, had already been removed by clause (e) of Section 2 of the Disqualification Act, 1952, which runs thus :"A member of any statutory body or authority, or a member of any Committee or other body, appointed or constituted by the Punjab Government, and who is not in receipt of a salary but who is paid only travelling and daily allowance during the performance of his duties."10. It is therefore not correct to say that the members of the Trust have been discriminated against in the matter of removing the disqualification.11. It is noteworthy that the status administrative responsibilities and other conditions which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairman of the Improvement Trusts have been put in clause (i) as a class separate from that of the members of the Trust and other statutory bodies in clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in Article 14 of the Constitution.12. It must be remembered that Article 191 (1) (a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or for being a member of the State Legislature. Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191 (1) (a) of its real content or disregard any constitutional guarantee or mandate, the Court will not interfere. Nothing of this kind has been done by the impugned provisions which would justify the invocation of the extraordinary powers of the Court under Article 226 of the Constitution.13. No other point has been argued before us.
### Response:
0
### Explanation:
11. It is noteworthy that the status administrative responsibilities and other conditions which go with the office of the Chairman of the Improvement Trust are not the same as those of the members of the Trust or other statutory bodies. The mere fact therefore, that for the purpose of removing the disqualification, the Chairman of the Improvement Trusts have been put in clause (i) as a class separate from that of the members of the Trust and other statutory bodies in clause (e) of Section 2 does not offend the guarantee of equal treatment enshrined in Article 14 of the Constitution.12. It must be remembered that Article 191 (1) (a) of the Constitution gives a wide power to the State Legislature to declare by law what office or offices of profit held under the Government shall not disqualify the holder thereof from being chosen or for being a member of the State Legislature. Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191 (1) (a) of its real content or disregard any constitutional guarantee or mandate, the Court will not interfere. Nothing of this kind has been done by the impugned provisions which would justify the invocation of the extraordinary powers of the Court under Article 226 of the Constitution.
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Dilip Kumar Gon Vs. Durga Prasad Singh | Sarkaria, J.1. Durga Prasad Singh, respondent herein; Khatir Ali and Abdul Hamid, filed their nomination papers before the Returning Officer for contesting the election to the Bihar Legislative Assembly from 147- Jamtara Assembly Constituency (General). The date for scrutiny of the nomination papers was February 9, 1972. The Returning Officer rejected the nomination papers of Khatir Ali and Abdul Hamid ignoring the objections that were raised on their behalf. Durga Prasad Singh was declared duly elected.2. The appellant, an elector of the Constituency, filed an Election Petition challenging the election of Durga Prasad Singh inter alia on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected. A learned single Judge of the High Court, who tried the petition, decided that issue against the petitioner, and in consequence, dismissed the petition. Hence this appeal.3. Before us, Mr. R. K. Garg, learned counsel for the appellant has confined his arguments to the rejection of the nomination paper of Abdul Hamid, only. It is submitted that the defect on the basis of which the Returning Officer, rejected Abdul Hamids nomination papers, was not a defect in the eye of law. At any rate, proceeds the argument, it was not a defect of a substantial character which could justify rejection of the nomination papers.4. There is merit in this contention.5. What happened was that in the column of the printed nomination form, meant for making a declaration of the candidates of the Scheduled Caste/Tribe contesting for a Reserved Seat, Abdul Hamid had not (a) filled his specific caste in the blank meant for that purpose and further (b) he had in that column, left the words "Scheduled Caste unscored. The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words Scheduled Caste means that "he belongs to Scheduled Caste which is not true" and consequently, "the nomination papers are not filled up properly".6. The learned Judge of the High Court upheld this rejection, holding that "the candidates filling of these entries were on the face of it, not proper and did not comply with the requirements of law on this subject" and further that this defect was not "trivial or technical" but of a substantial character.7. In our opinion, in the circumstances of the case, the rejection of the nomination papers of Abdul Hamid was manifestly erroneous. The High Courts view that in scoring out only the word Jan-Jati (tribe) and leaving the word Jati (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" was entirely misconceived. It overlooked the fact that the Jamtara Constituency was a General Constituency, and the seat for which the candidates wanted to contest the election was not a Reserved seat. Section 33 (2) of the Representation of the People Act, 1951, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe. Further, the Returning Officer appearing as R. W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs. 250/- as security. The omission to strike off the column in the printed nomination form relating to Scheduled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers. In Amolak Chand v. Raghuveer Singh (1968) 3 SCR 246 = (AIR 1968 SC 1203 ) the nomination papers of two candidates contesting for a General Constituency were rejected on a similar ground. Holding that the rejection was improper, Ramaswami J. speaking for the Court stated the law on the point thus :"The printed form 2-A is meant both for General and Reserved Constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe there is no such rule with regard to General Constituency. Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column, but there is no such direction in the statute with regard to the General Constituency. In our opinion, the mention of the caste of the candidate is the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a General Constituency".8. In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly rejected by the Returning Officer. | 1[ds]7. In our opinion, in the circumstances of the case, the rejection of the nomination papers of Abdul Hamid was manifestly erroneous. The High Courts view that in scoring out only the word Jan-Jati (tribe) and leaving the word Jati (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" was entirely misconceived. It overlooked the fact that the Jamtara Constituency was a General Constituency, and the seat for which the candidates wanted to contest the election was not a Reserved seat. Section 33 (2) of the Representation of the People Act, 1951, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe. Further, the Returning Officer appearing as R. W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs. 250/- as security. The omission to strike off the column in the printed nomination form relating to Scheduled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers.In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly rejected by the Returning Officer. | 1 | 928 | 300 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
Sarkaria, J.1. Durga Prasad Singh, respondent herein; Khatir Ali and Abdul Hamid, filed their nomination papers before the Returning Officer for contesting the election to the Bihar Legislative Assembly from 147- Jamtara Assembly Constituency (General). The date for scrutiny of the nomination papers was February 9, 1972. The Returning Officer rejected the nomination papers of Khatir Ali and Abdul Hamid ignoring the objections that were raised on their behalf. Durga Prasad Singh was declared duly elected.2. The appellant, an elector of the Constituency, filed an Election Petition challenging the election of Durga Prasad Singh inter alia on the ground that the nomination papers of Abdul Hamid and Khatir Ali had been improperly rejected. A learned single Judge of the High Court, who tried the petition, decided that issue against the petitioner, and in consequence, dismissed the petition. Hence this appeal.3. Before us, Mr. R. K. Garg, learned counsel for the appellant has confined his arguments to the rejection of the nomination paper of Abdul Hamid, only. It is submitted that the defect on the basis of which the Returning Officer, rejected Abdul Hamids nomination papers, was not a defect in the eye of law. At any rate, proceeds the argument, it was not a defect of a substantial character which could justify rejection of the nomination papers.4. There is merit in this contention.5. What happened was that in the column of the printed nomination form, meant for making a declaration of the candidates of the Scheduled Caste/Tribe contesting for a Reserved Seat, Abdul Hamid had not (a) filled his specific caste in the blank meant for that purpose and further (b) he had in that column, left the words "Scheduled Caste unscored. The Returning Officer rejected the nomination papers on the ground that the failure of the candidate to delete the words Scheduled Caste means that "he belongs to Scheduled Caste which is not true" and consequently, "the nomination papers are not filled up properly".6. The learned Judge of the High Court upheld this rejection, holding that "the candidates filling of these entries were on the face of it, not proper and did not comply with the requirements of law on this subject" and further that this defect was not "trivial or technical" but of a substantial character.7. In our opinion, in the circumstances of the case, the rejection of the nomination papers of Abdul Hamid was manifestly erroneous. The High Courts view that in scoring out only the word Jan-Jati (tribe) and leaving the word Jati (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" was entirely misconceived. It overlooked the fact that the Jamtara Constituency was a General Constituency, and the seat for which the candidates wanted to contest the election was not a Reserved seat. Section 33 (2) of the Representation of the People Act, 1951, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe. Further, the Returning Officer appearing as R. W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs. 250/- as security. The omission to strike off the column in the printed nomination form relating to Scheduled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers. In Amolak Chand v. Raghuveer Singh (1968) 3 SCR 246 = (AIR 1968 SC 1203 ) the nomination papers of two candidates contesting for a General Constituency were rejected on a similar ground. Holding that the rejection was improper, Ramaswami J. speaking for the Court stated the law on the point thus :"The printed form 2-A is meant both for General and Reserved Constituencies but while it is obligatory for candidates in the reserved constituency to make a declaration in the proper column that he is a member of a particular caste or tribe there is no such rule with regard to General Constituency. Section 33 (2) of the Act imposes an obligation on the candidate in the reserved constituency to make a declaration in the proper column, but there is no such direction in the statute with regard to the General Constituency. In our opinion, the mention of the caste of the candidate is the nomination form was a clear superfluity because it was not necessary for the candidate to fill in the column when he was contesting in a General Constituency".8. In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly rejected by the Returning Officer.
### Response:
1
### Explanation:
7. In our opinion, in the circumstances of the case, the rejection of the nomination papers of Abdul Hamid was manifestly erroneous. The High Courts view that in scoring out only the word Jan-Jati (tribe) and leaving the word Jati (caste) untouched in the aforesaid column of the nomination form, Abdul Hamid had failed "to comply with the requirement of the law on the subject" was entirely misconceived. It overlooked the fact that the Jamtara Constituency was a General Constituency, and the seat for which the candidates wanted to contest the election was not a Reserved seat. Section 33 (2) of the Representation of the People Act, 1951, or any other statutory provision does not enjoin upon a candidate who is contesting the election for a General Seat, and not for a Reserved Seat, to specify in his declaration his caste or tribe. Further, the Returning Officer appearing as R. W. 2, had clearly admitted that at the time of the scrutiny of the nomination papers, he was aware that Abdul Hamid was not a member of the Scheduled Caste and that he had deposited Rs. 250/- as security. The omission to strike off the column in the printed nomination form relating to Scheduled Caste/Tribe did not amount to a defect in the eye of law, much less was it a defect of a substantial character, warranting rejection of the nomination papers.In the light of what has been said above, we would, reverse the finding of the High Court and hold that the nomination papers of Abdul Hamid were improperly rejected by the Returning Officer.
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Sukhvinder Pal Bipan Kumar Vs. State Of Punjab & Ors | suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the li cence. The substantive provision contained in sub-cl. (1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the terms and conditions of his licence or any provision of this order. The first proviso is in the nature of a limitation on the power contained in sub-cl. (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The p roper function of the second proviso is to carve out an exception to the first proviso. It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in conte mplation of the proceedings for cancellation. It must, however, be read along with the main enacting provision in sub-cl. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contr avention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessa rily depend upon the nature of the breach, and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly , as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to t he Director, Food and Supplies, under cl. 13 of the Order. This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. It would, therefore, appear that the second proviso to sub-cl. (1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a l icence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Art. 14 of the Constitution. On the contrary, as already indic ated, it affords reasonable safeguards.There still remains the question whether the impugned orders of suspension are mala fide or motivated. We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners. All that is averred in para 9 is:"(Under oral instructions of the Punjab Government from the Civil Supplies and Food Department to all the Licensing Authorities, including the Food Department and Supplies Controllers, instructions were issued that if any one dealer is found exporting wheat to another State, there being no direct or indire ct ban on such movement, he should be punished at the spot by way of suspension of licences so that the dealer may not export wheat to any other State for which there are no restrictions imposed by any law or notified order or even the terms and conditions of the licence." The petitioners then go on to say in para 12:"Under oral instructions from the Secretary, Food and Supplies Department, the Director Food and Civil Supplies, and up to the District Food and supplies Controller, the Punjab Government has imposed restriction on inter-State movement of foodgrains. There are already restrictions on stock holding and dealer to dealer sale. The petitioners have never violated any conditions of the licence except that they have been, in exercise of their fundamental rights, exporting foodgrains to various destination outside the State of Punjab..." 8. In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are correct to the best of my knowledge. To say the least, this is no affidavit at all. Under order XIX, Rule 3, of the Code of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity. The allegations in the petition are, therefore, not supported by an affidavit as required by law. That being so, the State Government was fully justified in answer, Denied. There is no restriction on the movement of wheat. The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government. In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugn ed orders of suspension. The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition. The burden of establi shing mala fides lies very heavily on the person who alleges it. The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers. The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners. The question whether or not, they committed the breaches is a matter for inquiry by the licensing authorities under sub-cl. (1) of cl. 11 of the Order. | 0[ds]We are unable to accept any of these contentions.To make the point intelligible, it is necessary t o deal with the scheme of the Order. Cl. 3 of the Order provides that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted by the licensing authority. Cl. 7 (3) there of provides that where an application for grant of a licence is not refused, the licensing authority shall grant a licence in Form B subject to the conditions specified therein. Condition No. 4 of the licence enjoins that the licensee shall s ubmit to the licensing authority concerned fortnightly returns in Form C of the stock receipts and deliveries. Condition No. 8 of the licence lays down that the licensee shall exhibit the price list of foodgrains held by him for sale and it shall indicate separately the prices of different varieties of foodgrains. Condition No. 10 thereof interdicts that the licensee shall give all facilities at all reasonable times to the licensing authority or any officer authorised by it or the State Government, for the inspection of his stocks and accounts at any shop, godown or other place used by him for the storage, sale or purchase of foodgrains etc. Cl. 11 of the Order provides for cancellation or suspension of a licen ce. The power of cancellation or suspension of a licence which was subject to the giving of a reasonable opportunity to the lincensee of stating his case was not adequate and sufficient to effectively check and control flagrant brea ches of the provisions of the order, during the pendency of the proceedings for cancellation of a licence. The State Government, therefore, inserted the second proviso to subcl. (1) of cl. 11 of the Order. Cl. 11 of the Order, as amended, in so f ar as material, reads:6. It is plain upon the terms of. (1) of cl. 11 of the order that it deals with the substantive punishment of cancellation or suspension of a licence. The power of cancellation or suspension of a licence of a foodgrains deal er under. (1) of cl. 11 of the Order is, however, subject to the limitation contained in the first proviso. The power of cancellation or suspension of a licence is, therefore, not exercisable by the licensing authority until it affords a re asonable opportunity to the licensee of stating his case. This necessarily entails the holding of an inquiry into the question of the alleged breach. The making of an inquiry into the breach of licence conditions by a foodgrains dealer is a timeconsuming process which may many a time verily frustrate the purpose and object of the Order. The State Government was evidently of the opinion in the light of the experience gained in the recent past, that for effective control and regulation of the trade in foodgrains, it was necessary and expedient that the licensing authority should be clothed with powers to suspend a licence on the spot when it detects contravention of any of the terms and conditions of the licence or any of the provision s of the Order. Otherwise, a foodgrains dealer after committing flagrant breaches of the terms and conditions of his licence and the provisions of the Order, may, with impunity, carry on his trading activities without any check or control.The power of suspension conferred by the second proviso to. (1) of cl. 11 of the Order is by way of an interim measure, pending the holding of an inquiry as to whether there is any breach which must result in cancellation of the licence. It is true that the suspension of licence is a drastic measure, if taken without affording to the dealer a reasonable opportunity of stating his case, but it is a measure of social control in the interests of the community. The p ower of suspension is a necessary concomitant of the power to grant a privilege or a licence. By reason of cl. 3 of the Order, no dealer can engage in the business of purchase and sale of foodgrains except under and in accordance with the terms and conditions of a licence issued by the licensing authority in that behalf. The dealers are free to carry on their trade or business in foodgrains, subject to their complying with the terms and conditions of their licence and the provisi ons of the Order. But, if they commit a breach, they must face the consequence that their licence may be cancelled or suspended under subcl. (1) of cl. 11 of the Order. They must face the further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for cancellation of the licence, if the breach is of such a nature that it must result in the cancellation of a licence. As already stated, the power of suspension is a necessary adjunc t of the power to grant a licence. In view of the acute shortage of foodstuffs in the country, the Government is bound to take all effective steps to implement the provisions of the Act and the various orders issued under s. 3 thereof, from t ime to time. The conferral of the power of suspension of the licence of a foodgrains dealer under the second proviso to. (1) of cl. 11 of the Order during the pendency or in contemplation of the proceedings for cancellation of his licence, is an important step taken by the Government to subserve the object of the legislation and is in public interest. It cannot be said that the second proviso to. (1) of cl. 11 of the Order does not satisfy the test of reasonableness. It seeks to strike a proper balance between the freedom of trade or business guaranteed under Art. 19 (1) (g) and the social control permitted by cl. (6) of Art. 19 of the Constitution. It is, therefore, difficult to hold that the second proviso t o subcl. (1) of cl. 11 of the Order is of an excessive nature beyond what is required in the interests of the general public.There is no warrant for the submission that the second proviso to. (1) of cl. 11 of the Order confers up on the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence and is, therefore, void by reason of Art. 14 of the Constitution. It is urged that the impugned orders of suspension in these cases are for a pe riod of 89 days, and the licensing authority would, as in the past, pass fresh orders of suspension ad infinitum completely paralysing the business of the petitioners. There is no substance in the contention that repeated orders of suspension of a l icence can be passed under the second proviso in respect of the same breach. The second proviso expressly states that the licensing authority may suspend a licence for a period not exceeding ninety days. It, therefore, fixes the period of suspension. From its very terms, it is obvious that there cannot be repeated orders of suspension of a licence under the second provision in respect of the same breach. Normally, the order of suspension under the second proviso to subcl. (1) of cl. 11 of the Order after the expiry of the period of 90 days, would automatically lapse. However, if the licensee commits another breach, after the expiry of the period of suspension, there is nothing to prevent the lic ensing authority to suspend his licence afresh7. On a fair reading of the second proviso to. (1) of cl. 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and Supplies Controller, who is the licensing authority, the power of suspension of a licence. It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstance or grounds on which the power may be exercised. Such guidelines are expressly and specifically stated. In the first place, the power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the li cence. The substantive provision contained in. (1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the terms and conditions of his licence or any provision of this order. The first proviso is in the nature of a limitation on the power contained in. (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The p roper function of the second proviso is to carve out an exception to the first proviso. It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in conte mplation of the proceedings for cancellation. It must, however, be read along with the main enacting provision in. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contr avention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessa rily depend upon the nature of the breach, and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly , as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to t he Director, Food and Supplies, under cl. 13 of the Order. This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. It would, therefore, appear that the second proviso to. (1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a l icence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Art. 14 of the Constitution. On the contrary, as already indic ated, it affords reasonable safeguards.There still remains the question whether the impugned orders of suspension are mala fide or motivated. We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners8. In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are correct to the best of my knowledge. To say the least, this is no affidavit at all. Under order XIX, Rule 3, of theCode of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity. The allegations in the petition are, therefore, not supported by an affidavit as required by law. That being so, the State Government was fully justified in answer, Denied. There is no restriction on the movement of wheat. The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government. In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugn ed orders of suspension. The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition. The burden of establi shing mala fides lies very heavily on the person who alleges it. The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers. The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners. The question whether or not, they committed the breaches is a matter for inquiry by the licensing authorities under. (1) of cl. 11 of the Order. | 0 | 3,616 | 2,400 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the li cence. The substantive provision contained in sub-cl. (1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the terms and conditions of his licence or any provision of this order. The first proviso is in the nature of a limitation on the power contained in sub-cl. (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The p roper function of the second proviso is to carve out an exception to the first proviso. It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in conte mplation of the proceedings for cancellation. It must, however, be read along with the main enacting provision in sub-cl. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contr avention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessa rily depend upon the nature of the breach, and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly , as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to t he Director, Food and Supplies, under cl. 13 of the Order. This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. It would, therefore, appear that the second proviso to sub-cl. (1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a l icence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Art. 14 of the Constitution. On the contrary, as already indic ated, it affords reasonable safeguards.There still remains the question whether the impugned orders of suspension are mala fide or motivated. We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners. All that is averred in para 9 is:"(Under oral instructions of the Punjab Government from the Civil Supplies and Food Department to all the Licensing Authorities, including the Food Department and Supplies Controllers, instructions were issued that if any one dealer is found exporting wheat to another State, there being no direct or indire ct ban on such movement, he should be punished at the spot by way of suspension of licences so that the dealer may not export wheat to any other State for which there are no restrictions imposed by any law or notified order or even the terms and conditions of the licence." The petitioners then go on to say in para 12:"Under oral instructions from the Secretary, Food and Supplies Department, the Director Food and Civil Supplies, and up to the District Food and supplies Controller, the Punjab Government has imposed restriction on inter-State movement of foodgrains. There are already restrictions on stock holding and dealer to dealer sale. The petitioners have never violated any conditions of the licence except that they have been, in exercise of their fundamental rights, exporting foodgrains to various destination outside the State of Punjab..." 8. In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are correct to the best of my knowledge. To say the least, this is no affidavit at all. Under order XIX, Rule 3, of the Code of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity. The allegations in the petition are, therefore, not supported by an affidavit as required by law. That being so, the State Government was fully justified in answer, Denied. There is no restriction on the movement of wheat. The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government. In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugn ed orders of suspension. The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition. The burden of establi shing mala fides lies very heavily on the person who alleges it. The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers. The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners. The question whether or not, they committed the breaches is a matter for inquiry by the licensing authorities under sub-cl. (1) of cl. 11 of the Order.
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licensing authority may suspend a licence for a period not exceeding ninety days. It, therefore, fixes the period of suspension. From its very terms, it is obvious that there cannot be repeated orders of suspension of a licence under the second provision in respect of the same breach. Normally, the order of suspension under the second proviso to subcl. (1) of cl. 11 of the Order after the expiry of the period of 90 days, would automatically lapse. However, if the licensee commits another breach, after the expiry of the period of suspension, there is nothing to prevent the lic ensing authority to suspend his licence afresh7. On a fair reading of the second proviso to. (1) of cl. 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and Supplies Controller, who is the licensing authority, the power of suspension of a licence. It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstance or grounds on which the power may be exercised. Such guidelines are expressly and specifically stated. In the first place, the power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the li cence. The substantive provision contained in. (1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the terms and conditions of his licence or any provision of this order. The first proviso is in the nature of a limitation on the power contained in. (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The p roper function of the second proviso is to carve out an exception to the first proviso. It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in conte mplation of the proceedings for cancellation. It must, however, be read along with the main enacting provision in. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contr avention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessa rily depend upon the nature of the breach, and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly , as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to t he Director, Food and Supplies, under cl. 13 of the Order. This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. It would, therefore, appear that the second proviso to. (1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a l icence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Art. 14 of the Constitution. On the contrary, as already indic ated, it affords reasonable safeguards.There still remains the question whether the impugned orders of suspension are mala fide or motivated. We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners8. In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are correct to the best of my knowledge. To say the least, this is no affidavit at all. Under order XIX, Rule 3, of theCode of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity. The allegations in the petition are, therefore, not supported by an affidavit as required by law. That being so, the State Government was fully justified in answer, Denied. There is no restriction on the movement of wheat. The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government. In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugn ed orders of suspension. The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition. The burden of establi shing mala fides lies very heavily on the person who alleges it. The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers. The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners. The question whether or not, they committed the breaches is a matter for inquiry by the licensing authorities under. (1) of cl. 11 of the Order.
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Rajaanand Brahma Shah Vs. State Of Uttar Pradesh & Ors | I have power to file a suit in the Civil Court to realise the amount from Mr. Burke aforesaid. Mr. Burke aforesaid has not the right to transfer the same. He should remain in possession thereon as long as he wishes to an payment of fixed amount of Jama."27. There are also subordinate leases produced on behalf of the appellant to show that the right to minerals was always enjoyed by the appellant and not by the lessees: for instance, Annexure A-5 at p. 125 of the Paper Book is a deed of agreement executed by Abtal Deo on September 4, 1852. Paragraph 4 of this agreement states :"4. In this village, no Sayer item is produced; but whatever little or more fish, mangoes and Mauah are available we the occupants of the village enjoy and shall continue to enjoy the same. If something viz., iron ore, copper or treasure trove are discovered in this Mahal, the Raja Saheb shall be entitled to it. No other person should plant a new grove without the written permission of the Raja. If any one does so he shall be liable to pay Rs. 10 per bigha and shall continue to pay annual Phota as heretofore.".28. There are similar clauses in the agreements - Annexures A-1 to A-4 and A-6 to A-13. Reference was also made on behalf of the appellant to the letter of Mr. Thornton, dated October 5, 1850 to the Secretary to the Suddar Board of Revenue, Annexure F wherein he states that "In the settled portion of the Mirzapur district, the Government lays no claim to the soil which includes any mineral products that may be discovered". There is also a letter-Annexure G, dated August 21, 1850 from Mr. Roberts, Deputy Collector, Mirzapur to the Commissioner of Baneras Division. In this letter, Mr. Roberts expressed the view that the right to minerals was vested in the proprietary owner of the soil and that the sovereign was only entitled to a portion of the revenue thereon and that "in Bengal, the proprietors of estates lease or assign the right of mining without any interference on the part of the Government".29. It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must be overruled.30. On behalf of the respondents, reference was made to the Mirzapur Stone Mahal Act (U. P. Act V of 1886) and it was pointed out that under S. 5 of that Act "no proprietor was entitled to place any prohibition or restriction, or to demand or receive any sum by way of rent, premium, duty or price, in respect of the opening quarry, or the quarrying of stone, in the land, or in respect of the storing of stone at the quarry or the transport of stone over the land". But there is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.31. For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.32. We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.33. In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661 ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.34. | 1[ds]In our opinion, the argument put forward on behalf of the appellant cannot be accepted. It is manifest that the declaration made by the State Government in the notification under S. 6 (1) of the Act, that the land was required for a public purpose, is made conclusive by sub-s. (3) of S. 6 and it is, therefore. not open to a Court to go behind it and try to satisfy itself whether in fact the acquisition was for a publicour opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct and in view of the facts mentioned in the affidavits and in the Inspection Note of the Collector, dated December 15, 1961 we are of the opinion that the land sought to be acquired is not waste land or arable land within the meaning of S. 17 (1) or (4) of the Act. According to the Oxford Dictionary arable land is "land which is capable of being ploughed or fit for village".In the context of S. 17 (l) of the Act the expression must be construed to mean "lands which are mainly used for ploughing and for raising crops" and, therefore, the land acquired in this case is not arableexpression "waste land" as contrasted to "arable land" would, therefore, mean land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon". It follows, therefore, that S. 17 (1) of the Act is not attracted to the present case and the State Government had, therefore no authority to give a direction to the Collector to take possession of the lands under S. 17 (1) of the Act. In our opinion, the, condition imposed by Section 17 (1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the character of the land the State Government cannot give itself Jurisdiction to give a direction to the Collector to take possession of the land under S. 17 (1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High Court is entitled, in a proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct. SeeR. v. Shoreditch Assessment Committee, (1910) 2 KB859 and White and CollinsWe are accordingly of the opinion that the direction of the State Government under S. 17 (1) and the action of the Collector in taking possession of the land under that sub-section is ultra vires.We accordingly hold that the appellant has made good his submission on this aspect of the Case and the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires and, therefore all the proceedings taken by the Land Acquisition Officer subsequent to the issue of the notification under S.6 must be held to be illegal and without jurisdiction.In our opinion, a reading of the two Sanads supports the case of the appellant that there is no reservation of mineral rights in favour of the Government. The expression used in the Sanad of 1803 A. D. is "You ought to consider him the Raja of immovable Jagir and of Mahal and everything appertaining thereto belongs to him".In effect, the grant to the Raja in the two Sanads is a grant of the lands comprised in the Mahal of Agori and everything appertaining thereto and as a matter of construction the grant must be taken to be not only of the land but also of everything beneath or within the land. Prima facie the owner of a surface of the land is entitled ex jure to everything beneath the land and in the absence of any reservation in the grant minerals necessarily pass with the rights to the surface (Halsburys Laws of England, 3rd Edn., Vol. 26. p. 325). In other words, a transfer of the right to the surface conveys right to the minerals underneath unless there is an express or implied reservation in the grant. A contract, therefore, to sell or grant a lease of land will generally include mines, quarries and minerals beneath or within it: Mitchellv. Mosley, 1914-1 Ch 438is manifest that when the Sanad was executed in favour of the Raja the Government made over the land with all its capabilities to the Raja and merely imposed on him a fixed sum of revenue in lieu of all the rights the Government had as a proprietor of the soil. When neither of the parties knew undiscovered minerals underneath the land and the idea of reservation never entered their minds it cannot be held that there was any implied reservation in the grant. Nor can afterwards a distinction be drawn between the various rights that may exist on the land for the purpose of qualifying the original grant and importing into it what neither party could have imagined. It was argued on behalf of the respondents that the assessment was made on the agricultural income, but this circumstance cannot derogate from the rights conveyed to the Raja in the two Sanads because no restriction was placed on the use of the land and the use by the Raja was not limited toand amendments the Rules for the Decennial Settlement of the public revenue payable from the lands of the zamindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and Orissa. Section IV of this Regulation provided that the settlement, under certain restrictions and exceptions specified in the Regulation, shall he concluded with the actual proprietors of the soil of whatever denomination, whether zamindars, talukdars or chaudhris. It is clear that the zamindars with whom settlement took place, were recognised as the actual proprietors of the soil. The settlement of revenue so made was made permanent by S. IV of Regulation I of 1793. This Regulation enacted certain Articles of a Proclamation, dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation were enacted into a Regulation and that those articles related to the limitation of public demand upon the lands, addressed by the Governor-General in Council to the zamindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provinces of Bengal, Bihar and Orissa. By Section IV it was declared to the zamindars, independent talukdars and other actual proprietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the expiration of the term of settlement no alteration would be made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.It appears that Pargana Agori was permanently settled under the provisions of the Benaras Regulation I of 1795 and there was no material difference between the permanent settlement of Benares Province and that of the Provinces of Bengal, Bihar and Orissa.It is thus clear from the above Regulations that the zamindars, the proprietors of estates, were recognized to be the "proprietors of the soil"; and the permanent settlement of the zamindaris proceeded upon that basis.It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must bethere is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661 ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected. | 1 | 8,585 | 1,936 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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I have power to file a suit in the Civil Court to realise the amount from Mr. Burke aforesaid. Mr. Burke aforesaid has not the right to transfer the same. He should remain in possession thereon as long as he wishes to an payment of fixed amount of Jama."27. There are also subordinate leases produced on behalf of the appellant to show that the right to minerals was always enjoyed by the appellant and not by the lessees: for instance, Annexure A-5 at p. 125 of the Paper Book is a deed of agreement executed by Abtal Deo on September 4, 1852. Paragraph 4 of this agreement states :"4. In this village, no Sayer item is produced; but whatever little or more fish, mangoes and Mauah are available we the occupants of the village enjoy and shall continue to enjoy the same. If something viz., iron ore, copper or treasure trove are discovered in this Mahal, the Raja Saheb shall be entitled to it. No other person should plant a new grove without the written permission of the Raja. If any one does so he shall be liable to pay Rs. 10 per bigha and shall continue to pay annual Phota as heretofore.".28. There are similar clauses in the agreements - Annexures A-1 to A-4 and A-6 to A-13. Reference was also made on behalf of the appellant to the letter of Mr. Thornton, dated October 5, 1850 to the Secretary to the Suddar Board of Revenue, Annexure F wherein he states that "In the settled portion of the Mirzapur district, the Government lays no claim to the soil which includes any mineral products that may be discovered". There is also a letter-Annexure G, dated August 21, 1850 from Mr. Roberts, Deputy Collector, Mirzapur to the Commissioner of Baneras Division. In this letter, Mr. Roberts expressed the view that the right to minerals was vested in the proprietary owner of the soil and that the sovereign was only entitled to a portion of the revenue thereon and that "in Bengal, the proprietors of estates lease or assign the right of mining without any interference on the part of the Government".29. It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must be overruled.30. On behalf of the respondents, reference was made to the Mirzapur Stone Mahal Act (U. P. Act V of 1886) and it was pointed out that under S. 5 of that Act "no proprietor was entitled to place any prohibition or restriction, or to demand or receive any sum by way of rent, premium, duty or price, in respect of the opening quarry, or the quarrying of stone, in the land, or in respect of the storing of stone at the quarry or the transport of stone over the land". But there is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.31. For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.32. We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.33. In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661 ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.34.
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a proprietor of the soil. When neither of the parties knew undiscovered minerals underneath the land and the idea of reservation never entered their minds it cannot be held that there was any implied reservation in the grant. Nor can afterwards a distinction be drawn between the various rights that may exist on the land for the purpose of qualifying the original grant and importing into it what neither party could have imagined. It was argued on behalf of the respondents that the assessment was made on the agricultural income, but this circumstance cannot derogate from the rights conveyed to the Raja in the two Sanads because no restriction was placed on the use of the land and the use by the Raja was not limited toand amendments the Rules for the Decennial Settlement of the public revenue payable from the lands of the zamindars, independent talukdars, and other actual proprietors of land in Bengal, Bihar and Orissa. Section IV of this Regulation provided that the settlement, under certain restrictions and exceptions specified in the Regulation, shall he concluded with the actual proprietors of the soil of whatever denomination, whether zamindars, talukdars or chaudhris. It is clear that the zamindars with whom settlement took place, were recognised as the actual proprietors of the soil. The settlement of revenue so made was made permanent by S. IV of Regulation I of 1793. This Regulation enacted certain Articles of a Proclamation, dated March 22, 1793. Section I of this Regulation states that the various articles of the Proclamation were enacted into a Regulation and that those articles related to the limitation of public demand upon the lands, addressed by the Governor-General in Council to the zamindars, independent talukdars and other actual proprietors of land paying revenue to Government in the Provinces of Bengal, Bihar and Orissa. By Section IV it was declared to the zamindars, independent talukdars and other actual proprietors of land, with or on behalf of whom a settlement had been concluded under the Regulations mentioned earlier, that at the expiration of the term of settlement no alteration would be made in the assessment which they had respectively engaged to pay, but that they and their heirs and lawful successors would be allowed to hold their estates at such assessment for ever.It appears that Pargana Agori was permanently settled under the provisions of the Benaras Regulation I of 1795 and there was no material difference between the permanent settlement of Benares Province and that of the Provinces of Bengal, Bihar and Orissa.It is thus clear from the above Regulations that the zamindars, the proprietors of estates, were recognized to be the "proprietors of the soil"; and the permanent settlement of the zamindaris proceeded upon that basis.It is manifest that the view that we have expressed as to the interpretation of the two Sanads, dated October 9, 1781-Annexure A-and December 10, 1803-Annexure B -is supported by the subsequent events, proceedings and conduct of the parties over a long period of time. We are, therefore, of the opinion that the appellant is the owner of all minerals and sub-soil rights of Pargana Agori and the view taken by the High Court on this aspect of the case must bethere is noting in this statue which takes away the right of the zamindar to the minerals. It appears from the perusal of the Act and the Rules framed thereunder that the Mirzapur Stone Mahal Act was meant only for regulating the quarrying of building stone and was not meant to affect the right of the proprietors to the sub-soil minerals.For the reasons already expressed we hold that the State Government has no jurisdiction to apply the provisions of Section 17 (1) and (4) of the Act to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land in dispute and to order that the provisions of S. 5A of the Act will not apply to the land. We are further of the opinion that the State Government had no jurisdiction to order the Collector of Mirzapur to taken over possession of the land under S. 17 (1) of the Act. The notification, dated October 4, 1950 is therefore, illegal. For the same reasons the notification of the State Government under S. 6 of the Act, dated December 12, 1950 is ultra vires.We accordingly hold that a writ in the nature of certiorari should be granted quashing the notification of the State Government dated October 4, l950 by which the Governor has applied S. 17 (1) and (4) to the land in dispute and directed that the provisions of S. 5A of the Act should not apply to the land. We further order that the notification of the State Government, dated December 12, 1950 under S. 6 of the Act and also further proceedings taken in the land acquisition case after the issue of the notification should be quashed including the award dated, January 7, 1952 and the reference made to Civil Court under S. 18 of the Act.In Writ Petition No. 454 of 1955 the appellant had prayed also for a writ in the nature of mandamus commanding the respondents to restore to him the possession of the lands in dispute but in our judgment in State of Uttar Pradesh v. Raja Anand Brahma Shah Civil Appeals Nos. 653-654 and 655 of 1964: (reported in AIR 1967 SC 661 ), pronounced today we have held that the intermediary interest of the appellant in respect of pargana Agori had validly vested in the State of U. P. by notifications issued on June 30, 1953 and July 1, 1953 under the U. P. Zamindari Abolition and Land Reforms Act 1951 (as subsequently amended by the U. P. Zamindari Abolition and Land Reforms (Amendment) Act 1963 U. P. Act No. 1 of 1964-). In view of this decision the claim of the appellant for restoration of possession of the land must be rejected.
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Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Garu (dead) by his legal representatives Vs. The State of Andhra Pradesh & Others | that land, he will not be in a position to classify it as wet land for the benefit of claiming rent for himself in the same way as he would be if he owned a water source and supplied water therefrom as a guranteed supply to lands registered under that source as ayacut. In the present case, water, was Government water which was brought from Government project. 11. On behalf of the appellant it was submitted that this observation is unsound and is not supportable by any provision of law. The respondents Counsel was unable to support this observation of the High Court. 12. Reverting to Exhibit B-24 Kalipatnam village was compared with Losaragutlapadu, an adjacent village. In regard to that village also it is mentioned that there is an extensive wet cultivation in delta dry land under project channels as in Kalipatnam. Shri J. Sambamurthy, to whose inspection note, dated 1st July, 1948 reference is made in Exhibit B-24 appeared as D.W. 5 and the Counsel took us through his statement. In cross-examination he deposed as follows: I cannot say whether there are 4,000 acres of land which are double crop land. There are some lands in which double crops are grown. I cannot say their extent. There are small extents of garden lands. There are single crop lands under extension channel. All these lands are treated as dry lands rents reduced. The Kalipatnam is at the tail end of the delta……The Losara-gutlapadu is in Bhimavaram taluk Yanamadula Drain intervenes Kalipatnam and Losaragutlapadu. Gollavanithippa lands have come under cultivation previously. It is part of Losaragutlapadu. I cannot say whether there are 11,000 acres of land uncultivated in Losaragutlapadu. Probably it is forest area. There were small extents of land in Muthyalapalli and Vempa under the Project Channel. Exhibit B-4 shows that there are lands of double crop. Under the Act the plaintiff has to furnish a statement of lands, etc. The plaintiffs agent furnished Exhibit B-6. The soil of Losaragutlapadu was examined. This is contained in Exhibit B-24. The Settlement Officer classified the soils under contained Diglot Registers. An extract of it is contained in Exhibit B-24. I cannot say readily now without reference to Settlement Manual what the figures given in the Diglot Register are relating to the soils. That statement contained in the file relates to the Losaragutlapadu. A similar statement for Kalipatnam was not taken. There is no such statement for that village. I did not write to the Settlement Department to prepare such a statement for suit village. I do not know whether the Government analyse the soil through Agricultural Department before the project was started. I examined the soils at one or two places and I consulted the settlement register at that time. I cannot say whether those one or two places were under extension project. I remember I have taken description of the soil from the settlement register and Manual…. I do not know about the construction of the project. 13. Shri J. Satyanarayana, Tahsildar, who appeared as D.W. 7 stated in his cross-examination that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the settlement register for Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent, for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Exhibit B-24 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subject. 14. The appellants argument strongly pressed before us was that the class of land had been determined to be delta dry land exclusively on the basis of the settlement register which did not contain any entry with respect to Kalipatnam. The entry in the settlement register with respect to the soil of Losaragutlapadu could not be taken to cover the soil in Kalipatnam in the absence of evidence that the soil in these two villages was similar in this respect. Stress was also laid on the submission that description in the settlement register could not be considered to be conclusive and that proper factual inquiry was necessary because the determination affects the appellants proprietary rights. The submission appears to us to possess merit. The Special Officer had an obligation under section 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act, such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant (Exhibit B-24).which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based 6n no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under section 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act and, therefore, outside the purview of section 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of civil Courts cannot be excluded. The notification Exhibit A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act. | 1[ds]The submission seems to us to be justifiedThere is no dispute that clause (i) the only relevant clause to be considered in this connection.8. The general principle on which the jurisdiction of civil Courts can successfully be excluded in respect of decisions by special Tribunals is well settled. The difficulty usually arises in its application to given cases. As observed by the Privy Council in Secretary of State v. Mask and Company the exclusion of the jurisdiction of the civil Courts must either be explicitly expressed or clearly implied. Further even if the jurisdiction is so excluded the civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is unnecessary to refer to other cases dealing with this question. We need only refer to the recent decision of this Court in Dhulabhai and others v. The State of Madhya Pradesh and another, in which after an exhaustive discussion of the case law the legal position was summarised by the Court speaking through Hidayatullah, C.J., as follows:(1) Where the statute gives a finality to the orders of the special Tribunal the civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil CourtWhere there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals:(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry(7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply13. Shri J. Satyanarayana, Tahsildar, who appeared as D.W. 7 stated in hisn that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the settlement register for Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent, for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Exhibit4 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subjectThe submission appears to us to possess merit. The Special Officer had an obligation under section 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act, such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant (Exhibit, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based 6n no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under section 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act and, therefore, outside the purview of section 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of civil Courts cannot be excluded. The notification Exhibit3 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act. | 1 | 4,588 | 1,095 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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that land, he will not be in a position to classify it as wet land for the benefit of claiming rent for himself in the same way as he would be if he owned a water source and supplied water therefrom as a guranteed supply to lands registered under that source as ayacut. In the present case, water, was Government water which was brought from Government project. 11. On behalf of the appellant it was submitted that this observation is unsound and is not supportable by any provision of law. The respondents Counsel was unable to support this observation of the High Court. 12. Reverting to Exhibit B-24 Kalipatnam village was compared with Losaragutlapadu, an adjacent village. In regard to that village also it is mentioned that there is an extensive wet cultivation in delta dry land under project channels as in Kalipatnam. Shri J. Sambamurthy, to whose inspection note, dated 1st July, 1948 reference is made in Exhibit B-24 appeared as D.W. 5 and the Counsel took us through his statement. In cross-examination he deposed as follows: I cannot say whether there are 4,000 acres of land which are double crop land. There are some lands in which double crops are grown. I cannot say their extent. There are small extents of garden lands. There are single crop lands under extension channel. All these lands are treated as dry lands rents reduced. The Kalipatnam is at the tail end of the delta……The Losara-gutlapadu is in Bhimavaram taluk Yanamadula Drain intervenes Kalipatnam and Losaragutlapadu. Gollavanithippa lands have come under cultivation previously. It is part of Losaragutlapadu. I cannot say whether there are 11,000 acres of land uncultivated in Losaragutlapadu. Probably it is forest area. There were small extents of land in Muthyalapalli and Vempa under the Project Channel. Exhibit B-4 shows that there are lands of double crop. Under the Act the plaintiff has to furnish a statement of lands, etc. The plaintiffs agent furnished Exhibit B-6. The soil of Losaragutlapadu was examined. This is contained in Exhibit B-24. The Settlement Officer classified the soils under contained Diglot Registers. An extract of it is contained in Exhibit B-24. I cannot say readily now without reference to Settlement Manual what the figures given in the Diglot Register are relating to the soils. That statement contained in the file relates to the Losaragutlapadu. A similar statement for Kalipatnam was not taken. There is no such statement for that village. I did not write to the Settlement Department to prepare such a statement for suit village. I do not know whether the Government analyse the soil through Agricultural Department before the project was started. I examined the soils at one or two places and I consulted the settlement register at that time. I cannot say whether those one or two places were under extension project. I remember I have taken description of the soil from the settlement register and Manual…. I do not know about the construction of the project. 13. Shri J. Satyanarayana, Tahsildar, who appeared as D.W. 7 stated in his cross-examination that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the settlement register for Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent, for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Exhibit B-24 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subject. 14. The appellants argument strongly pressed before us was that the class of land had been determined to be delta dry land exclusively on the basis of the settlement register which did not contain any entry with respect to Kalipatnam. The entry in the settlement register with respect to the soil of Losaragutlapadu could not be taken to cover the soil in Kalipatnam in the absence of evidence that the soil in these two villages was similar in this respect. Stress was also laid on the submission that description in the settlement register could not be considered to be conclusive and that proper factual inquiry was necessary because the determination affects the appellants proprietary rights. The submission appears to us to possess merit. The Special Officer had an obligation under section 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act, such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant (Exhibit B-24).which, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based 6n no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under section 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act and, therefore, outside the purview of section 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of civil Courts cannot be excluded. The notification Exhibit A-13 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act.
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to us to be justifiedThere is no dispute that clause (i) the only relevant clause to be considered in this connection.8. The general principle on which the jurisdiction of civil Courts can successfully be excluded in respect of decisions by special Tribunals is well settled. The difficulty usually arises in its application to given cases. As observed by the Privy Council in Secretary of State v. Mask and Company the exclusion of the jurisdiction of the civil Courts must either be explicitly expressed or clearly implied. Further even if the jurisdiction is so excluded the civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is unnecessary to refer to other cases dealing with this question. We need only refer to the recent decision of this Court in Dhulabhai and others v. The State of Madhya Pradesh and another, in which after an exhaustive discussion of the case law the legal position was summarised by the Court speaking through Hidayatullah, C.J., as follows:(1) Where the statute gives a finality to the orders of the special Tribunal the civil Courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil CourtWhere there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals:(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry(7) An exclusion of the jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply13. Shri J. Satyanarayana, Tahsildar, who appeared as D.W. 7 stated in hisn that the lands in Kalipatnam were sanctioned with two crops, though he could not say whether they were under cultivation since 1948. He was also unable to say whether the settlement register for Kalipatnam was available in Taluk Office. According to him water rate in the year 1958 was increased 50 per cent, for all lands including Kalipatnam. The cess was also increased proportionately. He was unable to explain the figures given under the description of the soil in Exhibit4 and indeed he expressed his ignorance about the existence of any register for Kalipatnam on this subjectThe submission appears to us to possess merit. The Special Officer had an obligation under section 2 of the Reduction of Rent Act to determine in respect of Kalipatnam village the average rate of cash rent per acre for each class of ryoti land in existence at the time of the commencement of the Act, such as, wet, dry and garden. This had to be determined on the basis of relevant material. The Special Officer, however, proceeded to found his determination only on the report of the Special Assistant (Exhibit, as discussed above, only took into account the entry in the settlement register with respect to the soil of Losaragutlapadu. This really means that the determination of the Special Officer is solely based on the settlement register containing no entry in regard to Kalipatnam. This material is irrelevant and cannot constitute a rational basis for founding thereon the determination of the Special Officer. His determination must, therefore, be held to be based 6n no evidence, with the result that it must be held to be in violation of the fundamental principles of judicial procedure. A fortiori the order of the Government made under section 3 (2) exclusively on the basis of the recommendation of the Special Officer must in consequence be held to be not in conformity with the provisions of the Reduction of Rent Act and, therefore, outside the purview of section 3 (2) of that Act. Section 8 (i) would accordingly be inapplicable and the jurisdiction of civil Courts cannot be excluded. The notification Exhibit3 must, therefore, be struck down as contrary to law and ultra vires the Reduction of Rent Act.
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State of Madhya Pradesh & Others Vs. M/s. Nathabhai Desaibhai Patel | Hegde, J.1. This is an appeal by Certificate from the decision of the High Court of Madhya Pradesh. The defendant in the suit is the appellant herein. The plaintiff therein is the respondent. The plaintiff claimed a sum of Rs. 89, 408-15-6 as being the principal and interest of the amount illegally realised from him on the ground that amount collected by him as sales-tax from his customers is payable to the Government. The principal amount claimed is Rs. 62, 518-8-0.2. The trial Court came to the conclusion that the collection in question was illegal. But it dismissed the suit on the ground that the same was barred by limitation.3. In appeal, the High Court disagreeing with the view taken by the trial Court decreed the principal amount claimed by the plaintiff and interest on the same at 5 per cent per annum from the date of the suit. It came to the conclusion that the suit was within time. The defendant did not challenge the finding of the trial Court as to its liability.4. In this Court, the counsel for the appellant-defendant did not context the correctness of the decision of the High Court on the question of limitation. They only contention urged by him was that the High Court erred in awarding interest on the principal amount claimed from the date of the suit. The question, whether interest should be awarded on the principal amount claimed from the date of the suit, was within the discretion of the Court. In our opinion, the High Court rightly exercised that discretion. It disallowed the interest claimed by the plaintiff-respondent up till the date of the suit. Coming to the question of interest, subsequent to the date of institution of the suit, it was found that the appellant had unlawfully withheld the amount due to the respondent even after coming to know that the collection made was an illegal one. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. That being so, in our opinion, the High Court was justified in awarding interest on the principal amount from the date of the suit. | 0[ds]4. In this Court, the counsel for thedid not context the correctness of the decision of the High Court on the question of limitation. They only contention urged by him was that the High Court erred in awarding interest on the principal amount claimed from the date of the suit. The question, whether interest should be awarded on the principal amount claimed from the date of the suit, was within the discretion of the Court. In our opinion, the High Court rightly exercised that discretion. It disallowed the interest claimed by theup till the date of the suit. Coming to the question of interest, subsequent to the date of institution of the suit, it was found that the appellant had unlawfully withheld the amount due to the respondent even after coming to know that the collection made was an illegal one. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. That being so, in our opinion, the High Court was justified in awarding interest on the principal amount from the date of the suit. | 0 | 422 | 232 | ### Instruction:
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Hegde, J.1. This is an appeal by Certificate from the decision of the High Court of Madhya Pradesh. The defendant in the suit is the appellant herein. The plaintiff therein is the respondent. The plaintiff claimed a sum of Rs. 89, 408-15-6 as being the principal and interest of the amount illegally realised from him on the ground that amount collected by him as sales-tax from his customers is payable to the Government. The principal amount claimed is Rs. 62, 518-8-0.2. The trial Court came to the conclusion that the collection in question was illegal. But it dismissed the suit on the ground that the same was barred by limitation.3. In appeal, the High Court disagreeing with the view taken by the trial Court decreed the principal amount claimed by the plaintiff and interest on the same at 5 per cent per annum from the date of the suit. It came to the conclusion that the suit was within time. The defendant did not challenge the finding of the trial Court as to its liability.4. In this Court, the counsel for the appellant-defendant did not context the correctness of the decision of the High Court on the question of limitation. They only contention urged by him was that the High Court erred in awarding interest on the principal amount claimed from the date of the suit. The question, whether interest should be awarded on the principal amount claimed from the date of the suit, was within the discretion of the Court. In our opinion, the High Court rightly exercised that discretion. It disallowed the interest claimed by the plaintiff-respondent up till the date of the suit. Coming to the question of interest, subsequent to the date of institution of the suit, it was found that the appellant had unlawfully withheld the amount due to the respondent even after coming to know that the collection made was an illegal one. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. That being so, in our opinion, the High Court was justified in awarding interest on the principal amount from the date of the suit.
### Response:
0
### Explanation:
4. In this Court, the counsel for thedid not context the correctness of the decision of the High Court on the question of limitation. They only contention urged by him was that the High Court erred in awarding interest on the principal amount claimed from the date of the suit. The question, whether interest should be awarded on the principal amount claimed from the date of the suit, was within the discretion of the Court. In our opinion, the High Court rightly exercised that discretion. It disallowed the interest claimed by theup till the date of the suit. Coming to the question of interest, subsequent to the date of institution of the suit, it was found that the appellant had unlawfully withheld the amount due to the respondent even after coming to know that the collection made was an illegal one. Before instituting the suit, the respondent had issued a notice to the appellant, calling upon the appellant to pay the money illegally collected from it; but despite that notice, the appellant failed to pay back the amount illegally collected from the respondent. That being so, in our opinion, the High Court was justified in awarding interest on the principal amount from the date of the suit.
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General Motors (I) Private Limited Vs. Ashok Ramnik Lal Tolat | a complaint by a consumer to whom goods are sold or delivered but also any recognised consumer association or one or more consumers on behalf of and for the benefit of all consumers but still, a case has to be made out and the affected party heard on such issue. We are conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. At the same time, fair procedure is hall mark of every legal proceeding and an affected party is entitled to be put to notice of the claim with such affected party has to meet. 19. We may at this stage refer to the scheme of the Act with regard to claim against “unfair trade practice”. The background and scope of the provision was dealt with in Ludhiana Improvement Trust v. Shakti Coop. House Building Society Ltd. [(2009) 12 SCC 369] as follows : “18. Prior to the substitution of clause (r) in sub-section (1) of Section 2 of he Act with retrospective effect from 18-6-1993, there was no separate definition of the term “unfair trade practice” and the said term was given the same meaning as in Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 (for short “the MRTP Act”). But now after the said amendment, the definition of the term has been specifically provided in Section 2(1)(r), although the definition is practically a verbatim reproduction of the definition in Section 36-A of the MRTP Act.19. The basic ingredients of “unfair trade practice” are:(i) it must be a trade practice;(ii) the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and(iii) the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in clauses (1) to (6) of Section 2(1)(r) of the Act.Therefore, any trade practice which is adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, by adopting any unfair method or unfair or deceptive practice has to be treated as “unfair trade practice” for which an action under the provisions of the Act would lie, provided, the complainant is able to establish that he is a consumer within the meaning of Section 2(1)(d) of the Act.” In Colgate Palmolive (India) Ltd. v. MRTP Commission [(2003) 1 SCC 129] this Court laid down five ingredients which have to be established before a trade practice can be said to be an “unfair trade practice”. The Court laid the ingredients in the following manner: “16. A bare perusal of the aforementioned provision would clearly indicate that the following five ingredients are necessary to constitute an unfair trade practice:1. There must be a trade practice [within the meaning of Section 2(u) of the Monopolies and Restrictive Trade Practices Act].2. The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services.3. The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section 36-A.4. The trade practice should cause loss or injury to the consumers of goods or services.5. The trade practice under clause (1) should involve making a ‘statement’ whether orally or in writing or by visible representation.” Again in Godfrey Phillips India Ltd. v. Ajay Kumar [(2008) 4 SCC 504] , it was observed : “18. So far as Direction (iii) is concerned, it is to be noted that there was no prayer for any compensation. There was no allegation that the complainant had suffered any loss. Compensation can be granted only in terms of Section 14(1)(d) of the Act. Clause (d) contemplates award of compensation to the consumer for any loss or injury suffered due to negligence of the opposite party. In the present case there was no allegation or material placed on record to show negligence.” Thus, mere proof of “unfair trade practice” is not enough for claim or award of relief unless causing of loss is also established which in the present case has not been established. 20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law. 21. | 1[ds]We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law. | 1 | 3,849 | 298 | ### Instruction:
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a complaint by a consumer to whom goods are sold or delivered but also any recognised consumer association or one or more consumers on behalf of and for the benefit of all consumers but still, a case has to be made out and the affected party heard on such issue. We are conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hyper technical approach. At the same time, fair procedure is hall mark of every legal proceeding and an affected party is entitled to be put to notice of the claim with such affected party has to meet. 19. We may at this stage refer to the scheme of the Act with regard to claim against “unfair trade practice”. The background and scope of the provision was dealt with in Ludhiana Improvement Trust v. Shakti Coop. House Building Society Ltd. [(2009) 12 SCC 369] as follows : “18. Prior to the substitution of clause (r) in sub-section (1) of Section 2 of he Act with retrospective effect from 18-6-1993, there was no separate definition of the term “unfair trade practice” and the said term was given the same meaning as in Section 36-A of the Monopolies and Restrictive Trade Practices Act, 1969 (for short “the MRTP Act”). But now after the said amendment, the definition of the term has been specifically provided in Section 2(1)(r), although the definition is practically a verbatim reproduction of the definition in Section 36-A of the MRTP Act.19. The basic ingredients of “unfair trade practice” are:(i) it must be a trade practice;(ii) the trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or for the provision of any service; and(iii) the trade practice adopts any unfair method or unfair or deceptive practice including any of the practices enumerated in clauses (1) to (6) of Section 2(1)(r) of the Act.Therefore, any trade practice which is adopted for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, by adopting any unfair method or unfair or deceptive practice has to be treated as “unfair trade practice” for which an action under the provisions of the Act would lie, provided, the complainant is able to establish that he is a consumer within the meaning of Section 2(1)(d) of the Act.” In Colgate Palmolive (India) Ltd. v. MRTP Commission [(2003) 1 SCC 129] this Court laid down five ingredients which have to be established before a trade practice can be said to be an “unfair trade practice”. The Court laid the ingredients in the following manner: “16. A bare perusal of the aforementioned provision would clearly indicate that the following five ingredients are necessary to constitute an unfair trade practice:1. There must be a trade practice [within the meaning of Section 2(u) of the Monopolies and Restrictive Trade Practices Act].2. The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services.3. The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section 36-A.4. The trade practice should cause loss or injury to the consumers of goods or services.5. The trade practice under clause (1) should involve making a ‘statement’ whether orally or in writing or by visible representation.” Again in Godfrey Phillips India Ltd. v. Ajay Kumar [(2008) 4 SCC 504] , it was observed : “18. So far as Direction (iii) is concerned, it is to be noted that there was no prayer for any compensation. There was no allegation that the complainant had suffered any loss. Compensation can be granted only in terms of Section 14(1)(d) of the Act. Clause (d) contemplates award of compensation to the consumer for any loss or injury suffered due to negligence of the opposite party. In the present case there was no allegation or material placed on record to show negligence.” Thus, mere proof of “unfair trade practice” is not enough for claim or award of relief unless causing of loss is also established which in the present case has not been established. 20. We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law. 21.
### Response:
1
### Explanation:
We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law.
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Banwar Lal Vs. G. Kalavathi (Dead) By Lrs. | that the High Court had erred in restricting payment of compensation till after the decision in the land grabbing case, since it had found that the same had been filed only as a counter blast to the contempt petition filed by the writ petitioner.21. Mr. Nariman submitted that there was no ground to interfere with the findings of the High Court or the decision arrived at therein in the contempt proceedings, but the compensation computed was liable to be reconsidered in the light of the admission made by the appellants themselves in Civil Appeal Nos.2200-01 of 2001.22. Since this appeal arises out of orders passed by the High Court on the contempt petition filed on behalf of respondents in Contempt Application No. 1563 of 1999 and CC No.1819/1999, it would be in the fitness of things to first of all consider whether the High Court was justified in holding that the appellants had violated the order dated 14.9.1995 passed by the Division Bench in Writ Appeal No.742 of 1989 filed by the Mandal Revenue Officer, Golconda Mandal, Hyderabad. 23. As has been indicated hereinbefore the respondents herein challenged the notice dated 20.6.1986 issued by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, under Section 6 of the A.P. Land Encroachment Act, 1905 and the learned single Judge quashed the same for the reasons indicated in his judgment and order dated 14.10.1988. 24. In the Writ Appeal filed by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, the Division Bench of the High Court did not interfere with the judgment and order of the learned Single Judge upon holding that the learned Single Judge had rightly allowed the writ petition. However, while dismissing the writ appeal the Division Bench directed the status quo to be maintained for a period of three months from the date of the order to enable the Government to take appropriate steps in the matter. 25. It is in respect of this order that the contempt petition was filed and the Division Bench also arrived at a finding that the appellant herein had committed contempt of Court by violating the said order.26. We are unable to agree with the reasoning of the Division Bench in the impugned judgment in holding that the appellants had committed contempt of the said order dated 14.9.1995. There is no ambiguity that while the direction to maintain status quo for three months were given on 14.9.1995, the contempt petition was filed only in October, 1999. The period for which status quo was directed to be maintained came to an end on 14.12.1995 and there is nothing on record to indicate that the order of status quo was ever extended. The fact that construction was going on in the land in question came to the knowledge of the respondents herein on 19.11.1999 when Smt. G. Kalavathi visited the property and thereafter steps were set in motion for filing of the contempt petition. Since there is nothing to indicate whether the construction work was being carried on during the period when the order of status quo was in force and the contempt petition was filed almost four years after the order of status quo ceased to operate, it is difficult for us to appreciate as to how the Division Bench of the High Court could have found the appellants herein to have committed contempt of Court. The findings of the High Court in respect of the same must be held to be contrary to the materials on record. 27. This now brings us to the other limb of the order impugned in these appeals. 28. From the facts as stated hereinabove it is clear that M/s Hyderabad Industries Limited was in possession of five different plots of land, out of which three plots measuring 13 acres and 13 guntas had been purchased by the said company. Of the remaining two plots, the said company was also in occupation of 10 acres of land which had been leased to it by Smt. G. Kalavathi. It is also apparent that the lands enclosed within the boundary wall of the guest house of M/s Hyderabad Industries Limited were the lands forming the subject matter of the three sale deeds. In other words, the land leased to the company by Smt. G. Kalavathi was part of the 19 acres of land which was the subject matter of the notice issue by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, on 20.6.1986 under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905, which was quashed in Writ Petition No.11714 of 1986 and had been utilised for constructing the ministers quarters.29. From the submissions made and also from the findings in the impugned judgment it is also clear that the said 19 acres of land have already been utilised for construction of ministers quarters and as rightly pointed out by the High Court would cause great hardship to the respondents in the event a direction was given to them to restore the land to the respondents. 30. In the other appeal, being Civil Appeal No.2202 of 2001, filed by Smt. G. Kalavathi, one of the questions raised is whether the High Court was justified in directing payment of compensation at the rate of Rs.5000 per square yard subject to the condition that the same be paid after the determination of the land grabbing case filed by the State against the respondents under the provisions of Andhra Pradesh Land Grabbing Provisions Act, 1982. It has been urged by Mr. Nariman that the appellants had themselves assessed the value of the lands in question to be more than Rs.20,000/- per square yard in Ground S of their Special Leave Petition filed in 2001 and hence the amount decided as compensation by the High Court was not commensurate with the value assessed by the appellants themselves, and should therefore, be increased. 31. Considering the ground realities and the assessment made by the State authorities themselves, there appears to be some substance in Mr. Narimans submissions. | 1[ds]25. It is in respect of this order that the contempt petition was filed and the Division Bench also arrived at a finding that the appellant herein had committed contempt of Court by violating the said order.26. We are unable to agree with the reasoning of the Division Bench in the impugned judgment in holding that the appellants had committed contempt of the said order dated 14.9.1995. There is no ambiguity that while the direction to maintain status quo for three months were given on 14.9.1995, the contempt petition was filed only in October, 1999. The period for which status quo was directed to be maintained came to an end on 14.12.1995 and there is nothing on record to indicate that the order of status quo was ever extended. The fact that construction was going on in the land in question came to the knowledge of the respondents herein on 19.11.1999 when Smt. G. Kalavathi visited the property and thereafter steps were set in motion for filing of the contempt petition. Since there is nothing to indicate whether the construction work was being carried on during the period when the order of status quo was in force and the contempt petition was filed almost four years after the order of status quo ceased to operate, it is difficult for us to appreciate as to how the Division Bench of the High Court could have found the appellants herein to have committed contempt of Court. The findings of the High Court in respect of the same must be held to be contrary to the materials on record.From the facts as stated hereinabove it is clear that M/s Hyderabad Industries Limited was in possession of five different plots of land, out of which three plots measuring 13 acres and 13 guntas had been purchased by the said company. Of the remaining two plots, the said company was also in occupation of 10 acres of land which had been leased to it by Smt. G. Kalavathi. It is also apparent that the lands enclosed within the boundary wall of the guest house of M/s Hyderabad Industries Limited were the lands forming the subject matter of the three sale deeds. In other words, the land leased to the company by Smt. G. Kalavathi was part of the 19 acres of land which was the subject matter of the notice issue by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, on 20.6.1986 under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905, which was quashed in Writ Petition No.11714 of 1986 and had been utilised for constructing the ministers quarters.29. From the submissions made and also from the findings in the impugned judgment it is also clear that the said 19 acres of land have already been utilised for construction of ministers quarters and as rightly pointed out by the High Court would cause great hardship to the respondents in the event a direction was given to them to restore the land to the respondents.Considering the ground realities and the assessment made by the State authorities themselves, there appears to be some substance in Mr. Narimans submissions. | 1 | 5,127 | 553 | ### Instruction:
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that the High Court had erred in restricting payment of compensation till after the decision in the land grabbing case, since it had found that the same had been filed only as a counter blast to the contempt petition filed by the writ petitioner.21. Mr. Nariman submitted that there was no ground to interfere with the findings of the High Court or the decision arrived at therein in the contempt proceedings, but the compensation computed was liable to be reconsidered in the light of the admission made by the appellants themselves in Civil Appeal Nos.2200-01 of 2001.22. Since this appeal arises out of orders passed by the High Court on the contempt petition filed on behalf of respondents in Contempt Application No. 1563 of 1999 and CC No.1819/1999, it would be in the fitness of things to first of all consider whether the High Court was justified in holding that the appellants had violated the order dated 14.9.1995 passed by the Division Bench in Writ Appeal No.742 of 1989 filed by the Mandal Revenue Officer, Golconda Mandal, Hyderabad. 23. As has been indicated hereinbefore the respondents herein challenged the notice dated 20.6.1986 issued by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, under Section 6 of the A.P. Land Encroachment Act, 1905 and the learned single Judge quashed the same for the reasons indicated in his judgment and order dated 14.10.1988. 24. In the Writ Appeal filed by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, the Division Bench of the High Court did not interfere with the judgment and order of the learned Single Judge upon holding that the learned Single Judge had rightly allowed the writ petition. However, while dismissing the writ appeal the Division Bench directed the status quo to be maintained for a period of three months from the date of the order to enable the Government to take appropriate steps in the matter. 25. It is in respect of this order that the contempt petition was filed and the Division Bench also arrived at a finding that the appellant herein had committed contempt of Court by violating the said order.26. We are unable to agree with the reasoning of the Division Bench in the impugned judgment in holding that the appellants had committed contempt of the said order dated 14.9.1995. There is no ambiguity that while the direction to maintain status quo for three months were given on 14.9.1995, the contempt petition was filed only in October, 1999. The period for which status quo was directed to be maintained came to an end on 14.12.1995 and there is nothing on record to indicate that the order of status quo was ever extended. The fact that construction was going on in the land in question came to the knowledge of the respondents herein on 19.11.1999 when Smt. G. Kalavathi visited the property and thereafter steps were set in motion for filing of the contempt petition. Since there is nothing to indicate whether the construction work was being carried on during the period when the order of status quo was in force and the contempt petition was filed almost four years after the order of status quo ceased to operate, it is difficult for us to appreciate as to how the Division Bench of the High Court could have found the appellants herein to have committed contempt of Court. The findings of the High Court in respect of the same must be held to be contrary to the materials on record. 27. This now brings us to the other limb of the order impugned in these appeals. 28. From the facts as stated hereinabove it is clear that M/s Hyderabad Industries Limited was in possession of five different plots of land, out of which three plots measuring 13 acres and 13 guntas had been purchased by the said company. Of the remaining two plots, the said company was also in occupation of 10 acres of land which had been leased to it by Smt. G. Kalavathi. It is also apparent that the lands enclosed within the boundary wall of the guest house of M/s Hyderabad Industries Limited were the lands forming the subject matter of the three sale deeds. In other words, the land leased to the company by Smt. G. Kalavathi was part of the 19 acres of land which was the subject matter of the notice issue by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, on 20.6.1986 under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905, which was quashed in Writ Petition No.11714 of 1986 and had been utilised for constructing the ministers quarters.29. From the submissions made and also from the findings in the impugned judgment it is also clear that the said 19 acres of land have already been utilised for construction of ministers quarters and as rightly pointed out by the High Court would cause great hardship to the respondents in the event a direction was given to them to restore the land to the respondents. 30. In the other appeal, being Civil Appeal No.2202 of 2001, filed by Smt. G. Kalavathi, one of the questions raised is whether the High Court was justified in directing payment of compensation at the rate of Rs.5000 per square yard subject to the condition that the same be paid after the determination of the land grabbing case filed by the State against the respondents under the provisions of Andhra Pradesh Land Grabbing Provisions Act, 1982. It has been urged by Mr. Nariman that the appellants had themselves assessed the value of the lands in question to be more than Rs.20,000/- per square yard in Ground S of their Special Leave Petition filed in 2001 and hence the amount decided as compensation by the High Court was not commensurate with the value assessed by the appellants themselves, and should therefore, be increased. 31. Considering the ground realities and the assessment made by the State authorities themselves, there appears to be some substance in Mr. Narimans submissions.
### Response:
1
### Explanation:
25. It is in respect of this order that the contempt petition was filed and the Division Bench also arrived at a finding that the appellant herein had committed contempt of Court by violating the said order.26. We are unable to agree with the reasoning of the Division Bench in the impugned judgment in holding that the appellants had committed contempt of the said order dated 14.9.1995. There is no ambiguity that while the direction to maintain status quo for three months were given on 14.9.1995, the contempt petition was filed only in October, 1999. The period for which status quo was directed to be maintained came to an end on 14.12.1995 and there is nothing on record to indicate that the order of status quo was ever extended. The fact that construction was going on in the land in question came to the knowledge of the respondents herein on 19.11.1999 when Smt. G. Kalavathi visited the property and thereafter steps were set in motion for filing of the contempt petition. Since there is nothing to indicate whether the construction work was being carried on during the period when the order of status quo was in force and the contempt petition was filed almost four years after the order of status quo ceased to operate, it is difficult for us to appreciate as to how the Division Bench of the High Court could have found the appellants herein to have committed contempt of Court. The findings of the High Court in respect of the same must be held to be contrary to the materials on record.From the facts as stated hereinabove it is clear that M/s Hyderabad Industries Limited was in possession of five different plots of land, out of which three plots measuring 13 acres and 13 guntas had been purchased by the said company. Of the remaining two plots, the said company was also in occupation of 10 acres of land which had been leased to it by Smt. G. Kalavathi. It is also apparent that the lands enclosed within the boundary wall of the guest house of M/s Hyderabad Industries Limited were the lands forming the subject matter of the three sale deeds. In other words, the land leased to the company by Smt. G. Kalavathi was part of the 19 acres of land which was the subject matter of the notice issue by the Mandal Revenue Officer, Golconda Mandal, Hyderabad, on 20.6.1986 under Section 6 of the Andhra Pradesh Land Encroachment Act, 1905, which was quashed in Writ Petition No.11714 of 1986 and had been utilised for constructing the ministers quarters.29. From the submissions made and also from the findings in the impugned judgment it is also clear that the said 19 acres of land have already been utilised for construction of ministers quarters and as rightly pointed out by the High Court would cause great hardship to the respondents in the event a direction was given to them to restore the land to the respondents.Considering the ground realities and the assessment made by the State authorities themselves, there appears to be some substance in Mr. Narimans submissions.
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Adltya Mills Ltd Vs. Union Of India | to clear PPRF yarn without further payment of duty under tariff item 68 of the said Rules, on or from April 27, 1976, they started making clearance on payment of duty on PPRF yarn under protest. 3. Thereafter, in October 1978, the appellant filed refund claim for the period from April to September 1978 for a sum of Rs. 84, 651.77 collected by the revenue as duty on PPRF yarn under tariff items 68. The appellant Company, thereafter, received a show cause notice requiring it to show cause as to why the refund claim should not be rejected. The appellant Company filed its reply stating therein that the duty had already been paid on Polyester Spun Yarn, which was manufactured by it in its factory (under tariff item 18-E of the First Schedule of the Central Excises and Salt Act, 1944, hereinafter called the Act) and further that the appellant was purchasing Rayon Filament yarn, on which duty had already been paid (under tariff item 18-II) and that the appellant was only doubling two plies of duty paid Polyester Spun yarn with one ply of Rayon Filament yarn and no process of manufacture was carried out and further no new product came into being. 4. On or about July 3, 1979, the Assistant Collector of Central Excise rejected, the refund claim of the appellant despite the fact that a representation was pending before the Collector of Central Excise and Customs, Jaipur, against the action of the Inspector, Central Excise, in rejecting the classification list dated April 10, 1978 and demanding duty of excise on the PPRF yarn, on which duty has already been paid. In February 1980, the appeal filed before the Revisional Authority against the order of the Appellate Collector was transferred to the CEGAT under Section 35-P of the Act. 5. By the judgment in appeal, the Tribunal held that the goods in question, namely, PPRF yarn was taxable under tariff item 68 and there was no question of any refund being due to the appellant. 6. Hence, the short question involved in this appeal, is : whether the goods in question, namely, a special type of yarn marked as a finished product known as PPRF yarn, should be treated as such and taxed on that basis. Excise duty is a duty on the manufacture of goods and not on sale. Manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. If a new substance is brought into existence or if a new or different articles having a distinct name, character or us results from particular process or processes, such process or activity would amount to manufacture. The moment there is transformation into a new commodity commercially known as a separate and distinct commodity having its own character and use, manufacture takes place. See the observations of this Court in Union of India v. Delhi Cloth & General Mills, Union of India v. HUF Business known as Ramlal Mansukhrai, Rewari, Allenburry Engineers P. Ltd. v. Ramakrishna Dalmia, Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes), Ernakulam v. Pio Food Packers, Chowgule & Co. Pvt. Ltd. v. Union of India and the cases referred to in the decision of this Court in Empire Industries Ltd. v. Union of India. 7. In our opinion, the Tribunal was justified in the view it took. The Tribunals view is corroborated by its own view as expressed in its decision in Hyderabad Asbestos Cement Products Ltd. v. Union of India. Our attention was, however, drawn to the observations of the Bombay High Court in the case of Piramal Spg. & Wvg. Mills Ltd. v. Union of India, where the facts were slightly different but the learned Single Judge of the High Court held that merely by intertwining strings of cotton yarn and nylon yarn, no new product comes into being. Whether by a certain process a new product comes into being or not, is a question of fact. There is no particular definition of yarn in the Act or the Rules or the notifications. According to the oxford Dictionary yarn means any spun thread specially of kinds prepared by waving, knitting or rope-making. According to the Websters New World Dictionary, it is defined as any fiber, as wool, silk, flax, cotton, nylon, etc., spun into strands for weaving, knitting or making thread. 8. This Court in CST v. Sarin Textile Mills held that the fibre in order to answer the description of yarn must have two characteristics, firstly, it should be a spun strand and secondly such strand should be primarily meant for use in weaving, knitting or rope-making. The question is not whether it is a mixture of two yarns where as a process of mixing a separate and distinct goods known in the market as such, comes into being. For ascertaining the correct meaning of a fiscal entry reference to a dictionary is apt to be a somewhat delusive guides, as it gives all the different shades of meaning. The correct guide is the context and the trade meaning. The trade meaning is always to be given preference. See in this connection the observations in the famous Canadian case of King v. Planters. 9. The Tribunal has found that indisputably a new yarn has come into being which is known in the market on the evidence adduced before the Tribunal, and that PPRF is treated differently from Polyester Spun yarn and Rayon Filament yarn. We are, therefore, of the view that the Tribunal rightly came to the conclusion that this is a separate and distinct item. If having borne the correct legal principles in mind and in the light of the facts and without ignoring any relevant or material fact, the Tribunal comes to a conclusion on a question of classification of an item for tariff purpose, in our opinion, that finding cannot and should not be interfered with in appeal before this Court. In that view of the matter | 0[ds]9. The Tribunal has found that indisputably a new yarn has come into being which is known in the market on the evidence adduced before the Tribunal, and that PPRF is treated differently from Polyester Spun yarn and Rayon Filament yarn. We are, therefore, of the view that the Tribunal rightly came to the conclusion that this is a separate and distinct item. If having borne the correct legal principles in mind and in the light of the facts and without ignoring any relevant or material fact, the Tribunal comes to a conclusion on a question of classification of an item for tariff purpose, in our opinion, that finding cannot and should not be interfered with in appeal before this Court. In that view of the matter the appeal cannot be entertained and is, therefore, dismissed. | 0 | 1,288 | 155 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
to clear PPRF yarn without further payment of duty under tariff item 68 of the said Rules, on or from April 27, 1976, they started making clearance on payment of duty on PPRF yarn under protest. 3. Thereafter, in October 1978, the appellant filed refund claim for the period from April to September 1978 for a sum of Rs. 84, 651.77 collected by the revenue as duty on PPRF yarn under tariff items 68. The appellant Company, thereafter, received a show cause notice requiring it to show cause as to why the refund claim should not be rejected. The appellant Company filed its reply stating therein that the duty had already been paid on Polyester Spun Yarn, which was manufactured by it in its factory (under tariff item 18-E of the First Schedule of the Central Excises and Salt Act, 1944, hereinafter called the Act) and further that the appellant was purchasing Rayon Filament yarn, on which duty had already been paid (under tariff item 18-II) and that the appellant was only doubling two plies of duty paid Polyester Spun yarn with one ply of Rayon Filament yarn and no process of manufacture was carried out and further no new product came into being. 4. On or about July 3, 1979, the Assistant Collector of Central Excise rejected, the refund claim of the appellant despite the fact that a representation was pending before the Collector of Central Excise and Customs, Jaipur, against the action of the Inspector, Central Excise, in rejecting the classification list dated April 10, 1978 and demanding duty of excise on the PPRF yarn, on which duty has already been paid. In February 1980, the appeal filed before the Revisional Authority against the order of the Appellate Collector was transferred to the CEGAT under Section 35-P of the Act. 5. By the judgment in appeal, the Tribunal held that the goods in question, namely, PPRF yarn was taxable under tariff item 68 and there was no question of any refund being due to the appellant. 6. Hence, the short question involved in this appeal, is : whether the goods in question, namely, a special type of yarn marked as a finished product known as PPRF yarn, should be treated as such and taxed on that basis. Excise duty is a duty on the manufacture of goods and not on sale. Manufacture is complete as soon as by the application of one or more process, the raw material undergoes some change. If a new substance is brought into existence or if a new or different articles having a distinct name, character or us results from particular process or processes, such process or activity would amount to manufacture. The moment there is transformation into a new commodity commercially known as a separate and distinct commodity having its own character and use, manufacture takes place. See the observations of this Court in Union of India v. Delhi Cloth & General Mills, Union of India v. HUF Business known as Ramlal Mansukhrai, Rewari, Allenburry Engineers P. Ltd. v. Ramakrishna Dalmia, Deputy Commissioner, Sales Tax (Law) Board of Revenue (Taxes), Ernakulam v. Pio Food Packers, Chowgule & Co. Pvt. Ltd. v. Union of India and the cases referred to in the decision of this Court in Empire Industries Ltd. v. Union of India. 7. In our opinion, the Tribunal was justified in the view it took. The Tribunals view is corroborated by its own view as expressed in its decision in Hyderabad Asbestos Cement Products Ltd. v. Union of India. Our attention was, however, drawn to the observations of the Bombay High Court in the case of Piramal Spg. & Wvg. Mills Ltd. v. Union of India, where the facts were slightly different but the learned Single Judge of the High Court held that merely by intertwining strings of cotton yarn and nylon yarn, no new product comes into being. Whether by a certain process a new product comes into being or not, is a question of fact. There is no particular definition of yarn in the Act or the Rules or the notifications. According to the oxford Dictionary yarn means any spun thread specially of kinds prepared by waving, knitting or rope-making. According to the Websters New World Dictionary, it is defined as any fiber, as wool, silk, flax, cotton, nylon, etc., spun into strands for weaving, knitting or making thread. 8. This Court in CST v. Sarin Textile Mills held that the fibre in order to answer the description of yarn must have two characteristics, firstly, it should be a spun strand and secondly such strand should be primarily meant for use in weaving, knitting or rope-making. The question is not whether it is a mixture of two yarns where as a process of mixing a separate and distinct goods known in the market as such, comes into being. For ascertaining the correct meaning of a fiscal entry reference to a dictionary is apt to be a somewhat delusive guides, as it gives all the different shades of meaning. The correct guide is the context and the trade meaning. The trade meaning is always to be given preference. See in this connection the observations in the famous Canadian case of King v. Planters. 9. The Tribunal has found that indisputably a new yarn has come into being which is known in the market on the evidence adduced before the Tribunal, and that PPRF is treated differently from Polyester Spun yarn and Rayon Filament yarn. We are, therefore, of the view that the Tribunal rightly came to the conclusion that this is a separate and distinct item. If having borne the correct legal principles in mind and in the light of the facts and without ignoring any relevant or material fact, the Tribunal comes to a conclusion on a question of classification of an item for tariff purpose, in our opinion, that finding cannot and should not be interfered with in appeal before this Court. In that view of the matter
### Response:
0
### Explanation:
9. The Tribunal has found that indisputably a new yarn has come into being which is known in the market on the evidence adduced before the Tribunal, and that PPRF is treated differently from Polyester Spun yarn and Rayon Filament yarn. We are, therefore, of the view that the Tribunal rightly came to the conclusion that this is a separate and distinct item. If having borne the correct legal principles in mind and in the light of the facts and without ignoring any relevant or material fact, the Tribunal comes to a conclusion on a question of classification of an item for tariff purpose, in our opinion, that finding cannot and should not be interfered with in appeal before this Court. In that view of the matter the appeal cannot be entertained and is, therefore, dismissed.
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Central Bank of India Limited Vs. K.R. Meenakshisundaram | his service in the Bank. Consequently, the appellant cannot now take up the plea that the respondents services with the appellant, if terminated by it, had been so terminated from the 2nd of September, 1952. It was further argued that the correspondence clearly showed that the respondent had not abandoned his services or resigned his employment with the appellant; therefore, the action of the appellant amounted to refusal to give work to the respondent who was still its employee. The refusal to give work was a continuous process. It amounted to alteration of the conditions of service of the appellant. The termination of the respondents services had not taken place in any event before the 21st of; April, 1953. Therefore, the provisions of Ss. 22 and 23 applied to the facts of the present case and the Tribunal had jurisdiction to entertain the petition.7. Section 22 states;"During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall-(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or(b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal,save with the express permission in writing of the Appellate Tribunal."8. Section 23 states:"Where an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending beore it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly."It is clear from these provisions that S. 23 can only come into play if the provisions of S. 22 had been contravened.The Sastry Award was given on the 21th of April, 1953 and the appeal to the Labour Appellate Tribunal had been filed on the 16th of May, 1953. The services of the respondent were regarded by the appellant as having ended from the 2nd of September, 1952. If the services of the respondent had been terminated by the appellant they had been terminated before the Sastry Award was made.On the other hand, if the respondent abandoned his service or resigned his post, the termination of his service was not by the appellant in which case the provisions of S. 22 did not apply.Assuming, however, without deciding, that the appellant terminated his services, that termination was not during the 30 days allowed for filing of an appeal under S. 10 or during the pendency of an appeal. It is true that an industrial dispute was pending before the Sastry Tribunal at the time the respondents services ended. The remedy of the respondent then was really under S. 33-A of the Industrial Disputes Act, 1947. The Sastry Tribunal had, however, made its award on the 21th of April, 1953 and thereafter it was functus officio and no such application had been filed under S. 33-A before it gave its award. As the respondents services had not ended during the period stated in S. 22, it is clear that the provisions of that section did not apply. Since the provisions of S. 22 did not apply the petition filed by the respondent under S. 23 was misconceived and the Tribunal had no jurisdiction to entertain it. We wish to make it quite clear that we do not decide that the services of the respondent had been terminated by the appellant. What we do decide is that from the 2nd of September, 1952 the respondent was no longer in the service of the appellant and that even if it were to be assumed that the termination was by the appellant it was not during the period specified in S. 22.9. In our opinion the Tribunal erred in holding that the appellants action amounted to refusal to give work to the respondent and as that refusal continued during the relevant period under S. 22 it had jurisdiction to entertain and consider the petition under S. 23.In our opinion, no such conclusion could be drawn from the correspondence between the appellant and the respondent referred to above. That correspondence clearly showed that if the respondent did not join his duties at Mangalore by the lst of September, 1952, the appellant would not consider the respondent as any longer in its service. The notice given was clear and as the respondent did not resume his duties at Mangalore by the lst of September, 1952, it could be inferred by the appellant that the respondent voluntarily left its service. On the other hand, it may be possible to infer from the contents of the letter of the 26th of August, 1952, by which the respondent was given time until the lst of September, 1952 to join his duties at Mangalore otherwise he would be treated as no longer in its service, that his services were terminated by the appellant if the respondent failed to comply with the directions given therein. Whatever inference may be drawn from that letter, it is quite clear that the respondent was no longer in the service of the appellant from 2nd September, 1952. In any event, the letter of the appellant dated the 23rd of December, 1952 to the Conciliation Officer in reply to his letter of the 9th of December, 1952 clearly showed that the respondent was no longer in the service of the appellant.It would be, therefore, altogether wrong to suppose that this was a case where an employer had continuously refused to give work to his employee.10. It is unnecessary for us to give any decision on the merits of the case as our decision is that the Tribunal had no jurisdiction to entertain the complaint under S. 23 | 1[ds]9. In our opinion the Tribunal erred in holding that the appellants action amounted to refusal to give work to the respondent and as that refusal continued during the relevant period under S. 22 it had jurisdiction to entertain and consider the petition under S. 23.In our opinion, no such conclusion could be drawn from the correspondence between the appellant and the respondent referred to above. That correspondence clearly showed that if the respondent did not join his duties at Mangalore by the lst of September, 1952, the appellant would not consider the respondent as any longer in its service. The notice given was clear and as the respondent did not resume his duties at Mangalore by the lst of September, 1952, it could be inferred by the appellant that the respondent voluntarily left its service. On the other hand, it may be possible to infer from the contents of the letter of the 26th of August, 1952, by which the respondent was given time until the lst of September, 1952 to join his duties at Mangalore otherwise he would be treated as no longer in its service, that his services were terminated by the appellant if the respondent failed to comply with the directions given therein. Whatever inference may be drawn from that letter, it is quite clear that the respondent was no longer in the service of the appellant from 2nd September, 1952. In any event, the letter of the appellant dated the 23rd of December, 1952 to the Conciliation Officer in reply to his letter of the 9th of December, 1952 clearly showed that the respondent was no longer in the service of the appellant.It would be, therefore, altogether wrong to suppose that this was a case where an employer had continuously refused to give work to his employee.10. It is unnecessary for us to give any decision on the merits of the case as our decision is that the Tribunal had no jurisdiction to entertain the complaint under S. 23 | 1 | 2,516 | 362 | ### Instruction:
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his service in the Bank. Consequently, the appellant cannot now take up the plea that the respondents services with the appellant, if terminated by it, had been so terminated from the 2nd of September, 1952. It was further argued that the correspondence clearly showed that the respondent had not abandoned his services or resigned his employment with the appellant; therefore, the action of the appellant amounted to refusal to give work to the respondent who was still its employee. The refusal to give work was a continuous process. It amounted to alteration of the conditions of service of the appellant. The termination of the respondents services had not taken place in any event before the 21st of; April, 1953. Therefore, the provisions of Ss. 22 and 23 applied to the facts of the present case and the Tribunal had jurisdiction to entertain the petition.7. Section 22 states;"During the period of thirty days allowed for the filing of an appeal under section 10 or during the pendency of any appeal under this Act, no employer shall-(a) alter, to the prejudice of the workmen concerned in such appeal, the conditions of service applicable to them immediately before the filing of such appeal, or(b) discharge or punish, whether by dismissal or otherwise, any workmen concerned in such appeal,save with the express permission in writing of the Appellate Tribunal."8. Section 23 states:"Where an employer contravenes the provisions of section 22 during the pendency of proceedings before the Appellate Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Appellate Tribunal and on receipt of such complaint, the Appellate Tribunal shall decide the complaint as if it were an appeal pending beore it, in accordance with the provisions of this Act and shall pronounce its decision thereon and the provisions of this Act shall apply accordingly."It is clear from these provisions that S. 23 can only come into play if the provisions of S. 22 had been contravened.The Sastry Award was given on the 21th of April, 1953 and the appeal to the Labour Appellate Tribunal had been filed on the 16th of May, 1953. The services of the respondent were regarded by the appellant as having ended from the 2nd of September, 1952. If the services of the respondent had been terminated by the appellant they had been terminated before the Sastry Award was made.On the other hand, if the respondent abandoned his service or resigned his post, the termination of his service was not by the appellant in which case the provisions of S. 22 did not apply.Assuming, however, without deciding, that the appellant terminated his services, that termination was not during the 30 days allowed for filing of an appeal under S. 10 or during the pendency of an appeal. It is true that an industrial dispute was pending before the Sastry Tribunal at the time the respondents services ended. The remedy of the respondent then was really under S. 33-A of the Industrial Disputes Act, 1947. The Sastry Tribunal had, however, made its award on the 21th of April, 1953 and thereafter it was functus officio and no such application had been filed under S. 33-A before it gave its award. As the respondents services had not ended during the period stated in S. 22, it is clear that the provisions of that section did not apply. Since the provisions of S. 22 did not apply the petition filed by the respondent under S. 23 was misconceived and the Tribunal had no jurisdiction to entertain it. We wish to make it quite clear that we do not decide that the services of the respondent had been terminated by the appellant. What we do decide is that from the 2nd of September, 1952 the respondent was no longer in the service of the appellant and that even if it were to be assumed that the termination was by the appellant it was not during the period specified in S. 22.9. In our opinion the Tribunal erred in holding that the appellants action amounted to refusal to give work to the respondent and as that refusal continued during the relevant period under S. 22 it had jurisdiction to entertain and consider the petition under S. 23.In our opinion, no such conclusion could be drawn from the correspondence between the appellant and the respondent referred to above. That correspondence clearly showed that if the respondent did not join his duties at Mangalore by the lst of September, 1952, the appellant would not consider the respondent as any longer in its service. The notice given was clear and as the respondent did not resume his duties at Mangalore by the lst of September, 1952, it could be inferred by the appellant that the respondent voluntarily left its service. On the other hand, it may be possible to infer from the contents of the letter of the 26th of August, 1952, by which the respondent was given time until the lst of September, 1952 to join his duties at Mangalore otherwise he would be treated as no longer in its service, that his services were terminated by the appellant if the respondent failed to comply with the directions given therein. Whatever inference may be drawn from that letter, it is quite clear that the respondent was no longer in the service of the appellant from 2nd September, 1952. In any event, the letter of the appellant dated the 23rd of December, 1952 to the Conciliation Officer in reply to his letter of the 9th of December, 1952 clearly showed that the respondent was no longer in the service of the appellant.It would be, therefore, altogether wrong to suppose that this was a case where an employer had continuously refused to give work to his employee.10. It is unnecessary for us to give any decision on the merits of the case as our decision is that the Tribunal had no jurisdiction to entertain the complaint under S. 23
### Response:
1
### Explanation:
9. In our opinion the Tribunal erred in holding that the appellants action amounted to refusal to give work to the respondent and as that refusal continued during the relevant period under S. 22 it had jurisdiction to entertain and consider the petition under S. 23.In our opinion, no such conclusion could be drawn from the correspondence between the appellant and the respondent referred to above. That correspondence clearly showed that if the respondent did not join his duties at Mangalore by the lst of September, 1952, the appellant would not consider the respondent as any longer in its service. The notice given was clear and as the respondent did not resume his duties at Mangalore by the lst of September, 1952, it could be inferred by the appellant that the respondent voluntarily left its service. On the other hand, it may be possible to infer from the contents of the letter of the 26th of August, 1952, by which the respondent was given time until the lst of September, 1952 to join his duties at Mangalore otherwise he would be treated as no longer in its service, that his services were terminated by the appellant if the respondent failed to comply with the directions given therein. Whatever inference may be drawn from that letter, it is quite clear that the respondent was no longer in the service of the appellant from 2nd September, 1952. In any event, the letter of the appellant dated the 23rd of December, 1952 to the Conciliation Officer in reply to his letter of the 9th of December, 1952 clearly showed that the respondent was no longer in the service of the appellant.It would be, therefore, altogether wrong to suppose that this was a case where an employer had continuously refused to give work to his employee.10. It is unnecessary for us to give any decision on the merits of the case as our decision is that the Tribunal had no jurisdiction to entertain the complaint under S. 23
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Kishore Samrite Vs. State Of U.P. | but not even an iota of evidence has been placed on record of the writ petitions before the High Court or even in the appeal before this Court, which could even show the remote possibility of happening of the alleged rape incident on 3rd December, 2006. There is an affidavit by the police and report by the CBI to show that this incident never occurred and the three petitioners have specifically disputed and denied any such incident or making of any report in relation thereto or even in regard to the alleged illegal detention. Political rivalry can lead to such ill-founded litigation. In the case of Gosu Jayarami Reddy & Anr. v. State of Andhra Pradesh [(2011) 11 SCC 766] , this Court observed that political rivalry at times degenerates into personal vendetta where principles and policies take a back seat and personal ambition and longing for power drive men to commit the foulest of deeds to avenge defeat and to settle scores. These observations aptly apply to the facts of the present case particularly the writ petition preferred by the appellant. At one place, he claims to have acted as a public figure with good conscience but has stated false facts. On the other hand, he takes a somersault and claims that he acted on the directives of the political figures. It is unworthy of a public figure to act in such a manner and demonstrate a behaviour which is impermissible in law. Appellant as well as respondent No.8 filed Habeas corpus petitions claiming it to be a petition for attainment of public confidence and right to life. In the garb of doctrines like the Right to Liberty and access to justice, these petitioners not only intended but actually filed improper and untenable petitions, primarily with the object of attaining publicity and causing injury to the reputation of others. The term ‘person’ includes not only the physical body and members but also every bodily sense and personal attribute among which is the reputation a man has acquired. Reputation can also be defined to be good name, the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society. ‘Reputation’ is an element of personal security and is protected by Constitution equally with the right to enjoyment of life, liberty and property. Although ‘character’ and ‘reputation’ are often used synonymously, but these terms are distinguishable. ‘Character’ is what a man is and ‘reputation’ is what he is supposed to be in what people say he is. ‘Character’ depends on attributes possessed and ‘reputation’ on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. {Ref. Smt. Kiran Bedi v. The Committee of Inquiry & Anr. [(1989) 1 SCC 494] and Nilgiris Bar Association v. T.K. Mahalingam & Anr. [AIR 1998 SC 398 ]. The methodology adopted by the next friends in the writ petitions before the High Court was opposed to political values and administration of justice. In the case of Kusum Lata v. Union of India [(2006) 6 SCC 180] , this Court observed that when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the said petition should be dismissed by the Court. If such petitions are not properly regulated and abuse averted, it becomes a tool in unscrupulous hands to release vendetta and wreak vengeance as well. 52. In light of these legal principles, appellant and, in fact, to a great extent even respondent No.8 have made an attempt to hurt the reputation and image of respondent no.6 by stating incorrect facts, that too, by abusing the process of court. 53. Coming to the judgment of the High Court under appeal it has to be noticed that the appellant was deprived of adequate hearing by the High Court, but that defect stands cured inasmuch as we have heard of the concerned parties in both the writ petitions at length. The transfer of Writ Petition No. 111/2011 was not in consonance with the accepted canons of judicial administrative propriety. The imposition of such heavy costs upon the petitioner was not called for in the facts and circumstances of the case as the Court was not dealing with a suit for damages but with a petition for habeas corpus, even if the petition was not bona fide. Furthermore, we are unable to endorse our approval to the manner in which the costs imposed were ordered to be disbursed to the different parties. Moreover, the question of paying rewards to the Director General of Police does not arise as the police and the Director General of Police were only performing their duties by producing the petitioners in the Court. They, in any case, were living in their own house without restriction or any kind of detention by anyone. In fact, the three petitioners have been compulsorily dragged to the court by the petitioner in Writ Petition No. 125/2011. They had made no complaint to any person and thus, the question of their illegal detention and consequential release would not arise. These three persons have been used by both the petitioners and it is, in fact, they are the ones whose reputation has suffered a serious setback and were exposed to inconvenience of being dragged to courts for no fault of their own. We hardly see any attributes of the Police except performance of their duties in the normal course so as to entitled them to exceptional rewards. Certainly, the reputation of respondent no.6 has also been damaged, factually and in law. Both these petitions are based on falsehood. The reputation of respondent no.6 is damaged and his public image diminished due to the undesirable acts of the appellant and respondent no.8. 54. For these reasons, we | 0[ds]53. Coming to the judgment of the High Court under appeal it has to be noticed that the appellant was deprived of adequate hearing by the High Court, but that defect stands cured inasmuch as we have heard of the concerned parties in both the writ petitions at length. The transfer of Writ Petition No. 111/2011 was not in consonance with the accepted canons of judicial administrative propriety. The imposition of such heavy costs upon the petitioner was not called for in the facts and circumstances of the case as the Court was not dealing with a suit for damages but with a petition for habeas corpus, even if the petition was not bona fide. Furthermore, we are unable to endorse our approval to the manner in which the costs imposed were ordered to be disbursed to the different parties. Moreover, the question of paying rewards to the Director General of Police does not arise as the police and the Director General of Police were only performing their duties by producing the petitioners in the Court. They, in any case, were living in their own house without restriction or any kind of detention by anyone. In fact, the three petitioners have been compulsorily dragged to the court by the petitioner in Writ Petition No. 125/2011. They had made no complaint to any person and thus, the question of their illegal detention and consequential release would not arise. These three persons have been used by both the petitioners and it is, in fact, they are the ones whose reputation has suffered a serious setback and were exposed to inconvenience of being dragged to courts for no fault of their own. We hardly see any attributes of the Police except performance of their duties in the normal course so as to entitled them to exceptional rewards. Certainly, the reputation of respondent no.6 has also been damaged, factually and in law. Both these petitions are based on falsehood. The reputation of respondent no.6 is damaged and his public image diminished due to the undesirable acts of the appellant and respondent no.8. | 0 | 15,001 | 380 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
but not even an iota of evidence has been placed on record of the writ petitions before the High Court or even in the appeal before this Court, which could even show the remote possibility of happening of the alleged rape incident on 3rd December, 2006. There is an affidavit by the police and report by the CBI to show that this incident never occurred and the three petitioners have specifically disputed and denied any such incident or making of any report in relation thereto or even in regard to the alleged illegal detention. Political rivalry can lead to such ill-founded litigation. In the case of Gosu Jayarami Reddy & Anr. v. State of Andhra Pradesh [(2011) 11 SCC 766] , this Court observed that political rivalry at times degenerates into personal vendetta where principles and policies take a back seat and personal ambition and longing for power drive men to commit the foulest of deeds to avenge defeat and to settle scores. These observations aptly apply to the facts of the present case particularly the writ petition preferred by the appellant. At one place, he claims to have acted as a public figure with good conscience but has stated false facts. On the other hand, he takes a somersault and claims that he acted on the directives of the political figures. It is unworthy of a public figure to act in such a manner and demonstrate a behaviour which is impermissible in law. Appellant as well as respondent No.8 filed Habeas corpus petitions claiming it to be a petition for attainment of public confidence and right to life. In the garb of doctrines like the Right to Liberty and access to justice, these petitioners not only intended but actually filed improper and untenable petitions, primarily with the object of attaining publicity and causing injury to the reputation of others. The term ‘person’ includes not only the physical body and members but also every bodily sense and personal attribute among which is the reputation a man has acquired. Reputation can also be defined to be good name, the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society. ‘Reputation’ is an element of personal security and is protected by Constitution equally with the right to enjoyment of life, liberty and property. Although ‘character’ and ‘reputation’ are often used synonymously, but these terms are distinguishable. ‘Character’ is what a man is and ‘reputation’ is what he is supposed to be in what people say he is. ‘Character’ depends on attributes possessed and ‘reputation’ on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. {Ref. Smt. Kiran Bedi v. The Committee of Inquiry & Anr. [(1989) 1 SCC 494] and Nilgiris Bar Association v. T.K. Mahalingam & Anr. [AIR 1998 SC 398 ]. The methodology adopted by the next friends in the writ petitions before the High Court was opposed to political values and administration of justice. In the case of Kusum Lata v. Union of India [(2006) 6 SCC 180] , this Court observed that when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the said petition should be dismissed by the Court. If such petitions are not properly regulated and abuse averted, it becomes a tool in unscrupulous hands to release vendetta and wreak vengeance as well. 52. In light of these legal principles, appellant and, in fact, to a great extent even respondent No.8 have made an attempt to hurt the reputation and image of respondent no.6 by stating incorrect facts, that too, by abusing the process of court. 53. Coming to the judgment of the High Court under appeal it has to be noticed that the appellant was deprived of adequate hearing by the High Court, but that defect stands cured inasmuch as we have heard of the concerned parties in both the writ petitions at length. The transfer of Writ Petition No. 111/2011 was not in consonance with the accepted canons of judicial administrative propriety. The imposition of such heavy costs upon the petitioner was not called for in the facts and circumstances of the case as the Court was not dealing with a suit for damages but with a petition for habeas corpus, even if the petition was not bona fide. Furthermore, we are unable to endorse our approval to the manner in which the costs imposed were ordered to be disbursed to the different parties. Moreover, the question of paying rewards to the Director General of Police does not arise as the police and the Director General of Police were only performing their duties by producing the petitioners in the Court. They, in any case, were living in their own house without restriction or any kind of detention by anyone. In fact, the three petitioners have been compulsorily dragged to the court by the petitioner in Writ Petition No. 125/2011. They had made no complaint to any person and thus, the question of their illegal detention and consequential release would not arise. These three persons have been used by both the petitioners and it is, in fact, they are the ones whose reputation has suffered a serious setback and were exposed to inconvenience of being dragged to courts for no fault of their own. We hardly see any attributes of the Police except performance of their duties in the normal course so as to entitled them to exceptional rewards. Certainly, the reputation of respondent no.6 has also been damaged, factually and in law. Both these petitions are based on falsehood. The reputation of respondent no.6 is damaged and his public image diminished due to the undesirable acts of the appellant and respondent no.8. 54. For these reasons, we
### Response:
0
### Explanation:
53. Coming to the judgment of the High Court under appeal it has to be noticed that the appellant was deprived of adequate hearing by the High Court, but that defect stands cured inasmuch as we have heard of the concerned parties in both the writ petitions at length. The transfer of Writ Petition No. 111/2011 was not in consonance with the accepted canons of judicial administrative propriety. The imposition of such heavy costs upon the petitioner was not called for in the facts and circumstances of the case as the Court was not dealing with a suit for damages but with a petition for habeas corpus, even if the petition was not bona fide. Furthermore, we are unable to endorse our approval to the manner in which the costs imposed were ordered to be disbursed to the different parties. Moreover, the question of paying rewards to the Director General of Police does not arise as the police and the Director General of Police were only performing their duties by producing the petitioners in the Court. They, in any case, were living in their own house without restriction or any kind of detention by anyone. In fact, the three petitioners have been compulsorily dragged to the court by the petitioner in Writ Petition No. 125/2011. They had made no complaint to any person and thus, the question of their illegal detention and consequential release would not arise. These three persons have been used by both the petitioners and it is, in fact, they are the ones whose reputation has suffered a serious setback and were exposed to inconvenience of being dragged to courts for no fault of their own. We hardly see any attributes of the Police except performance of their duties in the normal course so as to entitled them to exceptional rewards. Certainly, the reputation of respondent no.6 has also been damaged, factually and in law. Both these petitions are based on falsehood. The reputation of respondent no.6 is damaged and his public image diminished due to the undesirable acts of the appellant and respondent no.8.
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C. B. Muthamma Vs. Union of India and Others | On subsequent occasion he personally informed the Petitioner that he had used his influence as Chairman to give minimum marks in the viva. As the time of entry into the Foreign Service, the petitioner had also to give an undertaking that if she were to get married she would resign from the service.That on numerous occasions the petitioner had to face the consequences of being a woman and thus suffered discrimination though the Constitution specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 14 of the Constitution provides the principles of equality before law........That members of the Appointments Committee of the Union Cabinet and the respondent No. 2 are basically prejudiced against women as a group. The Prime Minister of India has been reported in the Press as having stated-it will not be irrelevant here to mention that most of the women who are in the service at senior levels are being very systematically selected for posts which have traditionally been assigned a very low priority by the Ministry."3. If a fragment of these assertions were true, unconstitutionality is writ large in the administrative psyche and masculine hubris which is the anathema for part III haunts the echelons in the concerned Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.4. What is more manifest as misogynist in the Foreign Service is the persistence of two rules which have been extracted in the petition. Rule 8(2) of the Indian Foreign Service (Conduct &Discipline) Rules, 1961, unblushingly reads:"Rule 8(2): In cases where sub-rule (1) does not apply, a woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service."Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before s he marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may w ell arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species. Rule 18 of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain:"(1)............(2).............(3).............(4) No married woman shall be entitled as of right to be appointed to the service."5. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against womans thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of Indias humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.6. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivi ty. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Governments affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.The petitioner has, after the institution of this proceeding, been promoted. Is it a case of post hoc ergo propter hoc ? Where justice has been done, further probe is otiose. The Central Government states that although the petitioner was not found meritorious enough for promotion some months ago, she has been found to be good now, has been upgraded and appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance is only one. During the interval of some months between her first evaluation and the second, some officers junior to her have gone above her. In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. Since the career ahead of the petitioner may well be affected by the factum of prior birth into Grade I of the Service, her grievance turning on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves review vis-a-vis those junior to her who have been promoted in the interval of some months. The sense of injustice rankles and should be obliterated so that every servant in strategic position gives of his or her best to the country. We have had the advantage of the presence of the learned Solicitor-General, appearing for the Union of India. | 0[ds]At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against womans thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of Indias humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity isdo not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivi ty. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Governments affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.The petitioner has, after the institution of this proceeding, beenCentral Government states that although the petitioner was not found meritorious enough for promotion some months ago, she has been found to be good now, has been upgraded and appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance is only one. During the interval of some months between her first evaluation and the second, some officers junior to her have gone above her. In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. Since the career ahead of the petitioner may well be affected by the factum of prior birth into Grade I of the Service, her grievance turning on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves review vis-a-vis those junior to her who have been promoted in the interval of some months. The sense of injustice rankles and should be obliterated so that every servant in strategic position gives of his or her best to the country. | 0 | 1,441 | 530 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
On subsequent occasion he personally informed the Petitioner that he had used his influence as Chairman to give minimum marks in the viva. As the time of entry into the Foreign Service, the petitioner had also to give an undertaking that if she were to get married she would resign from the service.That on numerous occasions the petitioner had to face the consequences of being a woman and thus suffered discrimination though the Constitution specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 14 of the Constitution provides the principles of equality before law........That members of the Appointments Committee of the Union Cabinet and the respondent No. 2 are basically prejudiced against women as a group. The Prime Minister of India has been reported in the Press as having stated-it will not be irrelevant here to mention that most of the women who are in the service at senior levels are being very systematically selected for posts which have traditionally been assigned a very low priority by the Ministry."3. If a fragment of these assertions were true, unconstitutionality is writ large in the administrative psyche and masculine hubris which is the anathema for part III haunts the echelons in the concerned Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.4. What is more manifest as misogynist in the Foreign Service is the persistence of two rules which have been extracted in the petition. Rule 8(2) of the Indian Foreign Service (Conduct &Discipline) Rules, 1961, unblushingly reads:"Rule 8(2): In cases where sub-rule (1) does not apply, a woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service."Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before s he marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may w ell arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species. Rule 18 of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain:"(1)............(2).............(3).............(4) No married woman shall be entitled as of right to be appointed to the service."5. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against womans thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of Indias humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.6. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivi ty. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Governments affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.The petitioner has, after the institution of this proceeding, been promoted. Is it a case of post hoc ergo propter hoc ? Where justice has been done, further probe is otiose. The Central Government states that although the petitioner was not found meritorious enough for promotion some months ago, she has been found to be good now, has been upgraded and appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance is only one. During the interval of some months between her first evaluation and the second, some officers junior to her have gone above her. In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. Since the career ahead of the petitioner may well be affected by the factum of prior birth into Grade I of the Service, her grievance turning on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves review vis-a-vis those junior to her who have been promoted in the interval of some months. The sense of injustice rankles and should be obliterated so that every servant in strategic position gives of his or her best to the country. We have had the advantage of the presence of the learned Solicitor-General, appearing for the Union of India.
### Response:
0
### Explanation:
At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against womans thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of Indias humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity isdo not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivi ty. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central Governments affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.The petitioner has, after the institution of this proceeding, beenCentral Government states that although the petitioner was not found meritorious enough for promotion some months ago, she has been found to be good now, has been upgraded and appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance is only one. During the interval of some months between her first evaluation and the second, some officers junior to her have gone above her. In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. Since the career ahead of the petitioner may well be affected by the factum of prior birth into Grade I of the Service, her grievance turning on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves review vis-a-vis those junior to her who have been promoted in the interval of some months. The sense of injustice rankles and should be obliterated so that every servant in strategic position gives of his or her best to the country.
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Meenakshi Saxena and Ors Vs. ECGC Ltd. and Ors | date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff. 27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible. 28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order. 29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order. 30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law. | 0[ds]18. The whole purpose of Execution proceedings is to enforce the verdict of the court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree. At that juncture the executing court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree.We are compelled to observe that an order which is passed in the year 2006 is still subject to litigation till date for the simple reason minimum care is not taken by the forum to clarify the reckoning date for conversion rate of currency.22. In a contractual matter, when the decree is silent with regard to the reckoning date of conversion of foreign currency in to Indian rupees, what would be the methodology to be followed by the executing courtis no more res integra, as this court has an occasion to deal with elaborately in the case of Forasol v. ONGC, 1984 (Supp.) SCC 263, the facts of that case revolved around a contract entered into between ONGC and Forasol for carrying out structural drilling in relation to the exploration of oil in the Jaisalmer area.24. This Court recognized the principle that a determination of relevant date for conversion of currency would first take place in accordance with the contractual provision and thereafter, if such explicit determination is not available, then the court would have to determine the best possible date25. Further this court recognized the discretion of the Court to select the relevant dates and pointed out some of them in the following manner24. In an action to recover an amount payable in a foreign currency, five dates compete for selection by the Court as the proper date for fixing the rate of exchange at which the foreign currency amount has to be converted into the currency of the country in which the action has been commenced and decided(1) the date when the amount became due and payable;(2) the date of the commencement of the action;(3) the date of the decree;(4) the date when the Court orders execution to issue; and(5) the date when the decretal amount is paid or realised25. In a case where a decree has been passed by the Court in terms of an award made in a foreign currency a sixth date also enters, the competition, namely, the date of the award. The case before us is one in which a decree in terms of such an award has been passed by the Court. (emphasis supplied)26. Ultimately this Court on an extensive analysis came to a conclusion in the following manner-70. It would be convenient if we now set out the practice, which according to us, ought to be followed in suits in which a sum of money expressed in a foreign currency can legitimately be claimed by the plaintiff and decreed by the court. It is unnecessary for us to categorize the cases in which such a claim can be made and decreed. They have been sufficiently indicated in the English decisions referred to by us above. Such instances can, however, never, be exhausted because the law cannot afford to be static but must constantly develop and progress as the society to which it applies, changes its complexion and old ideologies and concepts are discarded and replaced by new. Suffice it to say that the case with which we are concerned was one which fell in this category. In such a suit, the plaintiff, who has not received the amount due to him in a foreign currency, and, therefore, desires to seek the assistance of the court to recover that amount, has two courses open to him. He can either claim the amount due to him in Indian currency or in the foreign currency in which it was payable. If he chooses the first alternative, he can only sue for that amount as converted into Indian rupees and his prayer in the plaint can only be for a sum in Indian currency. For this purpose, the plaintiff would have to convert the foreign currency amount due to him into Indian rupees. He can do so either at the rate of exchange prevailing on the date when the amount became payable for he was entitled to receive the amount on that date or, at his option, at the rate of exchange prevailing on the date of the filing of the suit because that is the date on which he is seeking the assistance of the court for recovering the amount due to him. In either event, the valuation of the suit for the purposes of court fees and the pecuniary limit of the jurisdiction of the court will be the amount in Indian currency claimed in the suit. The plaintiff may, however, choose the second course open to him and claim in foreign currency the amount due to him. In such a suit, the proper prayer for the plaintiff to make in his plaint would be for a decree that the defendant do pay to him the foreign currency sum claimed in the plaint subject to the permission of the concerned authorities under thebeing granted and that in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the defendant do pay to the plaintiff the rupee equivalent of the foreign currency sum claimed at the rate of exchange prevailing on the date of the judgment. For the purposes of court fees and jurisdiction the plaintiff should, however, value his claim in the suit by converting the foreign currency sum claimed by him into Indian rupees at the rate of exchange prevailing on the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under thebeing granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff.27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order.29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law. | 0 | 4,934 | 2,217 | ### Instruction:
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date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973, being granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff. 27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible. 28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order. 29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order. 30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law.
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the date of the filing of the suit or the date nearest or most nearly preceding such date, stating in his plaint what such rate of exchange is. He should further give an undertaking in the plaint that he would make good the deficiency in the courtfees, if any, if at the date of the judgment, at the rate of exchange then prevailing, the rupee equivalent of the foreign currency sum decreed is higher than that mentioned in the plaint for the purposes of courtfees and jurisdiction. At the hearing of such a suit, before passing the decree, the court should call upon the plaintiff to prove the rate of exchange prevailing on the date of the judgment or on the date nearest or most nearly preceding the date of the judgment. If necessary, after delivering judgment on all other issues, the court may stand over the rest of the judgment and the passing of the decree and adjourn the matter to enable the plaintiff to prove such rate of exchange. The decree to be passed by the court should be one which orders the defendant to pay to the plaintiff the foreign currency sum adjudged by the court subject to the requisite permission of the concerned authorities under thebeing granted, and in the event of the foreign exchange authorities not granting the requisite permission or the defendant not wanting to make payment in foreign currency even though such permission has been granted or the defendant not making payment in foreign currency or in Indian rupees, whether such permission has been granted or not, the equivalent of such foreign currency sum converted into Indian rupees at the rate of exchange proved before the court as aforesaid. In the event of the decree being challenged in appeal or other proceedings and such appeal or other proceedings being decided in whole or in part in favour of the plaintiff, the appellate court or the court hearing the application in the other proceedings challenging the decree should follow the same procedure as the trial court for the purpose of ascertaining the rate of exchange prevailing on the date of its appellate decree or of its order on such application or on the date nearest or most nearly preceding the date of such decree or order. If such rate of exchange is different from the rate in the decree which has been challenged, the court should make the necessary modification with respect to the rate of exchange by its appellate decree or final order. In all such cases, execution can only issue for the rupee equivalent specified in the decree, appellate decree or final order, as the case may be. These questions, of course, would not arise if pending appeal or other proceedings adopted by the defendant the decree has been executed or the money thereunder received by the plaintiff.27. In the light of the ratio laid down by this court in determining the relevant date for conversion of currency, the first procedure to be adopted by the court is to decide the same in accordance with terms of the contract, if such a clause is not available in the agreement then the courts have to determine the best possible date, then this court went ahead and dealt with the procedure to be adopted. But in the present facts that exercise is not relevant as there is a specific clause in the agreement i.e clause 17 which deals with rate of interest. The clause clearly says that currency should be converted into rupees at the bank buying rate of exchange at Mumbai on the date of relevant shipment. A close look at the relevant order dt. 12.10.2006 also discloses that the district forum has granted interest on the amount from 24.7.2002 which can be construed that the District Forum though has not mentioned about clause 17 of the agreement but taking in to consideration the very same clause has given interest from that day. The interpretation given by District Forum as well as the State Commission to the order dt. 12.10.2006 is contrary to the terms of the agreement and amounts to drawing a new decree which is not permissible28. We are unable to agree with the contentions of the learned counsel for the appellant that the NCDRC has gone beyond the decree and the NCDRC ought not to have gone into clause 17 are meritless hence rejected. In a case of this nature the only remedy available to the court is either to look at the terms of the contract or in the absence of the same to follow the procedure laid down by this court in the above stated judgment. The order passed by NCDRC is strictly in accordance with the settled legal position and we do not find any infirmity with the order.29. In conclusion, reading the judgment as a whole, without undertaking a piece meal approach as suggested by the appellant herein, interpreting the decree in a manner which may amount to substitution of a new decree is not countenanced under law. Therefore, it is clear that as per the insurance contract, the respondent insurer was required to pay the insurance claim in accordance with the conversion rate of the invoiced foreign currency in Indian rupee as per the bank buying rate of interest at Mumbai on the date of subject shipment for which the invoice was issued. We are apprised of the fact that the respondent judgment debtor has paid an amount of Rs. 11,23,906/ to the petitioner during the pendency of execution proceedings. The aforesaid payment was calculated on the basis of conversion rate applicable at the time of shipment of invoiced value and the interest awarded by the consumer forum. In view of the same the respondent has complied with the order of the forum by paying full and final amount in terms of the order30. Hence, we find no grounds to interfere with the order of the NCDRC which is based on sound principles of law.
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Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd | of the requirements which may be included in a notice under sub-section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section.(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.” 15. Section 147 prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, stood as follows: “147. Income escaping assessment. If (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year).Explanation 1.For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :(a) Where income chargeable to tax has been underassessed ; or(b) where such income has been assessed at too low rate ; or(c) where such income has been made the subject of excessive relief under this Act or under the Indian Income-tax Act, 1922 (11 of 1922); or(d) where excessive loss or depreciation allowance has been computed.Explanation 2.Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of this section.” 16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word ‘reason’ in the phrase ‘reason to believe’ would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991 (191) ITR 662 ], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is ‘reason to believe’, but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)] ; Raymond Woollen Mills Ltd. v. ITO [ 1999 (236) ITR 34 (SC)] .17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.18. So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued.19. Inevitable conclusion is that High Court has wrongly applied Adani’s case (supra) which has no application to the case on the facts in view of the conceptual difference between Section 143(1) and Section 143(3) of the Act.20. Learned counsel for the respondent submitted that other points are available to be raised. | 1[ds]13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between April 1, 1998 and May 31, 1999, sending of an intimation under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the wordas substituted forthat two different concepts emerged. While making an assessment, the Assessing Officer is free to make any addition after grant of opportunity to the assessee. By making adjustments under the first proviso to section 143(1)(a), no addition which is impermissible by the information given in the return could be made by the Assessing Officer. The reason is that under section 143(1)(a) no opportunity is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, to May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressionshave been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes ‘the computation ofsometimes ‘the determination of the amount of taxand sometimes ‘the whole procedure laid down in the Act for imposing liability upon the taxIn the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apogee International Limited v. Union of India [(1996) 220 ITR 248] . It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that anyis done by them? The reply is an emphaticThe intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.14. Additionally, section 148 as presently stands is differently couched in language from what was earlier the position. Prior to the substitution by the Direct Tax Laws (Amendment) Act, 1987, the provision read asIssue of notice where income has escaped assessment.(1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under(2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under thatThe Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.Section 147 prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, stood asIncome escaping assessment. If (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year).Explanation 1.For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :(a) Where income chargeable to tax has been underassessed ; or(b) where such income has been assessed at too low rate ; or(c) where such income has been made the subject of excessive relief under this Act or under the IndianAct, 1922 (11 of 1922); or(d) where excessive loss or depreciation allowance has been computed.Explanation 2.Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of this section.Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The wordin the phrase ‘reason towould mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991 (191) ITR 662 ], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is ‘reason tobut not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)] ; Raymond Woollen Mills Ltd. v. ITO [ 1999 (236) ITR 34 (SC)] .17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.18. So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued.19. Inevitable conclusion is that High Court has wrongly appliedcase (supra) which has no application to the case on the facts in view of the conceptual difference between Section 143(1) and Section 143(3) of the Act.20. Learned counsel for the respondent submitted that other points are available to be raised. | 1 | 4,894 | 2,200 | ### Instruction:
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of the requirements which may be included in a notice under sub-section (2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section.(2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.” 15. Section 147 prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, stood as follows: “147. Income escaping assessment. If (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year).Explanation 1.For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :(a) Where income chargeable to tax has been underassessed ; or(b) where such income has been assessed at too low rate ; or(c) where such income has been made the subject of excessive relief under this Act or under the Indian Income-tax Act, 1922 (11 of 1922); or(d) where excessive loss or depreciation allowance has been computed.Explanation 2.Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of this section.” 16. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word ‘reason’ in the phrase ‘reason to believe’ would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991 (191) ITR 662 ], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is ‘reason to believe’, but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)] ; Raymond Woollen Mills Ltd. v. ITO [ 1999 (236) ITR 34 (SC)] .17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.18. So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued.19. Inevitable conclusion is that High Court has wrongly applied Adani’s case (supra) which has no application to the case on the facts in view of the conceptual difference between Section 143(1) and Section 143(3) of the Act.20. Learned counsel for the respondent submitted that other points are available to be raised.
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assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under(2) of section 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under thatThe Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so.Section 147 prior to its substitution by the Direct Tax Laws (Amendment) Act, 1987, stood asIncome escaping assessment. If (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or(b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year).Explanation 1.For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :(a) Where income chargeable to tax has been underassessed ; or(b) where such income has been assessed at too low rate ; or(c) where such income has been made the subject of excessive relief under this Act or under the IndianAct, 1922 (11 of 1922); or(d) where excessive loss or depreciation allowance has been computed.Explanation 2.Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of this section.Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The wordin the phrase ‘reason towould mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers. As observed by the Delhi High Court in Central Provinces Manganese Ore Co. Ltd. v. ITO [1991 (191) ITR 662 ], for initiation of action under section 147(a) (as the provision stood at the relevant time) fulfillment of the two requisite conditions in that regard is essential. At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is ‘reason tobut not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)] ; Raymond Woollen Mills Ltd. v. ITO [ 1999 (236) ITR 34 (SC)] .17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.18. So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued.19. Inevitable conclusion is that High Court has wrongly appliedcase (supra) which has no application to the case on the facts in view of the conceptual difference between Section 143(1) and Section 143(3) of the Act.20. Learned counsel for the respondent submitted that other points are available to be raised.
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Income Tax Officer, A-Ward, Indore Vs. Gwalior Rayon Silk Manufacturing (Weaving) Company Limited | fixed by the Finance Act under sub-section (2) of section 220 from time to time. We are fortified in this view by a decision of this court in Esthuri Aswathiah v. Commissioner of Income-tax where this court observed thus:"The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate."6. As we have already pointed out subsection (3) of section 220 of the Act does not empower the Income-tax Officer to enter into any indefeasible settlement with the assessee or to clothe the Income-tax Officer with any such power so as to vary the statutory inhibition contained in sub-section (2). Any order which is passed under subsection (3) would be subject to the rate of interest mentioned in sub-section (2) and as soon as the rate mentioned in sub-section (2) is varied or enhanced by the legislature it would have to be read into sub-section (2) from the date of the amendment and any order passed under sub-section (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under sub-section (3) being prejudicial to sub-section (2) becomes illegal and invalid and the Income-tax Officer exceeds the limits of his jurisdiction in passing such an orderIn the instant case the Finance Act of 1965 became effective from April 1, 1965, and the Income-tax Officer in his letter dated January 10, 1966, to the assessee had merely given effect to the legal provisions of the Finance Act by insisting that in view of the variation in the rate of interest under sub-section (2) of section 220 the assessee would have to pay interest at the rate of 6% per annum only from April 1, 1965. There was absolutely no question of the Finance Act operating retrospectively, nor was there any question of the Finance Act taking away a vested right which had accrued to the assessee because we have already held that the order of the Income-tax Officer under sub-section (3) of section 220 does not amount to any final settlement or agreement.7. There is yet another view of the matter. In the present case the assessee himself wanted extension of time for being allowed to pay the arrears by instalments. The assessee could be permitted to seek this indulgence under sub-section (3) of section 220 only within the four corners of the law and not outside the same. The moment the Finance Act, 1965, came into operation and the rate of interest in sub-section (2) of section 220 was increased from 4% to 6% per annum, any order passed by the Income-tax Officer would automatically operate in accordance with the Finance Act with effect from April 1, 1965. This is what has happened in the present case. Thus, it is manifest that the Income-tax Officer could not have passed any order against the statutory provisions of sub-section (2) of section 220 either with or without the consent of the assessee. Even the order of the Income-tax Officer dated January 16, 1965, accepting the offer of the assessee to pay interest at the rate of 5% per annum was legally invalid, because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief, therefore, which the assessee could get is that it was liable to pay interest at the rate of 4% and not 5% per annum for the period January to March, 1965. But from April 1, 1965, it was bound to pay interest at the rate of 6% per annum as found by the Income-tax OfficerReliance was placed by Mr. G. C. Sharma appearing for the revenue on a decision of the Orissa High Court in Biswanath Ghosh v. Income-tax Officer where a Division Bench of that court observed as follows:" As we find, the Income-tax Officer has charged interest at 6 per cent. until the provision was amended to enhance the rate of interest at 9 per cent. In fact, in the counter-affidavit given by the Income-tax Officer in O. J. C. No. 195 of 1972 that position has been clarified. Mr. Pasayat for the petitioner claims that the rate of interest must be only at 6 per cent. in view of the fact that default in this case had occurred prior to the amendment. It is only here that he relies upon the decision of the Madhya Pradesh High Court in Gwalior Rayon Silk Manufacturing (Weaving) Co. v. Income-tax Officer. That was a case in respect of penalty under section 220(2) of the Act and the court took the view that the rate of interest as provided on the date when default occurred would apply to the facts of the case. We do not agree with the view expressed in the said decision. It is true that Central Act 27 of 1967 has no retrospective effect, but in respect of continuing default after the amendment, in our view, the rate of interest as provided thereunder would apply."8. The Orissa High Court expressly dissented from the view taken by the Madhya Pradesh High Court in the present judgment under appeal and we find ourselves in complete agreement with the view taken by the Orissa High Court.9. We have already pointed out that the Madhya Pradesh High Court did not at all go into the question which really arose in this case with respect to the payment of interest at the rate of 6 per cent. in accordance with the Finance Act, 1965.10. | 1[ds]Thus, it would appear that the High Court actually decided the case on a point which was not raised by the respondent in its petition but after making out a new case made out at the time of arguments. and without giving any opportunity to the revenue to rebut the same. The High Court has written a detailed judgment regarding the time as to when the liability of the assessee where a notice of demand under section 156 of the Act is issued would arise. It is, however, not necessary for us to consider the reasons given by the High Court in detail, because in the view that we take we find that the basis on which the High Court has decided this case is wholly irrelevant and is not at all germane to the issue that was involved. It was not a case of a notice of demand under section 156 of the Act simpliciter, but the admitted position was that in view of the decision of the Supreme Court the respondent was in arrears of tax and had to pay heavy amounts of over Rs. 6.6 crores. The respondent voluntarily paid the amount of Rs. 3 crores and requested the Income-tax Officer to allow it to pay the balance in instalments and persuaded the Income-tax Officer to accept the request even by agreeing to pay a higher rate of interest of 5% than the rate prescribed under section 220(2) of the Act. The liability to pay the arrears was never disputed and the only dispute between the parties was as to the rate of interest that was payableSectionthese circumstances, therefore, the conditions precedent to the application of sub-section (2) of section 220 of the Act were undoubtedly fulfilled in this case. It would be seen that before the assessee entered into correspondence with the revenue, the rate of interest prescribed under sub-section (2) of section 220 was only four per cent. and yet the assessee offered to pay a higher rate, namely, 5% per annum, if he was allowed to pay the arrears in instalments. This request of the assessee was accepted by the Income-tax Officer on January 16, 1965, when there was no amendment in the provisions contained in section 220(2) of the Act and the order passed by the Income-tax Officer must be construed as one made under sub-section (3) of section 220 of the ActIt was suggested before the High Court that the order of the Income-tax Officer amounted to an irrevocable agreement which could not be varied merely because the rate of interest contained in sub-section (2) of section 220 of the Act wasfind ourselves in complete agreement with this view. Section 220(3) merely empowers the Income-tax Officer to extend the time for payment or allow payment by instalments on such conditions as he may impose. In the instant case the Income-tax Officer merely exercised his powers under sub-section (3) of section 220 by imposing the condition that the assessee shall be allowed to pay the arrears by instalments if he paid interest at the rate of 5% per annum offered by him. What is important, however, is that sub-section (3) is not independent of sub-section (2) but is inter-connected with it. The words " without prejudice to the provisions contained in sub-section (2) " clearly show that any order passed by the Income-tax Officer under sub-section (3) must neither be inconsistent with nor prejudicial to the provisions contained in sub-section (2). In other words, the position is that although sub-section (3) is an independent provision the power under this sub-section has to be exercised subject to the terms and conditions mentioned in sub-section (2) so far as they apply to the facts mentioned in sub-section (3). Thus, if sub-section (2) of section 220 provided that the rate of interest chargeable would be four per cent. per annum any order passed under sub-section (3) could not vary that rate, and if it did, then the order to that extent would standare, however, unable to accept this somewhat broad proposition of law. Sub-sections (2) and (3) form part of the same section, namely section 220, and are, therefore, closely allied to each other. It is no doubt true that the two sub-sections deal with separate issues but the non-obstante clause of sub-section (3) clearly restricts the order passed under sub-section (3) to the conditions mentioned in sub-section (2) of section 220 of the ActFurthermore, it is the Finance Act which fixes the rate of interest payable under sub-section (2) of section 220 and it is common knowledge that every year the Finance Act makes important amendments in the rates payable under the various provisions of the Income-tax Act. In these circumstance, therefore, it is not within the competence of the Income-tax Officer to vary the rate of interest fixed by the Finance Act under sub-section (2) of section 220 from time towe have already pointed out subsection (3) of section 220 of the Act does not empower the Income-tax Officer to enter into any indefeasible settlement with the assessee or to clothe the Income-tax Officer with any such power so as to vary the statutory inhibition contained in sub-section (2). Any order which is passed under subsection (3) would be subject to the rate of interest mentioned in sub-section (2) and as soon as the rate mentioned in sub-section (2) is varied or enhanced by the legislature it would have to be read into sub-section (2) from the date of the amendment and any order passed under sub-section (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under sub-section (3) being prejudicial to sub-section (2) becomes illegal and invalid and the Income-tax Officer exceeds the limits of his jurisdiction in passing such an orderIn the instant case the Finance Act of 1965 became effective from April 1, 1965, and the Income-tax Officer in his letter dated January 10, 1966, to the assessee had merely given effect to the legal provisions of the Finance Act by insisting that in view of the variation in the rate of interest under sub-section (2) of section 220 the assessee would have to pay interest at the rate of 6% per annum only from April 1, 1965. There was absolutely no question of the Finance Act operating retrospectively, nor was there any question of the Finance Act taking away a vested right which had accrued to the assessee because we have already held that the order of the Income-tax Officer under sub-section (3) of section 220 does not amount to any final settlement oris yet another view of the matter. In the present case the assessee himself wanted extension of time for being allowed to pay the arrears by instalments. The assessee could be permitted to seek this indulgence under sub-section (3) of section 220 only within the four corners of the law and not outside the same. The momentthe Finance Act, 1965, came into operation and the rate of interest in sub-section (2) of section 220 was increased from 4% to 6% per annum, any order passed by the Income-tax Officer would automatically operate in accordance with the Finance Act with effect from April 1, 1965. This is what has happened in the present case. Thus, it is manifest that the Income-tax Officer could not have passed any order against the statutory provisions of sub-section (2) of section 220 either with or without the consent of the assessee. Even the order of the Income-tax Officer dated January 16, 1965, accepting the offer of the assessee to pay interest at the rate of 5% per annum was legally invalid, because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief, therefore, which the assessee could get is that it was liable to pay interest at the rate of 4% and not 5% per annum for the period January to March, 1965. But from April 1, 1965, it was bound to pay interest at the rate of 6% per annum as found by the Income-taxOrissa High Court expressly dissented from the view taken by the Madhya Pradesh High Court in the present judgment under appeal and we find ourselves in complete agreement with the view taken by the Orissa Highhave already pointed out that the Madhya Pradesh High Court did not at all go into the question which really arose in this case with respect to the payment of interest at the rate of 6 per cent. in accordance withthe Finance Act, 1965. | 1 | 3,372 | 1,619 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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fixed by the Finance Act under sub-section (2) of section 220 from time to time. We are fortified in this view by a decision of this court in Esthuri Aswathiah v. Commissioner of Income-tax where this court observed thus:"The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate."6. As we have already pointed out subsection (3) of section 220 of the Act does not empower the Income-tax Officer to enter into any indefeasible settlement with the assessee or to clothe the Income-tax Officer with any such power so as to vary the statutory inhibition contained in sub-section (2). Any order which is passed under subsection (3) would be subject to the rate of interest mentioned in sub-section (2) and as soon as the rate mentioned in sub-section (2) is varied or enhanced by the legislature it would have to be read into sub-section (2) from the date of the amendment and any order passed under sub-section (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under sub-section (3) being prejudicial to sub-section (2) becomes illegal and invalid and the Income-tax Officer exceeds the limits of his jurisdiction in passing such an orderIn the instant case the Finance Act of 1965 became effective from April 1, 1965, and the Income-tax Officer in his letter dated January 10, 1966, to the assessee had merely given effect to the legal provisions of the Finance Act by insisting that in view of the variation in the rate of interest under sub-section (2) of section 220 the assessee would have to pay interest at the rate of 6% per annum only from April 1, 1965. There was absolutely no question of the Finance Act operating retrospectively, nor was there any question of the Finance Act taking away a vested right which had accrued to the assessee because we have already held that the order of the Income-tax Officer under sub-section (3) of section 220 does not amount to any final settlement or agreement.7. There is yet another view of the matter. In the present case the assessee himself wanted extension of time for being allowed to pay the arrears by instalments. The assessee could be permitted to seek this indulgence under sub-section (3) of section 220 only within the four corners of the law and not outside the same. The moment the Finance Act, 1965, came into operation and the rate of interest in sub-section (2) of section 220 was increased from 4% to 6% per annum, any order passed by the Income-tax Officer would automatically operate in accordance with the Finance Act with effect from April 1, 1965. This is what has happened in the present case. Thus, it is manifest that the Income-tax Officer could not have passed any order against the statutory provisions of sub-section (2) of section 220 either with or without the consent of the assessee. Even the order of the Income-tax Officer dated January 16, 1965, accepting the offer of the assessee to pay interest at the rate of 5% per annum was legally invalid, because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief, therefore, which the assessee could get is that it was liable to pay interest at the rate of 4% and not 5% per annum for the period January to March, 1965. But from April 1, 1965, it was bound to pay interest at the rate of 6% per annum as found by the Income-tax OfficerReliance was placed by Mr. G. C. Sharma appearing for the revenue on a decision of the Orissa High Court in Biswanath Ghosh v. Income-tax Officer where a Division Bench of that court observed as follows:" As we find, the Income-tax Officer has charged interest at 6 per cent. until the provision was amended to enhance the rate of interest at 9 per cent. In fact, in the counter-affidavit given by the Income-tax Officer in O. J. C. No. 195 of 1972 that position has been clarified. Mr. Pasayat for the petitioner claims that the rate of interest must be only at 6 per cent. in view of the fact that default in this case had occurred prior to the amendment. It is only here that he relies upon the decision of the Madhya Pradesh High Court in Gwalior Rayon Silk Manufacturing (Weaving) Co. v. Income-tax Officer. That was a case in respect of penalty under section 220(2) of the Act and the court took the view that the rate of interest as provided on the date when default occurred would apply to the facts of the case. We do not agree with the view expressed in the said decision. It is true that Central Act 27 of 1967 has no retrospective effect, but in respect of continuing default after the amendment, in our view, the rate of interest as provided thereunder would apply."8. The Orissa High Court expressly dissented from the view taken by the Madhya Pradesh High Court in the present judgment under appeal and we find ourselves in complete agreement with the view taken by the Orissa High Court.9. We have already pointed out that the Madhya Pradesh High Court did not at all go into the question which really arose in this case with respect to the payment of interest at the rate of 6 per cent. in accordance with the Finance Act, 1965.10.
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ourselves in complete agreement with this view. Section 220(3) merely empowers the Income-tax Officer to extend the time for payment or allow payment by instalments on such conditions as he may impose. In the instant case the Income-tax Officer merely exercised his powers under sub-section (3) of section 220 by imposing the condition that the assessee shall be allowed to pay the arrears by instalments if he paid interest at the rate of 5% per annum offered by him. What is important, however, is that sub-section (3) is not independent of sub-section (2) but is inter-connected with it. The words " without prejudice to the provisions contained in sub-section (2) " clearly show that any order passed by the Income-tax Officer under sub-section (3) must neither be inconsistent with nor prejudicial to the provisions contained in sub-section (2). In other words, the position is that although sub-section (3) is an independent provision the power under this sub-section has to be exercised subject to the terms and conditions mentioned in sub-section (2) so far as they apply to the facts mentioned in sub-section (3). Thus, if sub-section (2) of section 220 provided that the rate of interest chargeable would be four per cent. per annum any order passed under sub-section (3) could not vary that rate, and if it did, then the order to that extent would standare, however, unable to accept this somewhat broad proposition of law. Sub-sections (2) and (3) form part of the same section, namely section 220, and are, therefore, closely allied to each other. It is no doubt true that the two sub-sections deal with separate issues but the non-obstante clause of sub-section (3) clearly restricts the order passed under sub-section (3) to the conditions mentioned in sub-section (2) of section 220 of the ActFurthermore, it is the Finance Act which fixes the rate of interest payable under sub-section (2) of section 220 and it is common knowledge that every year the Finance Act makes important amendments in the rates payable under the various provisions of the Income-tax Act. In these circumstance, therefore, it is not within the competence of the Income-tax Officer to vary the rate of interest fixed by the Finance Act under sub-section (2) of section 220 from time towe have already pointed out subsection (3) of section 220 of the Act does not empower the Income-tax Officer to enter into any indefeasible settlement with the assessee or to clothe the Income-tax Officer with any such power so as to vary the statutory inhibition contained in sub-section (2). Any order which is passed under subsection (3) would be subject to the rate of interest mentioned in sub-section (2) and as soon as the rate mentioned in sub-section (2) is varied or enhanced by the legislature it would have to be read into sub-section (2) from the date of the amendment and any order passed under sub-section (3) would be subject to the rate so fixed. In fact if this is not the position, then the order passed under sub-section (3) being prejudicial to sub-section (2) becomes illegal and invalid and the Income-tax Officer exceeds the limits of his jurisdiction in passing such an orderIn the instant case the Finance Act of 1965 became effective from April 1, 1965, and the Income-tax Officer in his letter dated January 10, 1966, to the assessee had merely given effect to the legal provisions of the Finance Act by insisting that in view of the variation in the rate of interest under sub-section (2) of section 220 the assessee would have to pay interest at the rate of 6% per annum only from April 1, 1965. There was absolutely no question of the Finance Act operating retrospectively, nor was there any question of the Finance Act taking away a vested right which had accrued to the assessee because we have already held that the order of the Income-tax Officer under sub-section (3) of section 220 does not amount to any final settlement oris yet another view of the matter. In the present case the assessee himself wanted extension of time for being allowed to pay the arrears by instalments. The assessee could be permitted to seek this indulgence under sub-section (3) of section 220 only within the four corners of the law and not outside the same. The momentthe Finance Act, 1965, came into operation and the rate of interest in sub-section (2) of section 220 was increased from 4% to 6% per annum, any order passed by the Income-tax Officer would automatically operate in accordance with the Finance Act with effect from April 1, 1965. This is what has happened in the present case. Thus, it is manifest that the Income-tax Officer could not have passed any order against the statutory provisions of sub-section (2) of section 220 either with or without the consent of the assessee. Even the order of the Income-tax Officer dated January 16, 1965, accepting the offer of the assessee to pay interest at the rate of 5% per annum was legally invalid, because if the rate of interest fixed by the statute was 4% the parties could not be allowed to contract out of the statute. The only relief, therefore, which the assessee could get is that it was liable to pay interest at the rate of 4% and not 5% per annum for the period January to March, 1965. But from April 1, 1965, it was bound to pay interest at the rate of 6% per annum as found by the Income-taxOrissa High Court expressly dissented from the view taken by the Madhya Pradesh High Court in the present judgment under appeal and we find ourselves in complete agreement with the view taken by the Orissa Highhave already pointed out that the Madhya Pradesh High Court did not at all go into the question which really arose in this case with respect to the payment of interest at the rate of 6 per cent. in accordance withthe Finance Act, 1965.
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The Management of Swatantra Bharat Mills, New Delhi Vs. Ratan Lal | the quality, number of yarn, weight, etc., of the yearn packed. The respondent had been working for a long time past and discharging his duties in the manner indicated.3. It appears that the respondent became slack and negligent in his duties in June 1957 with the inevitable result that production went down. A charge-sheet was then served on him on June 24, 1957, again on July 16, 1957 and August 5, 1957, for acts of misconduct under the Standing Orders; but before any action could be taken against him the respondent tendered an apology on December 4, 1957, in which he admitted his fault and promised that he would do his best in future to deliver normal number of 10 lbs. bundles as he used to do and to do other normal duties so that the production may not be affected. Thereupon the appellant warned him and took no further action against him.4. About December 28, 1957, the respondent again became slack and negligent. He was then served with a warning notice. At this stage the baling-press men had complained against the negligence of the respondent because his negligence affected their earnings. On January 2, 1958, a report was received from the baling-press men that their output was considerably going down on account of the negligence of the respondent whereupon another warning was served on the respondent on January 2, 1958. This warning however, had no effect and the respondents negligence continued. The baling-press men again represented to the appellant against the conduct of the respondent. This time a charge-sheet was served on the respondent and an enquiry was held. The respondent was given an opportunity to cross-examine the witnesses who gave evidence against him and his explanation was also taken. At the end of the enquiry the enquiry officer found that the changes framed against the respondent had been proved. On receiving the said report, the appellant terminated the respondents services by an order dated February 28, 1958, and then the present application was made to the industrial tribunal under S. 33(2)(b).5. The industrial tribunal rejected the application on the ground that in the various circumstances set out by it in its award it was of opinion that the charges against the workman "cannot be held to have been satisfactorily established". It is true that the tribunal began its award with the observation that it had to decide whether a prima facie case had been made out by the appellant against the workman. This approach is no doubt proper because under S. 33 (2)(b) the jurisdiction of the tribunal is limited to the enquiry as to whether a prima facie case has been made out by the employer against the employee or not. Having stated the limits of its jurisdiction correctly in this manner the tribunal, however, proceeded to consider the merits of the rival contentions as though it was trying the case itself. It was not satisfied that the respondents job included the Mazdoors work of carrying bales. It was also inclined to hold that the work-load of the respondent had increased because there was a certain amount of increase in distance which had to be traversed by the respondent before he could deliver the bundles to the baling-press. It also observed that there was no satisfactory evidence defining the duties of the respondent, and so, it came to the conclusion that the appellants case against the respondent had not been satisfactorily established. One has merely to look at the findings recorded by the tribunal to realise that it has exceeded its jurisdiction under S. 33(2)(b). It may be pointed out in fairness to the appellant that the enquiry officers report is a well considered document wherein he has examined the evidence adduced before him and has given elaborate reasons in support of his final conclusion. The conduct of the appellant to which we have already referred unmistakably supports the final conclusion of the enquiry officer. The apology given by the respondent on December 4, 1957, has naturally been considered by the enquiry officer and the rest of the evidence taken into account before he rejected the respondents plea. In such a case we do not see how it was open to the industrial tribunal to sit in appeal over the findings of the enquiry officer and to reappreciate the evidence for itself. That is not the scope of the enquiry under S. 33(2)(b).6. It appears that before the tribunal it was urged on behalf of the respondent that he was not allowed the help of Mr. Braham Dutt or any other worker attached to the mill. The grievance made by the respondent in his application before the tribunal was that the enquiry officer did not allow Mr. Braham Dutt to be with him and thereby deprived him of the opportunity of having a witness of his own to bear out the irregularities committed by the management in its proceedings. In other words he wanted Mr. Braham Dutt to be present in the enquiry not with a view to assist him but with a view to watch what according to the respondent were the irregular features of the enquiry. Apart from the fact that the record does not show any irregularity connected with the enquiry we do not see how the respondent can make a grievance of the fact that Mr. Braham Dutt was not allowed to be present at the enquiry and urge that the enquiry itself is thereby vitiated. The tribunal also was not inclined to go that far; it has merely observed that to some extent the respondent has a grievance in the matter of enquiry. The main question which the tribunal had to consider was whether this grievance made the enquiry improper or illegal. In our opinion, the answer to this point must definitely be against the respondent. Thus there is no doubt that in rejecting the application of the appellant the tribunal has exceeded its jurisdiction and that makes the award wholly unsustainable. | 0[ds]5. The industrial tribunal rejected the application on the ground that in the various circumstances set out by it in its award it was of opinion that the charges against the workman "cannot be held to have been satisfactorily established".It is true that the tribunal began its award with the observation that it had to decide whether a prima facie case had been made out by the appellant against the workman. This approach is no doubt proper because under S. 33 (2)(b) the jurisdiction of the tribunal is limited to the enquiry as to whether a prima facie case has been made out by the employer against the employee or not. Having stated the limits of its jurisdiction correctly in this manner the tribunal, however, proceeded to consider the merits of the rival contentions as though it was trying the case itself. It was not satisfied that the respondents job included the Mazdoors work of carrying bales. It was also inclined to hold that theof the respondent had increased because there was a certain amount of increase in distance which had to be traversed by the respondent before he could deliver the bundles to theIt also observed that there was no satisfactory evidence defining the duties of the respondent, and so, it came to the conclusion that the appellants case against the respondent had not been satisfactorily established. One has merely to look at the findings recorded by the tribunal to realise that it has exceeded its jurisdiction under S. 33(2)(b). It may be pointed out in fairness to the appellant that the enquiry officers report is a well considered document wherein he has examined the evidence adduced before him and has given elaborate reasons in support of his final conclusion. The conduct of the appellant to which we have already referred unmistakably supports the final conclusion of the enquiry officer. The apology given by the respondent on December 4, 1957, has naturally been considered by the enquiry officer and the rest of the evidence taken into account before he rejected the respondents plea. In such a case we do not see how it was open to the industrial tribunal to sit in appeal over the findings of the enquiry officer and to reappreciate the evidence for itself. That is not the scope of the enquiry under S. 33(2)(b).6. It appears that before the tribunal it was urged on behalf of the respondent that he was not allowed the help of Mr. Braham Dutt or any other worker attached to the mill. The grievance made by the respondent in his application before the tribunal was that the enquiry officer did not allow Mr. Braham Dutt to be with him and thereby deprived him of the opportunity of having a witness of his own to bear out the irregularities committed by the management in its proceedings. In other words he wanted Mr. Braham Dutt to be present in the enquiry not with a view to assist him but with a view to watch what according to the respondent were the irregular features of the enquiry. Apart from the fact that the record does not show any irregularity connected with the enquiry we do not see how the respondent can make a grievance of the fact that Mr. Braham Dutt was not allowed to be present at the enquiry and urge that the enquiry itself is thereby vitiated. The tribunal also was not inclined to go that far; it has merely observed that to some extent the respondent has a grievance in the matter of enquiry. The main question which the tribunal had to consider was whether this grievance made the enquiry improper or illegal. In our opinion, the answer to this point must definitely be against the respondent. Thus there is no doubt that in rejecting the application of the appellant the tribunal has exceeded its jurisdiction and that makes the award wholly unsustainable. | 0 | 1,335 | 707 | ### Instruction:
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the quality, number of yarn, weight, etc., of the yearn packed. The respondent had been working for a long time past and discharging his duties in the manner indicated.3. It appears that the respondent became slack and negligent in his duties in June 1957 with the inevitable result that production went down. A charge-sheet was then served on him on June 24, 1957, again on July 16, 1957 and August 5, 1957, for acts of misconduct under the Standing Orders; but before any action could be taken against him the respondent tendered an apology on December 4, 1957, in which he admitted his fault and promised that he would do his best in future to deliver normal number of 10 lbs. bundles as he used to do and to do other normal duties so that the production may not be affected. Thereupon the appellant warned him and took no further action against him.4. About December 28, 1957, the respondent again became slack and negligent. He was then served with a warning notice. At this stage the baling-press men had complained against the negligence of the respondent because his negligence affected their earnings. On January 2, 1958, a report was received from the baling-press men that their output was considerably going down on account of the negligence of the respondent whereupon another warning was served on the respondent on January 2, 1958. This warning however, had no effect and the respondents negligence continued. The baling-press men again represented to the appellant against the conduct of the respondent. This time a charge-sheet was served on the respondent and an enquiry was held. The respondent was given an opportunity to cross-examine the witnesses who gave evidence against him and his explanation was also taken. At the end of the enquiry the enquiry officer found that the changes framed against the respondent had been proved. On receiving the said report, the appellant terminated the respondents services by an order dated February 28, 1958, and then the present application was made to the industrial tribunal under S. 33(2)(b).5. The industrial tribunal rejected the application on the ground that in the various circumstances set out by it in its award it was of opinion that the charges against the workman "cannot be held to have been satisfactorily established". It is true that the tribunal began its award with the observation that it had to decide whether a prima facie case had been made out by the appellant against the workman. This approach is no doubt proper because under S. 33 (2)(b) the jurisdiction of the tribunal is limited to the enquiry as to whether a prima facie case has been made out by the employer against the employee or not. Having stated the limits of its jurisdiction correctly in this manner the tribunal, however, proceeded to consider the merits of the rival contentions as though it was trying the case itself. It was not satisfied that the respondents job included the Mazdoors work of carrying bales. It was also inclined to hold that the work-load of the respondent had increased because there was a certain amount of increase in distance which had to be traversed by the respondent before he could deliver the bundles to the baling-press. It also observed that there was no satisfactory evidence defining the duties of the respondent, and so, it came to the conclusion that the appellants case against the respondent had not been satisfactorily established. One has merely to look at the findings recorded by the tribunal to realise that it has exceeded its jurisdiction under S. 33(2)(b). It may be pointed out in fairness to the appellant that the enquiry officers report is a well considered document wherein he has examined the evidence adduced before him and has given elaborate reasons in support of his final conclusion. The conduct of the appellant to which we have already referred unmistakably supports the final conclusion of the enquiry officer. The apology given by the respondent on December 4, 1957, has naturally been considered by the enquiry officer and the rest of the evidence taken into account before he rejected the respondents plea. In such a case we do not see how it was open to the industrial tribunal to sit in appeal over the findings of the enquiry officer and to reappreciate the evidence for itself. That is not the scope of the enquiry under S. 33(2)(b).6. It appears that before the tribunal it was urged on behalf of the respondent that he was not allowed the help of Mr. Braham Dutt or any other worker attached to the mill. The grievance made by the respondent in his application before the tribunal was that the enquiry officer did not allow Mr. Braham Dutt to be with him and thereby deprived him of the opportunity of having a witness of his own to bear out the irregularities committed by the management in its proceedings. In other words he wanted Mr. Braham Dutt to be present in the enquiry not with a view to assist him but with a view to watch what according to the respondent were the irregular features of the enquiry. Apart from the fact that the record does not show any irregularity connected with the enquiry we do not see how the respondent can make a grievance of the fact that Mr. Braham Dutt was not allowed to be present at the enquiry and urge that the enquiry itself is thereby vitiated. The tribunal also was not inclined to go that far; it has merely observed that to some extent the respondent has a grievance in the matter of enquiry. The main question which the tribunal had to consider was whether this grievance made the enquiry improper or illegal. In our opinion, the answer to this point must definitely be against the respondent. Thus there is no doubt that in rejecting the application of the appellant the tribunal has exceeded its jurisdiction and that makes the award wholly unsustainable.
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5. The industrial tribunal rejected the application on the ground that in the various circumstances set out by it in its award it was of opinion that the charges against the workman "cannot be held to have been satisfactorily established".It is true that the tribunal began its award with the observation that it had to decide whether a prima facie case had been made out by the appellant against the workman. This approach is no doubt proper because under S. 33 (2)(b) the jurisdiction of the tribunal is limited to the enquiry as to whether a prima facie case has been made out by the employer against the employee or not. Having stated the limits of its jurisdiction correctly in this manner the tribunal, however, proceeded to consider the merits of the rival contentions as though it was trying the case itself. It was not satisfied that the respondents job included the Mazdoors work of carrying bales. It was also inclined to hold that theof the respondent had increased because there was a certain amount of increase in distance which had to be traversed by the respondent before he could deliver the bundles to theIt also observed that there was no satisfactory evidence defining the duties of the respondent, and so, it came to the conclusion that the appellants case against the respondent had not been satisfactorily established. One has merely to look at the findings recorded by the tribunal to realise that it has exceeded its jurisdiction under S. 33(2)(b). It may be pointed out in fairness to the appellant that the enquiry officers report is a well considered document wherein he has examined the evidence adduced before him and has given elaborate reasons in support of his final conclusion. The conduct of the appellant to which we have already referred unmistakably supports the final conclusion of the enquiry officer. The apology given by the respondent on December 4, 1957, has naturally been considered by the enquiry officer and the rest of the evidence taken into account before he rejected the respondents plea. In such a case we do not see how it was open to the industrial tribunal to sit in appeal over the findings of the enquiry officer and to reappreciate the evidence for itself. That is not the scope of the enquiry under S. 33(2)(b).6. It appears that before the tribunal it was urged on behalf of the respondent that he was not allowed the help of Mr. Braham Dutt or any other worker attached to the mill. The grievance made by the respondent in his application before the tribunal was that the enquiry officer did not allow Mr. Braham Dutt to be with him and thereby deprived him of the opportunity of having a witness of his own to bear out the irregularities committed by the management in its proceedings. In other words he wanted Mr. Braham Dutt to be present in the enquiry not with a view to assist him but with a view to watch what according to the respondent were the irregular features of the enquiry. Apart from the fact that the record does not show any irregularity connected with the enquiry we do not see how the respondent can make a grievance of the fact that Mr. Braham Dutt was not allowed to be present at the enquiry and urge that the enquiry itself is thereby vitiated. The tribunal also was not inclined to go that far; it has merely observed that to some extent the respondent has a grievance in the matter of enquiry. The main question which the tribunal had to consider was whether this grievance made the enquiry improper or illegal. In our opinion, the answer to this point must definitely be against the respondent. Thus there is no doubt that in rejecting the application of the appellant the tribunal has exceeded its jurisdiction and that makes the award wholly unsustainable.
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Thota China Subba Rao and Nine Others Vs. Mattapalli Raju and Twelve Others | the trial of these issues was not barred under section 11 of the Civil Procedure Code. It follows therefore, that if the right of redemption is not extinguished, provisions like O. 9 r. 9 or O. 23 r. 1 will not debar that mortgagor from filing a second suit because, as in a partition suit, the cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one. 13. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which this suit filed in 1929, had ended. They did not express any opinion on the two alternative contentions urged before us on behalf of the respondents. The first contention was that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidence by the two documents of 7th November, 1932. It was contended that this position was covered by the proviso to section 60 of the transfer of property Act. We are unable to accept this argument because, in our opinion, on a true construction of the two documents, the right of redemption of the mortgagor was not extinguished thereby. The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is, however, no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100/- mentioned therein. This was only an agreement to convey the lands after three months, and, if at all, the question of extinction of the equity of redemption could arise on the conveyance being excepted but not before. The evidence on record shows that soon after the dismissal of the mortgagors 1929 suit, the mortgages repudiated the agreement and thereafter the parties adopted from time to time such attitude in respect of the said agreement as it suited them for the moment. The trial judge has held that the two documents were executed, but there was no bona fide compromise at all. In the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished.The second argument advanced on behalf of the respondents in this connection was that although there was no sale deed by the mortgagor as provided under his writing of 7th November, the Court should specifically enforce it under section 53-A of the Transfer of Property Act. The words of section 53-A negative this contention completely. The relevant portion of the section is as follows :- S. 53-A Where any person contracts to transfer for consideration any immovable property by writing signed by hi or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract........ and the transferee has performed or is willing to perform his part of the contract......... 14. The section clearly requires that the transferee (the mortgagees) had either to be put into possession or had to continue in possession in part performance of the agreement, which was sought to be enforced under the section. It is admitted that the mortgagees had never been in possession. It was argued on their behalf that constructive possession was sufficient for the section. Even so, in this case the mortgagees had not even constructive possession of the lands. Under the mortgages of 1915 and 1916 they were entitled to receive possession of the lands from the lessees on the termination of the previous cowle at the end of F. 1334. Before the end of that period they were entitled to receive rent from the lessees. The mortgagor had, however, given notice to the lessees not to pay rent to the mortgagees and in fact he mortgagor had recovered the rents from the lessees. The mortgages claimed that they were entitled to possession but they were never in constructive possession, because the lessees did not pay them rent. The suit filed by the mortgagees in 1926 was to recover from the lessees possession and rent for the unexpired period of the lease and for mesne profits thereafter. It is, therefore, clear that the mortgagees as such were never in actual or constructive possession of the suit lands. It is still more clear therefore, that they were never put in possession or allowed to continue in possession, actual or constructive, in pursuance of the agreement of the 7th November, 1932. The section therefore, has no application. The result is that the conclusion of the Madras High Court that the mortgagors right of redemption had been extinguished or was not enforceable cannot be supported.Appeal No. II arises out of the mortgagees suit filed in 1926 to secure possession of the lands and receive payment of rent and mesne profits from the lessees. At a later stage the mortgagor was made a party to the suit. In that suit a decree for possession was passed by the High Court on the footing that the mortgagor was not entitled to redeem. That conclusion of the High Court is now held to be incorrect. The matter will have therefore, to go back to the High Court for its decision on the footing of our conclusion. | 1[ds]Strong reliance was placed on behalf of the mortgagees on the decision of the Privy Council in Thakur Shankar Baksh v. Day Shankar and others (2). There, one Bhoop Singh had mortgaged the property by way of conditional sale. As the lands were entered in the Talukdari sanad in the name of the mortgagee, Bhoop Singh filed a suit to redeem the under proprietary right in the lands only. Healleged that he had paid to the mortgagee Rs. 3, 000/- and was ready and willing to pay the balance but the mortgagee wrongfully refused to allow him to redeem. That suit was dismissed for default of appearance of the plaintiff and the privy Council held that it was dismissed under section 114 of the Code of Civil Procedure of 1859, which corresponds to O. 9 r. 8 of the Civil Procedure Code of 1908. Section 119 of the Civil Procedure Code of 1859, which corresponded to O. 9 r. 9 of the Code of 1908 provided that no second suit would lie on the same cause of action. Bhoop Singhs heirs filed a second suit in 1883 for redemption of the superior proprietary right in the land. It was argued on behalf of the mortgagee that as the mortgagor, after his suit was dismissed, had taken steps for the re-hearing of the suit and failed in his attempts, no second suit for redemption lay. On behalf of the mortgagor it was argued that as the second suit was for the redemption of the superior proprietary rights the cause of action was different and the suit was not barred. The Privy Council rejected this contention. That decision is no applicable to the facts here. The mortgage was in 1853 and the first suit was filed in 1864. At that time the Transfer of Property Act was not even enacted and there were no provisions like section 60 of the Transfer of Property Act applicable to Oudh, where the litigation started and the lands were situated. It was contended on behalf of the mortgagee that as the mortgagor had failed to carry out his covenant to pay according to the mortgage bond, his right to redeem had gone. Some reliance was put on section 6 of Act I of 1869. It was pointed out that the section could not be considered so as to affect retrospectively a decree between the parties existing at the time of the enactment and re-establish relations which by the decree (dismissal of the suit by default) had been held to have ceased. Again, no form of decree in a redemption suit which provided for the extinguishment of the right to redeem if the money was not paid as provided in the decree, appears to be in use at the time. Throughout the judgment there is no reference to the principle now embodied in section 60 of the Transfer of property Act. That decision therefore is no authority against the contention that after the enactment of section 60 of the Transfer of Property Act, as substantive law, the equity of redemption is not extinguished by a dismissal of a redemption suit for default of the plaintiffs appearance or that if the first suit was dropped for any such reason, a second suit for redemption was barred because it was on the same cause of action. The Privy Council rejected the only contention urged before them that as in the earlier suit redemption was claimed of under-proprietary rights and in the later suit of superior proprietary rights, the cause of action was different.The latest decision of the Privy Council on the point is in Raghunath Singh v. Hansraj Kunwar (1). In that case a decree for redemption, made in 1896 in respect of a mortgage by way of conditional sale, provided that if the mortgagor failed to pay the amount mentioned in the decree in accordance with the terms thereof his case will be dismissed. Under section 92 of the Transfer of Property Act, 1882, the decree should have provided that upon default the mortgagor should be absolutely debarred of his right to redeem. No payment of the mortgage money was made. The mortgagee remained in possession but did not apply for an order under section 93 of the Transfer of Property Act debarring the mortgagors right to redeem. In 1924 a fresh suit to redeem the property was brought by the mortgagor. It was held that the decree of 1896, properly construed, did not extinguish the right of redemption and consequently under section 60 of the Transfer of Property Act that right still existed. Before the Board, three contentions were raised. The first was that the second suit, though in form a redemption suit, was in reality an application to enforce an old decree of the 25th September, 1896. A suit could not be maintained for that, because of section 47 of the Code of Civil Procedure, and the execution of the old decree was barred by limitation. The Judicial Committed rejected this contention and observed that if a second suit for redemption was maintainable, the answer to the contention was that the second suit was redemption suit and not an application to enforce the old decree. Section 47 of the Code of Civil procedure cannot therefore defeat the claim to redeem. The second contention was that the decision in the former suit operated as res judicata and section 11 of the Code of Civil Procedure prohibited the courts from trying the second suit. Their Lordships rejected this contention also. They pointed out that the issues decided in the former suit were (i) whether the mortgagors were then entitled to redeem : (ii) and the amount then to be paid if redemption then took place. The issues in the second suit were (i) whether the right to redeem now existed; and (ii) the amount now to be paid if redemption now took place. They observed that if the mortgagors right to redeem was extinguished that was a separate question which may overlap the question of res judicata, but if it was held that the right to redeem was not extinguished there was no ground for saying that the old decree operated as res judicata under section 11 of the Code. The structure of the issues noticed by the Board shows clearly that in each redemption action, the cause of action will be different because the claim will be (I) whether the mortgagor had the right to redeem when he claimed to do so; and (2) what amount was due by him when he made that claim. Both the contentions will be different when advanced at different times. The third contention was that no payment having been made under the old decree the former suit stood dismissed on the 15th November, 1896, with the result that the mortgagors right to redeem because extinguished under section 60 of the Transfer of Property Act. On this question their Lordships noticed that the provisions of the Transfer of Property Act were applicable to that part of India from which the appeal arose. It was impossible to say (as might be said under English law) that the dismissal of a redemption action operated as a foreclosure, unless the justification of that statement was found in the language of the Transfer of Property Act. Their Lordships held that the Transfer of Property Act did not justify such a conclusion. They examined in detail the provisions of section 60 of the Transfer of Property Act which conferred upon the mortgagor the right to redeem at any time after principal money had become payable. That right was limited only by the provision which was in these terms :-Provided that the right conferred by this section has not been extinguished by act of the parties or by order of a court.8. It was pointed out that in that case there was no question of extinguishment of the right to redeem by act of the parties. Therefore, if it had been extinguished, an order of the court had to be produced to that effect. It was noticed that the decree in the first suit suit had departed from the recognised form in which decrees in redemption suits were prescribed to be passed because in default of payment it simply provided that his case will stand dismissed. Their Lordships refused to construe those words as equivalent to debarring the plaintiff from all right to redeem. They observed as follows :- The right to redeem is a right conferred upon the mortgagor by an enactment of which he will only be deprived by means and manner indicated for that purpose and strictly complied with. Their Lordships examined the case cited before them and held that by the order made in that suit the right to redeem had not been extinguished. The decision in Thakur Shankar Bakshs (2), case was not even cited as relevant to the decision of the case.. Recently, in Rajaram Vithal v. Ramchandra Pandu (5), a Full Bench of the Bombay High Court held that the general terms of O. 22 r. 9 of the Code of Civil Procedure which provided that where a suit abated or was dismissed under the order, no fresh suit shall be brought on the same cause of action, cannot override the specific terms of section 60 of the Transfer of Property Act. If was pointed out that the Civil Procedure code dealt with the procedure relating to all suits. There was a special law which dealt with the rights of mortgagors and mortgagees and that substantive law was to be found in the Transfer of Property Act. That substantive law provided only two ways in which the right of redemption can be extinguished, and they were : (i) by act of the parties, (ii) by decree of the court. Disagreeing with the view of the Madras High Court in the present appeal under consideration they held that the provisions of O. 22 r. 9 did not extinguish the right of redemption and a second suit for redemption was therefore permissible.In our opinion, the view of the Madras High Court is incorrect. We prefer the view taken by the Bombay High Court on this point. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. As held by the Privy Council in Raghunath Singhs (1) case, the right of redemption can be extinguished as provided in section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. The Board expressly held that if the appellants failed to establish that the old decree extinguished the right to redeem, there was no ground for saying that the old decree operated as res judicata and the courts were prevented from trying the second suit under section 11 of the Code of Civil Procedure. They therefore held that the right to redeem was not extinguished by the procedural provisions contained in the Civil Procedure Code.In our opinion the High Court did not properly appreciate the effect of the termination of the former suit of 1929. When that suit reached hearing on the 9th November, 1932, the Subordinate Judge wrote a judgment in which, after reciting that the suit in forma pauperis to redeem the three mortgages was filed and four issues were raised, he stated as follows :- the plaintiff has been examined and a number of documents have been marked and suit stands posted to this day for arguments. But to-day plaintiffs vakil reports that he got intimation not to proceed with the case and filed the letter which he got from his client. This is not a case of withdrawal of a suit but an abandonment of it. Suit is dismissed with costs. Plaintiff shall pay the court fees to Government. The letter from the mortgagor to the vakil is not on the record, but the terms thereof are not material as they will contain only the instructions of a lays client to his pleader. The record shows that the court was informed that the plaintiff was not proceedings with the case. The court interpreted it as a case not of withdrawal but of abandonment and dismissed the suit with costs. The circumstances under which that litigation ended show that the case did not fall under the provisions of O. 23 r. 1 at all. There was no question of a formal defect, or withdrawal of a suit or abandonment of a part of the claim. Order 23 r. 1 does not provide for a courts order dismissing the suit. Order 9 r. 8 of the Code of Civil Procedure is more properly applicable to the facts.As pointed out by the Judicial Committee of the Privy Council in Raghunath Singhs (1) case, the issues in the two suits for redemption are quite different. The question are : (i) whether the plaintiff (mortgagor) had the right to redeem when he filed and second suit, and (ii) what amount he was now liable to pay to redeem? the Board held in that case that the trial of these issues was not barred under section 11 of the Civil Procedure Code. It follows therefore, that if the right of redemption is not extinguished, provisions like O. 9 r. 9 or O. 23 r. 1 will not debar that mortgagor from filing a second suit because, as in a partition suit, the cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one.13. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which this suit filed in 1929, had ended. They did not express any opinion on the two alternative contentions urged before us on behalf of the respondents. The first contention was that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidence by the two documents of 7th November, 1932. It was contended that this position was covered by the proviso to section 60 of the transfer of property Act. We are unable to accept this argument because, in our opinion, on a true construction of the two documents, the right of redemption of the mortgagor was not extinguished thereby. The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is, however, no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100/- mentioned therein. This was only an agreement to convey the lands after three months, and, if at all, the question of extinction of the equity of redemption could arise on the conveyance being excepted but not before. The evidence on record shows that soon after the dismissal of the mortgagors 1929 suit, the mortgages repudiated the agreement and thereafter the parties adopted from time to time such attitude in respect of the said agreement as it suited them for the moment.The trial judge has held that the two documents were executed, but there was no bona fide compromise at all. In the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished.The second argument advanced on behalf of the respondents in this connection was that although there was no sale deed by the mortgagor as provided under his writing of 7th November, the Court should specifically enforce it under section 53-A of the Transfer of Property Act. The words of section 53-A negative this contention completely.14. The section clearly requires that the transferee (the mortgagees) had either to be put into possession or had to continue in possession in part performance of the agreement, which was sought to be enforced under the section. It is admitted that the mortgagees had never been in possession. It was argued on their behalf that constructive possession was sufficient for the section. Even so, in this case the mortgagees had not even constructive possession of the lands. Under the mortgages of 1915 and 1916 they were entitled to receive possession of the lands from the lessees on the termination of the previous cowle at the end of F. 1334. Before the end of that period they were entitled to receive rent from the lessees. The mortgagor had, however, given notice to the lessees not to pay rent to the mortgagees and in fact he mortgagor had recovered the rents from the lessees. The mortgages claimed that they were entitled to possession but they were never in constructive possession, because the lessees did not pay them rent. The suit filed by the mortgagees in 1926 was to recover from the lessees possession and rent for the unexpired period of the lease and for mesne profits thereafter. It is, therefore, clear that the mortgagees as such were never in actual or constructive possession of the suit lands. It is still more clear therefore, that they were never put in possession or allowed to continue in possession, actual or constructive, in pursuance of the agreement of the 7th November, 1932. The section therefore, has no application. The result is that the conclusion of the Madras High Court that the mortgagors right of redemption had been extinguished or was not enforceable cannot be supported.Appeal No. II arises out of the mortgagees suit filed in 1926 to secure possession of the lands and receive payment of rent and mesne profits from the lessees. At a later stage the mortgagor was made a party to the suit. In that suit a decree for possession was passed by the High Court on the footing that the mortgagor was not entitled to redeem. That conclusion of the High Court is now held to be incorrect. The matter will have therefore, to go back to the High Court for its decision on the footing of our conclusion. | 1 | 5,965 | 3,391 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the trial of these issues was not barred under section 11 of the Civil Procedure Code. It follows therefore, that if the right of redemption is not extinguished, provisions like O. 9 r. 9 or O. 23 r. 1 will not debar that mortgagor from filing a second suit because, as in a partition suit, the cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one. 13. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which this suit filed in 1929, had ended. They did not express any opinion on the two alternative contentions urged before us on behalf of the respondents. The first contention was that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidence by the two documents of 7th November, 1932. It was contended that this position was covered by the proviso to section 60 of the transfer of property Act. We are unable to accept this argument because, in our opinion, on a true construction of the two documents, the right of redemption of the mortgagor was not extinguished thereby. The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is, however, no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100/- mentioned therein. This was only an agreement to convey the lands after three months, and, if at all, the question of extinction of the equity of redemption could arise on the conveyance being excepted but not before. The evidence on record shows that soon after the dismissal of the mortgagors 1929 suit, the mortgages repudiated the agreement and thereafter the parties adopted from time to time such attitude in respect of the said agreement as it suited them for the moment. The trial judge has held that the two documents were executed, but there was no bona fide compromise at all. In the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished.The second argument advanced on behalf of the respondents in this connection was that although there was no sale deed by the mortgagor as provided under his writing of 7th November, the Court should specifically enforce it under section 53-A of the Transfer of Property Act. The words of section 53-A negative this contention completely. The relevant portion of the section is as follows :- S. 53-A Where any person contracts to transfer for consideration any immovable property by writing signed by hi or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract........ and the transferee has performed or is willing to perform his part of the contract......... 14. The section clearly requires that the transferee (the mortgagees) had either to be put into possession or had to continue in possession in part performance of the agreement, which was sought to be enforced under the section. It is admitted that the mortgagees had never been in possession. It was argued on their behalf that constructive possession was sufficient for the section. Even so, in this case the mortgagees had not even constructive possession of the lands. Under the mortgages of 1915 and 1916 they were entitled to receive possession of the lands from the lessees on the termination of the previous cowle at the end of F. 1334. Before the end of that period they were entitled to receive rent from the lessees. The mortgagor had, however, given notice to the lessees not to pay rent to the mortgagees and in fact he mortgagor had recovered the rents from the lessees. The mortgages claimed that they were entitled to possession but they were never in constructive possession, because the lessees did not pay them rent. The suit filed by the mortgagees in 1926 was to recover from the lessees possession and rent for the unexpired period of the lease and for mesne profits thereafter. It is, therefore, clear that the mortgagees as such were never in actual or constructive possession of the suit lands. It is still more clear therefore, that they were never put in possession or allowed to continue in possession, actual or constructive, in pursuance of the agreement of the 7th November, 1932. The section therefore, has no application. The result is that the conclusion of the Madras High Court that the mortgagors right of redemption had been extinguished or was not enforceable cannot be supported.Appeal No. II arises out of the mortgagees suit filed in 1926 to secure possession of the lands and receive payment of rent and mesne profits from the lessees. At a later stage the mortgagor was made a party to the suit. In that suit a decree for possession was passed by the High Court on the footing that the mortgagor was not entitled to redeem. That conclusion of the High Court is now held to be incorrect. The matter will have therefore, to go back to the High Court for its decision on the footing of our conclusion.
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part of the claim. Order 23 r. 1 does not provide for a courts order dismissing the suit. Order 9 r. 8 of the Code of Civil Procedure is more properly applicable to the facts.As pointed out by the Judicial Committee of the Privy Council in Raghunath Singhs (1) case, the issues in the two suits for redemption are quite different. The question are : (i) whether the plaintiff (mortgagor) had the right to redeem when he filed and second suit, and (ii) what amount he was now liable to pay to redeem? the Board held in that case that the trial of these issues was not barred under section 11 of the Civil Procedure Code. It follows therefore, that if the right of redemption is not extinguished, provisions like O. 9 r. 9 or O. 23 r. 1 will not debar that mortgagor from filing a second suit because, as in a partition suit, the cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one.13. The High Court decided both the appeals against the mortgagor on the footing that the mortgagor was debarred from claiming redemption, because of the way in which this suit filed in 1929, had ended. They did not express any opinion on the two alternative contentions urged before us on behalf of the respondents. The first contention was that the right of redemption was extinguished by the act of the parties in arriving at the compromise evidence by the two documents of 7th November, 1932. It was contended that this position was covered by the proviso to section 60 of the transfer of property Act. We are unable to accept this argument because, in our opinion, on a true construction of the two documents, the right of redemption of the mortgagor was not extinguished thereby. The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is, however, no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100/- mentioned therein. This was only an agreement to convey the lands after three months, and, if at all, the question of extinction of the equity of redemption could arise on the conveyance being excepted but not before. The evidence on record shows that soon after the dismissal of the mortgagors 1929 suit, the mortgages repudiated the agreement and thereafter the parties adopted from time to time such attitude in respect of the said agreement as it suited them for the moment.The trial judge has held that the two documents were executed, but there was no bona fide compromise at all. In the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished.The second argument advanced on behalf of the respondents in this connection was that although there was no sale deed by the mortgagor as provided under his writing of 7th November, the Court should specifically enforce it under section 53-A of the Transfer of Property Act. The words of section 53-A negative this contention completely.14. The section clearly requires that the transferee (the mortgagees) had either to be put into possession or had to continue in possession in part performance of the agreement, which was sought to be enforced under the section. It is admitted that the mortgagees had never been in possession. It was argued on their behalf that constructive possession was sufficient for the section. Even so, in this case the mortgagees had not even constructive possession of the lands. Under the mortgages of 1915 and 1916 they were entitled to receive possession of the lands from the lessees on the termination of the previous cowle at the end of F. 1334. Before the end of that period they were entitled to receive rent from the lessees. The mortgagor had, however, given notice to the lessees not to pay rent to the mortgagees and in fact he mortgagor had recovered the rents from the lessees. The mortgages claimed that they were entitled to possession but they were never in constructive possession, because the lessees did not pay them rent. The suit filed by the mortgagees in 1926 was to recover from the lessees possession and rent for the unexpired period of the lease and for mesne profits thereafter. It is, therefore, clear that the mortgagees as such were never in actual or constructive possession of the suit lands. It is still more clear therefore, that they were never put in possession or allowed to continue in possession, actual or constructive, in pursuance of the agreement of the 7th November, 1932. The section therefore, has no application. The result is that the conclusion of the Madras High Court that the mortgagors right of redemption had been extinguished or was not enforceable cannot be supported.Appeal No. II arises out of the mortgagees suit filed in 1926 to secure possession of the lands and receive payment of rent and mesne profits from the lessees. At a later stage the mortgagor was made a party to the suit. In that suit a decree for possession was passed by the High Court on the footing that the mortgagor was not entitled to redeem. That conclusion of the High Court is now held to be incorrect. The matter will have therefore, to go back to the High Court for its decision on the footing of our conclusion.
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M/S.Sil Import Export Vs. M/S.Exim Aides Silk Exporters | above book has been quoted with approval by a three-Judge Bench of this Court in State v. S.T. Chaudhary, 1996 2 SCC 428 =1 (1996) CCR 156 (SC): “It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time nevertheless to be construed in accordance with the need to treat it as current law.” 18. So if the notice envisaged in Clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal requirement. 19. The High Courts view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in Clause (c). As per the said clause the starting date is the date of “the receipt of the said notice”. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. 20. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no Court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose. 21. In this context the decision of a two-Judge Bench inSadanandan Bhadranv. Madhavan Sunil Kumar, 1998 (6) SCC 514 =VII (1998) SLT 157 (SC)=III (1998) CCR 238 (SC), can be referred to. A payee did not file the complaint within 45 days of sending the notice after the cheque was bounced back, but he presented the cheque once again thereafter and issued another notice. When a new cause of action arose on the strength of the second presentation of the cheque a complaint was filed by the payee on the strength of that second presentation of the cheque. This Court has stated the law in that case as follows: “Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 (c) arises and can arise only once.” (Emphasis supplied) (para 6) 22. Learned Judges proceeded further to consider whether in a case where notice in writing was sent after the first dishonour of the cheque, the payee can once again present the cheque, get it dishonoured for the purpose of filing the complaint. Following statement of law has been clearly adumbrated by this Court in paragraph 7 thereof.: “Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other fom1idable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with Clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can the first offence be treated as offence of the first one. At that stage, it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again.” 23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint. | 1[ds]23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint. | 1 | 2,989 | 306 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
above book has been quoted with approval by a three-Judge Bench of this Court in State v. S.T. Chaudhary, 1996 2 SCC 428 =1 (1996) CCR 156 (SC): “It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time nevertheless to be construed in accordance with the need to treat it as current law.” 18. So if the notice envisaged in Clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal requirement. 19. The High Courts view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reasoning is that it erases the starting date of the period of 15 days envisaged in Clause (c). As per the said clause the starting date is the date of “the receipt of the said notice”. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. 20. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no Court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become otiose. 21. In this context the decision of a two-Judge Bench inSadanandan Bhadranv. Madhavan Sunil Kumar, 1998 (6) SCC 514 =VII (1998) SLT 157 (SC)=III (1998) CCR 238 (SC), can be referred to. A payee did not file the complaint within 45 days of sending the notice after the cheque was bounced back, but he presented the cheque once again thereafter and issued another notice. When a new cause of action arose on the strength of the second presentation of the cheque a complaint was filed by the payee on the strength of that second presentation of the cheque. This Court has stated the law in that case as follows: “Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of the Act leaves no room for doubt that cause of action within the meaning of Section 142 (c) arises and can arise only once.” (Emphasis supplied) (para 6) 22. Learned Judges proceeded further to consider whether in a case where notice in writing was sent after the first dishonour of the cheque, the payee can once again present the cheque, get it dishonoured for the purpose of filing the complaint. Following statement of law has been clearly adumbrated by this Court in paragraph 7 thereof.: “Besides the language of Sections 138 and 142 which clearly postulates only one cause of action, there are other fom1idable impediments which negate the concept of successive causes of action. One of them is that for dishonour of one cheque, there can be only one offence and such offence is committed by the drawer immediately on his failure to make the payment within fifteen days of the receipt of the notice served in accordance with Clause (b) of the proviso to Section 138. That necessarily means that for similar failure after service of fresh notice on subsequent dishonour, the drawer cannot be liable for any offence nor can the first offence be treated as offence of the first one. At that stage, it will not be a question of waiver of the right of the payee to prosecute the drawer but of absolution of the drawer of an offence, which stands already committed by him and which cannot be committed by him again.” 23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint.
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23. The above view of this Court is in direct conflict with the view expressed by the Full Bench of the Kerala High Court in M/s. SKD Lakshmanan Fireworks Industries v.K.V. Sivarama Krishnan, 1995 Cr. Law Journal 1384. [In the headnote made in a volume of Supreme Court Cases which reported Sadanandan Bhadran (supra)] the Editor has noted thus: SKD Lakshmanan Fireworks Industries v. K. V. Sivarama Krishnan, (supra) is approved. This needs correction through a corrigendum because the dictum of the Full Bench in SKD Llakshmanan Fireworks Industries v. Sivarama Krishnan had been disapproved by this Court in Sadanandan Bhadrans case.24. The upshot of the discussion is, on the date when the notice sent by fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution, thereafter, due to the clear interdict contained in Section 142 of the Act.25. In this case the complainant has admitted the fact that written notice was sent by fax, Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date.) The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996 so the Court has no jurisdiction to take cognizance of the offence on the said complaint.
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Commissioner of Income Tax, Shillong Vs. Tarajan Tea Co. (P) Ltd | M. Srinivasan, J. The three questions referred to the High Court for answer in this matter are as follows : "1. Whether on the facts and in the circumstances of the case, the tribunal having held that there was no case for re-opening the assessment under Section 147(a) of the Income Tax Act, 1961 on the reason recorded, nor any cause for re-opening of the assessment under section 147(b) of the Act on the reasons recorded on 31.3.1977 was justified in law in sustaining the re-opening of assessment under Section 147(b) of the Act on the reasons and grounds given in the order passed an appeal ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the re-assessment proceeding initiated under Section 147(a) of the Act by issue of notice dated 31.12.1976 under Section 148 of the Act on the reasons recorded, could be validly converted into a proceeding under Section 147(b) of the Act subsequently ? 3. Whether on the facts and in the circumstances of the case the tribunal was justified in law in setting aside the order of the Appellate Assistant Commissioner of Income Tax cancelling the re-assessment orders passed by the Income Tax Officer in ignorance of Section 144-B of the Act and in directing the Income Tax Officer to resort to the provisions of Section 144-B afresh instead of annuling and/or cancelling the re-assessment orders and without also taking into consideration the legal bar of limitation for the passing of re-assessment orders under Section 153 of the Act ?" 2. The short facts which gave rise to that reference were that the respondent-assessee was dully assessed by the Income Tax Officer (ITO) for the relevant period on the basis of the information supplied by the assessee. No particulars were left out by the assessee for enabling the completion of his assessment. However, the ITO re-opened the assessment and issued a notice under Section 147(a) of the Income Tax Act on the basis that in the case of another Tea Company, the Appellate Court Commissioner had taken the view that sale of standing trees constituted revenue receipts and, therefore, liable to tax. The ITO was of the opinion that the decision of the Appellate Assistant Commissioner in the other case would amount to `information within the meaning of Section 147(a) of the Act in so far as the assessee-company is concerned. 3. In the course of the proceedings under Section 147(a), the ITO found that it could not be sustained under that sub-section and converted the same into a proceeding under Section 147(b) and concluded the matter. The order of the ITO was challenged before the Appellate Assistant Commissioner (AAC) who set aside the same. But on further appeal by the Revenue, the Tribunal modified the order of the AAC and permitted the ITO to proceed afresh under Section 144B of the Act. When the matter came before the High Court, the reference was answered in favour of the assessee and the order passed by the ITO on re-assessment was set aside. In fact, the High Court observed that the Tribunal ought to have quashed the order converting the proceedings under Section 147(b) from that under Section 147(a). 4. On perusal of the records, we find that neither Section 147(a) nor Section 147(b) would apply in this case. The said Section at the relevant period (and prior to Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1.4.1989) read as follows : "If - (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under Section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year). 5. A perusal of the record in this case shows that there was no omission or failure on the part of the assessee to make a return under Section 139 as contemplated in clause (a); nor was there any information in the possession of the Assessing Officer obtained by him subsequent to the assessment order. Whatever information was necessary was already available to the Assessing Officer when the first assessment was made. The order passed by the AAC in another case is not `information within the meaning of the Section. Hence, neither clause (a) nor clause (b) of the Section would apply in this case. 6. In the circumstances, it is unnecessary for us to consider the question whether a proceeding under Section 147(a) could be converted into a proceeding under Section 147(b) in the course of the proceedings without issuing a fresh notice and initiation of a fresh proceeding. | 0[ds]5. A perusal of the record in this case shows that there was no omission or failure on the part of the assessee to make a return under Section 139 as contemplated in clause (a); nor was there any information in the possession of the Assessing Officer obtained by him subsequent to the assessment order. Whatever information was necessary was already available to the Assessing Officer when the first assessment was made. The order passed by the AAC in another case is not `information within the meaning of the Section. Hence, neither clause (a) nor clause (b) of the Section would apply in this case.In the circumstances, it is unnecessary for us to consider the question whether a proceeding under Section 147(a) could be converted into a proceeding under Section 147(b) in the course of the proceedings without issuing a fresh notice and initiation of a fresh proceeding. | 0 | 1,023 | 173 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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M. Srinivasan, J. The three questions referred to the High Court for answer in this matter are as follows : "1. Whether on the facts and in the circumstances of the case, the tribunal having held that there was no case for re-opening the assessment under Section 147(a) of the Income Tax Act, 1961 on the reason recorded, nor any cause for re-opening of the assessment under section 147(b) of the Act on the reasons recorded on 31.3.1977 was justified in law in sustaining the re-opening of assessment under Section 147(b) of the Act on the reasons and grounds given in the order passed an appeal ? 2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the re-assessment proceeding initiated under Section 147(a) of the Act by issue of notice dated 31.12.1976 under Section 148 of the Act on the reasons recorded, could be validly converted into a proceeding under Section 147(b) of the Act subsequently ? 3. Whether on the facts and in the circumstances of the case the tribunal was justified in law in setting aside the order of the Appellate Assistant Commissioner of Income Tax cancelling the re-assessment orders passed by the Income Tax Officer in ignorance of Section 144-B of the Act and in directing the Income Tax Officer to resort to the provisions of Section 144-B afresh instead of annuling and/or cancelling the re-assessment orders and without also taking into consideration the legal bar of limitation for the passing of re-assessment orders under Section 153 of the Act ?" 2. The short facts which gave rise to that reference were that the respondent-assessee was dully assessed by the Income Tax Officer (ITO) for the relevant period on the basis of the information supplied by the assessee. No particulars were left out by the assessee for enabling the completion of his assessment. However, the ITO re-opened the assessment and issued a notice under Section 147(a) of the Income Tax Act on the basis that in the case of another Tea Company, the Appellate Court Commissioner had taken the view that sale of standing trees constituted revenue receipts and, therefore, liable to tax. The ITO was of the opinion that the decision of the Appellate Assistant Commissioner in the other case would amount to `information within the meaning of Section 147(a) of the Act in so far as the assessee-company is concerned. 3. In the course of the proceedings under Section 147(a), the ITO found that it could not be sustained under that sub-section and converted the same into a proceeding under Section 147(b) and concluded the matter. The order of the ITO was challenged before the Appellate Assistant Commissioner (AAC) who set aside the same. But on further appeal by the Revenue, the Tribunal modified the order of the AAC and permitted the ITO to proceed afresh under Section 144B of the Act. When the matter came before the High Court, the reference was answered in favour of the assessee and the order passed by the ITO on re-assessment was set aside. In fact, the High Court observed that the Tribunal ought to have quashed the order converting the proceedings under Section 147(b) from that under Section 147(a). 4. On perusal of the records, we find that neither Section 147(a) nor Section 147(b) would apply in this case. The said Section at the relevant period (and prior to Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1.4.1989) read as follows : "If - (a) the Assessing Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under Section 139 for any assessment year to the Assessing Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Assessing Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year). 5. A perusal of the record in this case shows that there was no omission or failure on the part of the assessee to make a return under Section 139 as contemplated in clause (a); nor was there any information in the possession of the Assessing Officer obtained by him subsequent to the assessment order. Whatever information was necessary was already available to the Assessing Officer when the first assessment was made. The order passed by the AAC in another case is not `information within the meaning of the Section. Hence, neither clause (a) nor clause (b) of the Section would apply in this case. 6. In the circumstances, it is unnecessary for us to consider the question whether a proceeding under Section 147(a) could be converted into a proceeding under Section 147(b) in the course of the proceedings without issuing a fresh notice and initiation of a fresh proceeding.
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0
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5. A perusal of the record in this case shows that there was no omission or failure on the part of the assessee to make a return under Section 139 as contemplated in clause (a); nor was there any information in the possession of the Assessing Officer obtained by him subsequent to the assessment order. Whatever information was necessary was already available to the Assessing Officer when the first assessment was made. The order passed by the AAC in another case is not `information within the meaning of the Section. Hence, neither clause (a) nor clause (b) of the Section would apply in this case.In the circumstances, it is unnecessary for us to consider the question whether a proceeding under Section 147(a) could be converted into a proceeding under Section 147(b) in the course of the proceedings without issuing a fresh notice and initiation of a fresh proceeding.
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Gupta Chemicals Private Limited Vs. State of Rajasthan | of the cases, there is no doubt that the appellants have been deprived of the valuable right to get the sample examined at the central insecticide laboratory which is vested in them under section 24 sub-section (4) of the Act. He further contended that the appellants had sent intimation to the inspector that they were not accepting the state analysed report as correct and intend to have the sample examined at the central insecticides laboratory and that the finality and the conclusiveness attached under the statutes in respect of the state analysed report is not available to the prosecution. More than two years had elapsed between the grant of permission and filing of the Complaint petition by which time the shelf- life of the material seized had expired. In these circumstances, Shri Sanghi submitted that no useful purpose will be served in continuing these criminal proceeding and it is a fit case in which the High Court should have quashed the proceeding in exercise of its power under section 482 of the Criminal Procedure Code. (7) Per Contra the learned counsel appearing for the respondent, State of Rajasthan contended that these points may be raised by the appellants at the appropriate stage of the proceedings and even accepting the factual position as stated to be correct, no case for quashing of the complaint in exercise of power under section 482 of the Criminal Procedure Code is made out, and therefore, no interference with the order passed-by the High Court is called for. (8) At the outset, we may note certain provisions of the Act which are relevant for the purpose of the present proceeding. (9) Section 3 (k) of the Act, which defines the expression "mis-branded" provides that insecticides shall be deemed to be mis-branded in the circumstances enumerated in clauses (i), (ii), and (viii). Clause (viii) of section 3 (k) under which the complaint appears to have been filed reads as follows. "3. Definitions - in this Act, unless the context otherwise requires - (K) "mis-branded" - an insecticide shall be deemed to be mis-branded. (VIII) If the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration." (10) The provision clearly indicates that for the purpose of this clause the report of the analyst is of considerable importance. (11) Section 24 which deals with the reports of the insecticides analyst so far as material for the purpose of the case is quoted hereunder: "24. Report of insecticide analyst- (1) The insecticide analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall within a period of 60 days be deliver to the insecticide inspector submitting with it a signed report in duplicate in the prescribed form. (2) Any document purporting to be a report signed by an insecticide analyst shall be the evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within 28 days of a receipt of a copy of the report notified, in writing, the insecticide inspector or the court before which any proceedings in respect of the samples are pending that he intends to adduce evidence in controversion of the report. (3) Unless the sample has already been tested or analysed in the central insecticide laboratory where a person has under subsection (3) notified his intention of adducing evidence in controversion of the insecticides analysts report. The court may of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory which shall make the test or analysis and report in writing signed by or under the authority of the director of the central insecticides laboratory the results thereof. And such report shall be conclusive evidence of the facts stated therein." (12) From our perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within the prescribed period of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petition filed under section 482 of Code of Criminal Procedure, 1908 | 1[ds](12) From our perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this rightvestedunder thestatutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to theprescribedstandard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within theprescribedperiod of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, thee of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petitionfiledunder section 482 ofCode of Criminal Procedure, 1908 | 1 | 1,708 | 316 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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of the cases, there is no doubt that the appellants have been deprived of the valuable right to get the sample examined at the central insecticide laboratory which is vested in them under section 24 sub-section (4) of the Act. He further contended that the appellants had sent intimation to the inspector that they were not accepting the state analysed report as correct and intend to have the sample examined at the central insecticides laboratory and that the finality and the conclusiveness attached under the statutes in respect of the state analysed report is not available to the prosecution. More than two years had elapsed between the grant of permission and filing of the Complaint petition by which time the shelf- life of the material seized had expired. In these circumstances, Shri Sanghi submitted that no useful purpose will be served in continuing these criminal proceeding and it is a fit case in which the High Court should have quashed the proceeding in exercise of its power under section 482 of the Criminal Procedure Code. (7) Per Contra the learned counsel appearing for the respondent, State of Rajasthan contended that these points may be raised by the appellants at the appropriate stage of the proceedings and even accepting the factual position as stated to be correct, no case for quashing of the complaint in exercise of power under section 482 of the Criminal Procedure Code is made out, and therefore, no interference with the order passed-by the High Court is called for. (8) At the outset, we may note certain provisions of the Act which are relevant for the purpose of the present proceeding. (9) Section 3 (k) of the Act, which defines the expression "mis-branded" provides that insecticides shall be deemed to be mis-branded in the circumstances enumerated in clauses (i), (ii), and (viii). Clause (viii) of section 3 (k) under which the complaint appears to have been filed reads as follows. "3. Definitions - in this Act, unless the context otherwise requires - (K) "mis-branded" - an insecticide shall be deemed to be mis-branded. (VIII) If the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration." (10) The provision clearly indicates that for the purpose of this clause the report of the analyst is of considerable importance. (11) Section 24 which deals with the reports of the insecticides analyst so far as material for the purpose of the case is quoted hereunder: "24. Report of insecticide analyst- (1) The insecticide analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall within a period of 60 days be deliver to the insecticide inspector submitting with it a signed report in duplicate in the prescribed form. (2) Any document purporting to be a report signed by an insecticide analyst shall be the evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within 28 days of a receipt of a copy of the report notified, in writing, the insecticide inspector or the court before which any proceedings in respect of the samples are pending that he intends to adduce evidence in controversion of the report. (3) Unless the sample has already been tested or analysed in the central insecticide laboratory where a person has under subsection (3) notified his intention of adducing evidence in controversion of the insecticides analysts report. The court may of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory which shall make the test or analysis and report in writing signed by or under the authority of the director of the central insecticides laboratory the results thereof. And such report shall be conclusive evidence of the facts stated therein." (12) From our perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this right vested under the statutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to the prescribed standard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within the prescribed period of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, the shelf-life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petition filed under section 482 of Code of Criminal Procedure, 1908
### Response:
1
### Explanation:
(12) From our perusal of the aforequoted provisions it is manifest that ordinarily in the absence of any material to the contrary, the report of the insecticides analyst will be accepted as final and conclusive of the material contained therewith. This is however subject to the right of the accused to have the sample examined by the central insecticides laboratory provided he communicates his intentions for the purpose within 28 days of the receipt of the copy of the report. It needs no emphasis that this rightvestedunder thestatutes valuable for the defence, particularly in a case where the allegations are that the material does not conform to theprescribedstandard. As noted earlier in the present case the appellants had intimated the insecticide inspector their intention to have the sample tested in the central insecticides laboratory within theprescribedperiod of 28 days of receipt of the copy of the state analyst report, yet no step was taken by the inspector either to send the sample to the central insecticides laboratory or to file the complaint in the court with promptitude in which case the appellants would have moved the magistrate for appropriate order for the purpose. The resultant position is that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the central insecticides laboratory and in the meantime, thee of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination. In the circumstances, we are of the view that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. The High Court was not right in dismissing the petitionfiledunder section 482 ofCode of Criminal Procedure, 1908
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The New Jahangir Vakil Millsco., Ltd. Bhavnagar Vs. The Commissioner Of Income-Tax, Bombay North,Kutch & Saura | consider that the High Court correctly answered the question relating to this aspect of the case.8. Now, as to computation of profits. Though it is true that the question which directly arose before the taxing authorities in the present case was whether the assessee was a dealer in 1944, the question of the position of the assessee in 1943, the also arose in determining how the profits made in 1944 should be computed. It is not therefore quite correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings of 1945-46. In determining or computing the profits made by the sale of shares in 1944, the assessing authorities had to go into the question - did the assessee start its trading activity on January 1, 1944 or did it start the trading activity at an earlier date? If the assessee was a dealer when the shares sold in 1944 were originally purchased, then, obviously the principle in 1962-46 ITR 86 : (AIR 1963 SC 477 ) will not apply and the profits will be the excess of the sale price over the original cost price. The extent to which a decision given by an Income-tax Officer for one assessment year affects or binds a decision for another year has been considered by courts several times and speaking generally it may be stated that the doctrine of res judicata or estoppel by record does not apply to such decisions; in some cases it has been held that though the Income-tax Officer is not bound by the rule of res judicata or estoppel by record, he can reopen a question previously decided only if fresh facts come to light or if the earlier decision was rendered without taking into consideration material evidence etc. As to the argument based on Ss. 34 and 35, it is enough to point out that the assessment relating to the year 1943 is not being reopened. That assessment stands. What is being done is to compute the profits of 1944, which the assessing authorities could do, by finding out when the trading activity in shares began. The question of the profits in 1944 was not and could not be the subject of any assessment proceeding relating to 1943, for such profits arose only on the sale of the shares in 1944.8a. In Broken Hill Proprietary Co. v. Broken Hill Municipal Council 1926 AC 94, the question was one of the capital value of a mine for rating purposes. This question of valuation as between the parties was determined by the High Court of Australia in a previous year. But it was held that the decision did not operate as res judicata. The reason given was:"The decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question .. .. namely, the valuation for a different year and the liability for that year. It is not eadem question, and therefore the principle of res judicata cannot apply".In another decision reported in the same volume, Hoystead v. commissioner of Taxation 1926 A C 155 one of the questions was whether certain beneficiaries under a will were joint owners. It was held that although in a previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was so fundamental to the decision then given that it estopped the commissioner. The latter decision was distinguished in society of Medical Officers of Health v. Hope 1960 A C 551. Both the decisions were again considered by the Judicial Committee in Caffoor v. Income Tax Commissioner Colombo 1961 AC 584. The decision in Broken Hill Proprietary Companys case 1926 A C 94 was approved and the principle laid down was that in matters of recurring annual tax a decision on appeal with regard to one years assessment is said not to deal with eadem question as that which arises in respect of assessment for another year and consequently not to set up an estoppel. As to the decision in Hoysteads case 1926 A C 155, it was stated:"Their Lordships are of opinion that it is impossible for them to treat Hoysteads case, 1926 A C 155 as constituting a legal authority on the question of estoppels in respect of successive years of tax assessment. So to treat it would bring it into direct conflict with the contemporaneous decision in the Broken Hill case 1926 AC 94 and to follow it would involve preferring a decision in which the particular point was either assumed without argument or not noticed to a decision, in itself consistent with such other authority, in which the point was explicitly raised and explicitly determined."9. In 1962-2 SCR 644 : (AIR 1962 SC 53 ) the court referred to the decisions just mentioned and said that it was well settled that in matters of taxation there would be no question of res judicata.10. On the principle stated above, it seems to us that it was open to the taxing authorities to consider the position of the assessee in 1943 for the purpose of determining how the gains made in 1944 should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943 the assessee was treated as an investor would not in our opinion estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943. On that finding the profits were correctly computed and the answer given by the High Court to the question of the computation of the profits was correctly given. | 0[ds]The question no doubt has two aspects. Firstly, there is the aspect whether there is any evidence to justify the finding that the assessee was a dealer in shares in 1943. Secondly, there is the aspect as to how the profits made from the sale of shares in 1944 should be computed in the assessment year 1945-46.The argument appears plausible at first sight and it may perhaps be conceded that the question of the computation of profits in a case like this is not entirely free from difficulty. However, on a very careful consideration of the argument we have come to the conclusion that it is not worthy of acceptance. As to the first aspect of the question we see no difficulty. The Appellate Assistant Commissioner and the Tribunal have referred to various transaction relating to shares shown in the books of the assessee. From those transactions they came to the conclusion that the assessee was a dealer in 1943. The High Court has also summarised the various transactions in which the assessee indulged in the year 1943.Having regard to the frequency and nature of those transactions it was open to the taxing authorities to come to the conclusion that the assessee was a dealer in shares in 1943. We are not prepared to say that the rule of "no evidence" can be applied to the present case. We, therefore, consider that the High Court correctly answered the question relating to this aspect of the case.8. Now, as to computation of profits. Though it is true that the question which directly arose before the taxing authorities in the present case was whether the assessee was a dealer in 1944, the question of the position of the assessee in 1943, the also arose in determining how the profits made in 1944 should be computed. It is not therefore quite correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings ofto the argument based on Ss. 34 and 35, it is enough to point out that the assessment relating to the year 1943 is not being reopened. That assessment stands. What is being done is to compute the profits of 1944, which the assessing authorities could do, by finding out when the trading activity in shares began. The question of the profits in 1944 was not and could not be the subject of any assessment proceeding relating to 1943, for such profits arose only on the sale of the shares in 1944.On the principle stated above, it seems to us that it was open to the taxing authorities to consider the position of the assessee in 1943 for the purpose of determining how the gains made in 1944 should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943 the assessee was treated as an investor would not in our opinion estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943. On that finding the profits were correctly computed and the answer given by the High Court to the question of the computation of the profits was correctly given. | 0 | 3,113 | 605 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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consider that the High Court correctly answered the question relating to this aspect of the case.8. Now, as to computation of profits. Though it is true that the question which directly arose before the taxing authorities in the present case was whether the assessee was a dealer in 1944, the question of the position of the assessee in 1943, the also arose in determining how the profits made in 1944 should be computed. It is not therefore quite correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings of 1945-46. In determining or computing the profits made by the sale of shares in 1944, the assessing authorities had to go into the question - did the assessee start its trading activity on January 1, 1944 or did it start the trading activity at an earlier date? If the assessee was a dealer when the shares sold in 1944 were originally purchased, then, obviously the principle in 1962-46 ITR 86 : (AIR 1963 SC 477 ) will not apply and the profits will be the excess of the sale price over the original cost price. The extent to which a decision given by an Income-tax Officer for one assessment year affects or binds a decision for another year has been considered by courts several times and speaking generally it may be stated that the doctrine of res judicata or estoppel by record does not apply to such decisions; in some cases it has been held that though the Income-tax Officer is not bound by the rule of res judicata or estoppel by record, he can reopen a question previously decided only if fresh facts come to light or if the earlier decision was rendered without taking into consideration material evidence etc. As to the argument based on Ss. 34 and 35, it is enough to point out that the assessment relating to the year 1943 is not being reopened. That assessment stands. What is being done is to compute the profits of 1944, which the assessing authorities could do, by finding out when the trading activity in shares began. The question of the profits in 1944 was not and could not be the subject of any assessment proceeding relating to 1943, for such profits arose only on the sale of the shares in 1944.8a. In Broken Hill Proprietary Co. v. Broken Hill Municipal Council 1926 AC 94, the question was one of the capital value of a mine for rating purposes. This question of valuation as between the parties was determined by the High Court of Australia in a previous year. But it was held that the decision did not operate as res judicata. The reason given was:"The decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question .. .. namely, the valuation for a different year and the liability for that year. It is not eadem question, and therefore the principle of res judicata cannot apply".In another decision reported in the same volume, Hoystead v. commissioner of Taxation 1926 A C 155 one of the questions was whether certain beneficiaries under a will were joint owners. It was held that although in a previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was so fundamental to the decision then given that it estopped the commissioner. The latter decision was distinguished in society of Medical Officers of Health v. Hope 1960 A C 551. Both the decisions were again considered by the Judicial Committee in Caffoor v. Income Tax Commissioner Colombo 1961 AC 584. The decision in Broken Hill Proprietary Companys case 1926 A C 94 was approved and the principle laid down was that in matters of recurring annual tax a decision on appeal with regard to one years assessment is said not to deal with eadem question as that which arises in respect of assessment for another year and consequently not to set up an estoppel. As to the decision in Hoysteads case 1926 A C 155, it was stated:"Their Lordships are of opinion that it is impossible for them to treat Hoysteads case, 1926 A C 155 as constituting a legal authority on the question of estoppels in respect of successive years of tax assessment. So to treat it would bring it into direct conflict with the contemporaneous decision in the Broken Hill case 1926 AC 94 and to follow it would involve preferring a decision in which the particular point was either assumed without argument or not noticed to a decision, in itself consistent with such other authority, in which the point was explicitly raised and explicitly determined."9. In 1962-2 SCR 644 : (AIR 1962 SC 53 ) the court referred to the decisions just mentioned and said that it was well settled that in matters of taxation there would be no question of res judicata.10. On the principle stated above, it seems to us that it was open to the taxing authorities to consider the position of the assessee in 1943 for the purpose of determining how the gains made in 1944 should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943 the assessee was treated as an investor would not in our opinion estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943. On that finding the profits were correctly computed and the answer given by the High Court to the question of the computation of the profits was correctly given.
### Response:
0
### Explanation:
The question no doubt has two aspects. Firstly, there is the aspect whether there is any evidence to justify the finding that the assessee was a dealer in shares in 1943. Secondly, there is the aspect as to how the profits made from the sale of shares in 1944 should be computed in the assessment year 1945-46.The argument appears plausible at first sight and it may perhaps be conceded that the question of the computation of profits in a case like this is not entirely free from difficulty. However, on a very careful consideration of the argument we have come to the conclusion that it is not worthy of acceptance. As to the first aspect of the question we see no difficulty. The Appellate Assistant Commissioner and the Tribunal have referred to various transaction relating to shares shown in the books of the assessee. From those transactions they came to the conclusion that the assessee was a dealer in 1943. The High Court has also summarised the various transactions in which the assessee indulged in the year 1943.Having regard to the frequency and nature of those transactions it was open to the taxing authorities to come to the conclusion that the assessee was a dealer in shares in 1943. We are not prepared to say that the rule of "no evidence" can be applied to the present case. We, therefore, consider that the High Court correctly answered the question relating to this aspect of the case.8. Now, as to computation of profits. Though it is true that the question which directly arose before the taxing authorities in the present case was whether the assessee was a dealer in 1944, the question of the position of the assessee in 1943, the also arose in determining how the profits made in 1944 should be computed. It is not therefore quite correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings ofto the argument based on Ss. 34 and 35, it is enough to point out that the assessment relating to the year 1943 is not being reopened. That assessment stands. What is being done is to compute the profits of 1944, which the assessing authorities could do, by finding out when the trading activity in shares began. The question of the profits in 1944 was not and could not be the subject of any assessment proceeding relating to 1943, for such profits arose only on the sale of the shares in 1944.On the principle stated above, it seems to us that it was open to the taxing authorities to consider the position of the assessee in 1943 for the purpose of determining how the gains made in 1944 should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943 the assessee was treated as an investor would not in our opinion estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943. On that finding the profits were correctly computed and the answer given by the High Court to the question of the computation of the profits was correctly given.
|
Rajendra Nagar Adarsh Grah Nirman S.S.Ld Vs. State Of Rajasthan | our founding faith, even if judicially sanctified. Subba Rao J. hit the nail on the head when he cautioned in Lachhman Das v. State of Punjab [1963] 2 SCR 353 :‘The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basic for classification may gradually and imperceptibly deprive the Article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.’The quintessence of the constitutional code of equality is brought out also by Bose, J. in Bidi Supply Co. case Bidi Supply Co. v. The Union of India and Ors. [1956] 29 ITR 717 (SC) .The truth is that it is impossible to be precise, for we are dealing, with intangibles and though the results are clear it is impossible to pin the thought down to any precise analysis. Article 14 sets out, to my mind, an attitude of mind, -a way of life, rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of. something that exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else; one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions of the times and Article 14 narrows down to a question of fact which must be (determined by the highest Judges in the land as each case arises.” (iii) In continuation of the aforesaid, learned counsel also placed reliance on E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3 ; Menaka Gandhi v. Union of India, (1978) 1 SCC 248 ; Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCC 489 ; and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722. 55. We have examined the last contention advanced at the hands of the learned counsel for the appellants. The instant contention is based on a factual assertions, namely, that the Government of Rajasthan acted arbitrarily and in a discriminatory fashion, by deliberately and intentionally leaving out of the acquisition process, land belonging to highly placed influential persons. Before venturing to examine the instant contention advanced at the behest of the appellants, it is necessary to determine, whether the factual position, at the time of acquisition was, as is being alleged by the appellants. Unfortunately, our determination on the instant aspect of the matter is contrary to the assertions advanced at the hands of the appellants. Insofar as the instant aspect of the matter is concerned, reference may be made to paragraph 11 of the counter affidavit filed on behalf of the State of Rajasthan, wherein, it was asserted as under : “It would be relevant to mention that the argument raised about certain lands of IAS & IPA officials being selectively left-out is without any substance. This argument would only suffice if the land belonging to the IAS/IPS officials on the date on of acquisition. This is apart from the fact that certain lands would be left out in acquisition proceedings. It is relevant to mention that no land belongs to any IAS/IPS official on the date of acquisition and any subsequent purchase would not invalidate the acquisition proceedings. Thus, the finding on this aspect does not suffer from any legal infirmity.” The aforesaid factual position has not been denied on behalf of the appellants before this Court. Thus viewed, it is apparent that the land which was left out, and which falls between the two blocks of land acquired, cannot be stated to have been owned by influential bureaucrats or police officers, at the time when the acquisition in question was made. In the aforesaid view of the matter, it is not possible for us to conclude, that the leaving out the land between the two blocks of acquired land, and further that, the choice of acquisition of the appellants’ land to the exclusion of the land left out of acquisition, was vitiated for reasons of fraud, mala fides, arbitrariness or discrimination. For the reasons recorded hereinabove, we find no merit even in the last contention advanced at the hands of the learned counsel for the appellants. 56. It is necessary to record herein that the challenge raised at the behest of the appellants, to the acquisition of land made by the Government of Rajasthan, for the Railways, was vehemently opposed by the official respondents for a variety of reasons. More particularly on the grounds of delay and latches, as also, locus standi of the appellants to assail the acquisition proceedings. Had we dealt with the objections raised by the respondents and found merit therewith, it may not have been necessary for us to examine the merits of the claim raised by the appellants before us. We may acknowledge, that at the first blush, the objections raised by the official respondents did not seem to be bereft of merit. Yet, since the issues canvassed at the hands of the learned counsel for the appellants raised important issues of law, we considered it just and appropriate to deal with them in order to settle the legal proposition canvassed. Having recorded our conclusions on the issues canvassed before us, we are of the view, that it is no longer necessary for us to deal with the objections/submissions canvassed on behalf of the official respondents. | 0[ds]22. Having given our thoughtful consideration to the issue canvassed at the hands of the learned counsel for the appellants, we are of the view that it is necessary in the first instance to determine the subject of legislative competence. If the determination of legislative competence so determined falls in the realm of the Parliament, then the contemplated appropriate Government would be the Central Government. Whereas, if the legislative competence falls in the realm of the State Legislatures, then the appropriate Government in the facts and circumstances of the present case would be the State Government. During the course of hearing, while examining the issue of legislative competence, our attention was invited to entry 33 of the Union List, entry 36 of the State List and entry 42 of the Concurrent List (of the Seventh Schedule of the Constitution of India).its determination with reference to public purpose (relatable to acquisition proceedings), this Court in the judgment referred to hereinabove, clearly held, that public purpose may be relatable to the Central Government, alternatively, it may be relatable to the State Government. Besides the aforesaid two alternatives, there is also a third alternative, namely, a situation wherein the public purpose is a general public purpose, which is neither exclusively relatable to the Central Government and/or fully relatable to the State Government. The third alternative, would be a situation, wherein the cause in question furthers a common public purpose and is relatable both to a Union and a State cause.Viewed dispassionately, we are satisfied, that even the second submission advanced by the learned counsel for the appellants, has trappings of the first contention. To succeed on the basis of the second contention, it is critical for the appellants to succeed on the first. Therefore, if the appellants succeed to establish, that acquisition in the present case, could only have been made by the Union Government, they would simultaneously be able to establish, that they had been deprived of their property in violation of Article 300A of the Constitution, i.e., without following the procedure established by law.law.32. Having given our thoughtful consideration to the matter under consideration, we are of the view, that reliance on entry 33 (of list I of the Seventh Schedule), and on entry 36 (of list II of the Seventh Schedule), and finally on entry 42 (of list III of the Seventh Schedule), is only for the purpose of avoiding and getting around, the real issue. Entries in list I, bring the listed subjects within the legislative competence of the Parliament. Entries in list II demarcate subjects falling within the legislative competence of the State Legislatures. Entries in list III pertain to subjects on which joint legislative competence is vested with the Parliament, as also, the State Legislatures. Needless to mention, that the Constitution vests superiority in enactments made by the Parliament, on subjects enumerated in list III, of the Seventh Schedule (in case of conflict between the legislations enacted by the Parliament and the State Legislatures). Statutory provisions enacted in the manner expressed above, regulate, not only the substance of the legislation, but also modulate the procedure to administer the substance of the legislation.legislation.34. It is in the background of the conclusions recorded in the aforegoing two paragraphs, that we must understand the scope of executive authority vested in the Central Government under Article 73 of the Constitution. There is no dispute whatsoever, that the subject matter under consideration is regulated by the Acquisition Act. As such, the freedom of executive power vested in the Central Government must be deemed to have been curtailed, so as to be exercised in consonance with the provisions of the Acquisition Act. The preceding proposition is the natural consequence of giving effect to the proviso under Article 73(1) of the Constitution ofhe vires of theprovisions of the Acquisition Act relied upon by the learned counsel for the appellants have not been assailed, we are inclined to unhesitatingly hold that the procedure contemplated under the Acquisition Act, is liable to be followed in matters pertaining to governmental acquisitions, of private land. In absence of compliance therewith, the process of acquisition made thereunder, would be liable to be set aside. We are of the view, that Sections 4 and 6 lay down mandatory procedural provisions, which require to be followed in letter and spirit, in matters pertaining to acquisition of private lands.35. For the reasons recorded in the foregoing paragraphs, we are of the view, that reliance on different entries in different lists of the Seventh Schedule, at the behest of the learned counsel for the appellants, may turn out to be wholly inconsequential, in so far as the present controversy is concerned. It needs emphasis, that entries in different lists, have been relied upon only to demarcate the executive domain. To impress upon us, that the jurisdiction to acquire land in the facts of the present case, fell within the exclusive domain of the Central Government, in a very subtle manner, the submission has clearly changed over to a wrong track. Herein the substance of law, as also, the procedure regulating acquisition, flows out of the Acquisition Act.vires of theAcquisition Act is not under challenge. Therefore, the Acquisition Act, which demarcates the jurisdictional areas between the Union and the States will provide an answer to the issue of jurisdiction canvassed, and not the entries in different lists of the Seventh Schedule of the Constitution of India. More so, because the subject of acquisition is now placed in list III of the Seventh Schedule of the Constitution of India (in entry 42), and as such, the Parliament as also the State Legislatures, have concurrent jurisdiction in respect thereof. As such, it would be fully justified for Parliament (as it has done through the Acquisition Act), to demonstrate the areas of jurisdiction. All the same, we shall endeavour to record the submissions advanced on behalf of theother words, prior to the above amendment, State Legislature had the exclusive jurisdiction to enact law for acquisition of private lands, falling within the territorial jurisdiction of the concerned State. The said jurisdiction was now concurrently shared with the Parliament. The said jurisdiction was invoked by the Parliament when it enacted the Acquisition Act. Therefore, in the ultimate analysis the submission advanced by the learned counsel, would not serve the purpose of the appellants herein, inasmuch as, it is not possible for us to read into entry 42 of list III of the Seventh Schedule, the cumulative effect of entries 31 and 36 (of lists I and II respectively of the Seventh Schedule). Hither to before, the jurisdiction of Parliament (and consequently of the Union executive), would extend only to acquisition of land/properties for purposes of the Union. We are satisfied to hold, that consequent upon the Constitution (Seventh Amendment) Act, 1956, the jurisdictional limitations on the subject of acquisition would emerge from a valid legislation made under entry 42 (in list III of the Seventhe the validity of theAcquisition Act has not been assailed by the appellants, we shall accept the same to be a valid legislation enacted under entry 42 (in list III of the Seventh Schedule).From the deliberations recorded above, there is no room for any dispute, that the interpretation of the termed to in Sections 4 and 6 of the Acquisition Act would lead to the correct determination of the executive Government competent to acquire the land under reference. Indubitably, the answer to the issue would emerge from the definition ofthe term ‘appropriatein Section 3(ee) of the Acquisition Act, wherein, the expression ‘appropriatehas been linked to the purpose of acquisition. In such a contingency, theanswer to the query, as to which of the two Governments (Central Government, or the concerned State Government) would satisfy the test of, one will necessarily have to carefully view the real effect of the words engaged to define the said term in Section 3(ee) of the Acquisition Act. Section 3(ee) aforementioned is being extractedthe expression "appropriate Government" means in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the Stateperusal of Section 3(ee) of the Acquisition Act, leaves no room for any doubt, that the authority to acquire land has been divided between the Central executive and the State executive. In situations where an acquisition is entirelythe purposes of theSection 3(ee) aforementioned clearly postulates, that the Union executive would have the exclusive jurisdiction to acquire the land. The terminology engaged in Section 3(ee) of the Acquisition Act, for expressing the area of jurisdiction of the State executive (in the matter of acquisition of land), is not analogous or comparable with that engaged while spelling out the jurisdiction of the Union executive. Section 3(ee), it may be noted, does not express, that in matters of acquisition which are entirely for purposes of a State, the jurisdiction would vest with the concerned State executive. Noticeably, the words engaged to express the jurisdiction of the State executive, are extremely wide, so as to accommodate all acquisitions which are not entirelypurposes of theThis intention of the legislature has been recorded by using the wordsrelation to acquisition of land for any other(i.e., other thanfor the purpose of the2. We are of the view, that the determination on the first issue canvassed at the hands of the learned counsel, would inevitably depend on the purpose for which the land in question came to be acquired. If the purpose of acquisition is exclusively for the Union, then the Union/Central Government will have the exclusive jurisdiction to acquire the land. If the purpose of acquisition is exclusively for a State, then the concerned State Government will have the exclusive jurisdiction to acquire the land. And if the purpose of acquisition is,(i.e., a purpose which is neither exclusively relatable to the Central Government and/or fully relatable to the State Government), yet again, the concerned State Government will have the exclusive jurisdiction to acquire the land.The correspondence between the Railways and the Government of Rajasthan preceding the notification under Section 4 of the Acquisition Act, is the material correspondence on the basis whereof a finding will have to be recorded, on the issue in hand, one way or the other. The desire for transfer of land belonging to the State Government, and thereafter, the desire to furnish land consequent upon its acquisitionto the Railways, leaves no room for any doubt, that the Railways desired the State of Rajasthan to contribute land, for the proposed project. Ordinarily this would be unthinkable, except when the project would directly or indirectly benefit the State as well. Ordinarily, the setting up of a Zonal Office would mean better administration for the Railways establishment. It is difficult to understand how, for the purpose of its own administration, the Railways could repeatedly implore the Government of Rajasthan, in the first instance to transfer land under State ownership to the Railways, and thereafter, make an alternative request to the Government of Rajasthan, to acquire land and to transfer the same to the Railways free of cost. The only reason which one can infer for such an adjuration, ascertainable from the letters referred to above is, that the residents of the State of Rajasthan would also benefit from the establishment of the said Zonal Office. This issue was impressed upon by the Railways, by asserting that better transportation facilities would become available to the public and private entities having a nexus to the State. And therefore, the Railways considered it appropriate to involve the Stateparticipation in the project, in the manner indicated above. The letter addressed by the Union Minister of Railways dated 30.12.1996 is a clear pointer to the above inference. In the said letter, the Union Minister for Railways particularly highlighted the fact that the setting up of the North-Western Railways Zone Complex would improve train services in Rajasthan, which in turn, would benefit the State of Rajasthan. It is, therefore, that in the first instance, transfer of Government land was sought by the Railways. When that did not materialize, the Government was asked to acquire land, and provide it free of cost to the Railways. From the above deliberations, we may record our conclusions as follows. Setting up the North-Western Railway Zonal Complex at Jaipur, would lead to better administration for the Railways, and in that sense it would serve the purpose of the Union. Additionally, it would improve train services in Rajasthan and would accordingly meet the expectations of public and private entities of the area. This would serve the purpose of the State. We would therefore unhesitatingly record, that the situation in hand can be described as one wherein the public purpose isa general publicwhich is neither exclusively relatable to the Central Government and/or fully relatable to the Statehereby affirm, that the State Government had the jurisdiction to acquire the land under reference, because it duly satisfied the requirement ofthe term ‘appropriatereferred to in Sections 4 and 6 of the Acquisitionis, therefore, apparent that in the process of acquisition, no procedural lapse has been pointed out. The only illegality pleaded and canvassed for the annulment of the acquisition proceedings was, thatthe term ‘appropriateused in Sections 4 and 6 of the Acquisition Act was wrongly assumed, as the Government of Rajasthan. It was submitted, that it ought to have been the Union/Central Government.It is necessary to record herein that the challenge raised at the behest of the appellants, to the acquisition of land made by the Government of Rajasthan, for the Railways, was vehemently opposed by the official respondents for a variety of reasons. More particularly on the grounds of delay and latches, as also, locus standi of the appellants to assail the acquisition proceedings. Had we dealt with the objections raised by the respondents and found merit therewith, it may not have been necessary for us to examine the merits of the claim raised by the appellants before us. We may acknowledge, that at the first blush, the objections raised by the official respondents did not seem to be bereft of merit. Yet, since the issues canvassed at the hands of the learned counsel for the appellants raised important issues of law, we considered it just and appropriate to deal with them in order to settle the legal proposition canvassed. Having recorded our conclusions on the issues canvassed before us, we are of the view, that it is no longer necessary for us to deal with the objections/submissions canvassed on behalf of the official respondents. | 0 | 26,554 | 2,737 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
our founding faith, even if judicially sanctified. Subba Rao J. hit the nail on the head when he cautioned in Lachhman Das v. State of Punjab [1963] 2 SCR 353 :‘The doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basic for classification may gradually and imperceptibly deprive the Article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality; the fundamental right to equality before the law and the equal protection of the laws may be replaced by the doctrine of classification.’The quintessence of the constitutional code of equality is brought out also by Bose, J. in Bidi Supply Co. case Bidi Supply Co. v. The Union of India and Ors. [1956] 29 ITR 717 (SC) .The truth is that it is impossible to be precise, for we are dealing, with intangibles and though the results are clear it is impossible to pin the thought down to any precise analysis. Article 14 sets out, to my mind, an attitude of mind, -a way of life, rather than a precise rule of law. It embodies a general awareness in the consciousness of the people at large of. something that exists and which is very real but which cannot be pinned down to any precise analysis of fact save to say in a given case that it falls this side of the line or that, and because of that decisions on the same point will vary as conditions vary, one conclusion in one part of the country and another somewhere else; one decision today and another tomorrow when the basis of society has altered and the structure of current social thinking is different. It is not the law that alters but the changing conditions of the times and Article 14 narrows down to a question of fact which must be (determined by the highest Judges in the land as each case arises.” (iii) In continuation of the aforesaid, learned counsel also placed reliance on E.P. Royappa vs. State of Tamil Nadu, (1974) 4 SCC 3 ; Menaka Gandhi v. Union of India, (1978) 1 SCC 248 ; Ramana Dayaram Shetty vs. International Airport Authority of India, (1979) 3 SCC 489 ; and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722. 55. We have examined the last contention advanced at the hands of the learned counsel for the appellants. The instant contention is based on a factual assertions, namely, that the Government of Rajasthan acted arbitrarily and in a discriminatory fashion, by deliberately and intentionally leaving out of the acquisition process, land belonging to highly placed influential persons. Before venturing to examine the instant contention advanced at the behest of the appellants, it is necessary to determine, whether the factual position, at the time of acquisition was, as is being alleged by the appellants. Unfortunately, our determination on the instant aspect of the matter is contrary to the assertions advanced at the hands of the appellants. Insofar as the instant aspect of the matter is concerned, reference may be made to paragraph 11 of the counter affidavit filed on behalf of the State of Rajasthan, wherein, it was asserted as under : “It would be relevant to mention that the argument raised about certain lands of IAS & IPA officials being selectively left-out is without any substance. This argument would only suffice if the land belonging to the IAS/IPS officials on the date on of acquisition. This is apart from the fact that certain lands would be left out in acquisition proceedings. It is relevant to mention that no land belongs to any IAS/IPS official on the date of acquisition and any subsequent purchase would not invalidate the acquisition proceedings. Thus, the finding on this aspect does not suffer from any legal infirmity.” The aforesaid factual position has not been denied on behalf of the appellants before this Court. Thus viewed, it is apparent that the land which was left out, and which falls between the two blocks of land acquired, cannot be stated to have been owned by influential bureaucrats or police officers, at the time when the acquisition in question was made. In the aforesaid view of the matter, it is not possible for us to conclude, that the leaving out the land between the two blocks of acquired land, and further that, the choice of acquisition of the appellants’ land to the exclusion of the land left out of acquisition, was vitiated for reasons of fraud, mala fides, arbitrariness or discrimination. For the reasons recorded hereinabove, we find no merit even in the last contention advanced at the hands of the learned counsel for the appellants. 56. It is necessary to record herein that the challenge raised at the behest of the appellants, to the acquisition of land made by the Government of Rajasthan, for the Railways, was vehemently opposed by the official respondents for a variety of reasons. More particularly on the grounds of delay and latches, as also, locus standi of the appellants to assail the acquisition proceedings. Had we dealt with the objections raised by the respondents and found merit therewith, it may not have been necessary for us to examine the merits of the claim raised by the appellants before us. We may acknowledge, that at the first blush, the objections raised by the official respondents did not seem to be bereft of merit. Yet, since the issues canvassed at the hands of the learned counsel for the appellants raised important issues of law, we considered it just and appropriate to deal with them in order to settle the legal proposition canvassed. Having recorded our conclusions on the issues canvassed before us, we are of the view, that it is no longer necessary for us to deal with the objections/submissions canvassed on behalf of the official respondents.
### Response:
0
### Explanation:
3(ee) of the Acquisition Act, for expressing the area of jurisdiction of the State executive (in the matter of acquisition of land), is not analogous or comparable with that engaged while spelling out the jurisdiction of the Union executive. Section 3(ee), it may be noted, does not express, that in matters of acquisition which are entirely for purposes of a State, the jurisdiction would vest with the concerned State executive. Noticeably, the words engaged to express the jurisdiction of the State executive, are extremely wide, so as to accommodate all acquisitions which are not entirelypurposes of theThis intention of the legislature has been recorded by using the wordsrelation to acquisition of land for any other(i.e., other thanfor the purpose of the2. We are of the view, that the determination on the first issue canvassed at the hands of the learned counsel, would inevitably depend on the purpose for which the land in question came to be acquired. If the purpose of acquisition is exclusively for the Union, then the Union/Central Government will have the exclusive jurisdiction to acquire the land. If the purpose of acquisition is exclusively for a State, then the concerned State Government will have the exclusive jurisdiction to acquire the land. And if the purpose of acquisition is,(i.e., a purpose which is neither exclusively relatable to the Central Government and/or fully relatable to the State Government), yet again, the concerned State Government will have the exclusive jurisdiction to acquire the land.The correspondence between the Railways and the Government of Rajasthan preceding the notification under Section 4 of the Acquisition Act, is the material correspondence on the basis whereof a finding will have to be recorded, on the issue in hand, one way or the other. The desire for transfer of land belonging to the State Government, and thereafter, the desire to furnish land consequent upon its acquisitionto the Railways, leaves no room for any doubt, that the Railways desired the State of Rajasthan to contribute land, for the proposed project. Ordinarily this would be unthinkable, except when the project would directly or indirectly benefit the State as well. Ordinarily, the setting up of a Zonal Office would mean better administration for the Railways establishment. It is difficult to understand how, for the purpose of its own administration, the Railways could repeatedly implore the Government of Rajasthan, in the first instance to transfer land under State ownership to the Railways, and thereafter, make an alternative request to the Government of Rajasthan, to acquire land and to transfer the same to the Railways free of cost. The only reason which one can infer for such an adjuration, ascertainable from the letters referred to above is, that the residents of the State of Rajasthan would also benefit from the establishment of the said Zonal Office. This issue was impressed upon by the Railways, by asserting that better transportation facilities would become available to the public and private entities having a nexus to the State. And therefore, the Railways considered it appropriate to involve the Stateparticipation in the project, in the manner indicated above. The letter addressed by the Union Minister of Railways dated 30.12.1996 is a clear pointer to the above inference. In the said letter, the Union Minister for Railways particularly highlighted the fact that the setting up of the North-Western Railways Zone Complex would improve train services in Rajasthan, which in turn, would benefit the State of Rajasthan. It is, therefore, that in the first instance, transfer of Government land was sought by the Railways. When that did not materialize, the Government was asked to acquire land, and provide it free of cost to the Railways. From the above deliberations, we may record our conclusions as follows. Setting up the North-Western Railway Zonal Complex at Jaipur, would lead to better administration for the Railways, and in that sense it would serve the purpose of the Union. Additionally, it would improve train services in Rajasthan and would accordingly meet the expectations of public and private entities of the area. This would serve the purpose of the State. We would therefore unhesitatingly record, that the situation in hand can be described as one wherein the public purpose isa general publicwhich is neither exclusively relatable to the Central Government and/or fully relatable to the Statehereby affirm, that the State Government had the jurisdiction to acquire the land under reference, because it duly satisfied the requirement ofthe term ‘appropriatereferred to in Sections 4 and 6 of the Acquisitionis, therefore, apparent that in the process of acquisition, no procedural lapse has been pointed out. The only illegality pleaded and canvassed for the annulment of the acquisition proceedings was, thatthe term ‘appropriateused in Sections 4 and 6 of the Acquisition Act was wrongly assumed, as the Government of Rajasthan. It was submitted, that it ought to have been the Union/Central Government.It is necessary to record herein that the challenge raised at the behest of the appellants, to the acquisition of land made by the Government of Rajasthan, for the Railways, was vehemently opposed by the official respondents for a variety of reasons. More particularly on the grounds of delay and latches, as also, locus standi of the appellants to assail the acquisition proceedings. Had we dealt with the objections raised by the respondents and found merit therewith, it may not have been necessary for us to examine the merits of the claim raised by the appellants before us. We may acknowledge, that at the first blush, the objections raised by the official respondents did not seem to be bereft of merit. Yet, since the issues canvassed at the hands of the learned counsel for the appellants raised important issues of law, we considered it just and appropriate to deal with them in order to settle the legal proposition canvassed. Having recorded our conclusions on the issues canvassed before us, we are of the view, that it is no longer necessary for us to deal with the objections/submissions canvassed on behalf of the official respondents.
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Hiralal Kapur Vs. Prabhu Choudhury | respondent referred, lays down no different principle. 9. So far as the second point is concerned, learned counsel for the respondent relied upon two decisions of this Court in Mohanlal v, Kodni (1979-3 SCR 12) and in Subramania Mudaliar v. Kolapur Traders (1981-4 SCC 511) . In the former, it was held that the profession of a lawyer is “business” within the meaning of Section 10(3)(a)(iii) of the Andhra Pradesh Building (Lease, Rent & Eviction) Control Act, 1960. The latter is a decision to a like effect. These decisions are not of much help in the context of the present case and of the provisions of clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act. Here the landlord is seeking to recover possession of a residential premises. There is, as we have already held, a single tenancy in favour of the respondent for a residential purpose. Though learned counsel for the respondent invited us to say that, so far as the hall was concerned, the premises were being used by a trust and, hence for a non-residential purpose, we cannot permit him to raise this plea. Such a plea was not taken before the High Court. Against the order of the High Court, the respondent had also filed a special leave petition to this Court which has been dismissed. It is therefore not open to the respondent to urge this point before us. The only point taken before the High Court was that the petitioner could not get relief because the use of the hall by a lawyer as his office and library could not amount to a residential requirement. We shall, therefore, confine ourselves to this question. 10. In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to Section 14(1). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an officer cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to Section 14(1). 11. To test our conclusion, we may see what the position would be in the converse, case. If, in the present case, the petitioner had stated that he required the hall because he had no living room in the premises which he was occupying as the only room there was being, or had to be, used by him as an office, the petitioner’s claim could not have been rejected, for he would then have needed the hall clearly as part of his residential requirement. The decision in Khanna v. Batra (1966-2 DL.T. 306) illustrates this. There, an advocate, had asked for eviction of a tenant from the first floor as the ground floor premises occupied by him were not sufficient for his needs for purposes of residence and office. The Rent Control Tribunal held that since the appellant intended to convert existing residential accommodation in his possession into an office and library for the use of his clerk and clients, such a user was not permissible in law. Reversing this conclusion, Grover J. observed: “It seems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes, he could not claim benefit of the provision contained in clause (e) of the proviso to Section 14(1) of the Act. It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely, the requirement of the appellant on personal grounds. I cannot, therefore, accede to the submission of the learned counsel for the respondent that the finding of the Rent Controller Tribunal with regard to the personal need or requirement was one of fact and thus immune from challenge in the second appeal.” 12. Should the position is different in this case? Merely because the petitioner has come forward with an;honest plea that he intends to use a part of his residence as an office, should a different result follow, particularly in a case like this where ill-health compels him to have his office at home? Should the result depend on the jugglery of pleadings or the substance of the matter? We think the substance should prevail. In our opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.13. We are, therefore, of opinion that the High Court should not have interfered with the findings of the Rent Controller on this point as well. This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are inclined to agree with the conclusion of the Rent Controller. | 1[ds]7. We are inclined to agree with this submission of the landlord. The initial tenancy was only an oral tenancy. Nevertheless there were two witnesses who deposed that the original tenancy agreement was only between the petitioner and the respondent. At that time, admittedly, there was no question of Balkunj being the tenant in respect of any portion of the premises. All that the respondent says is that subsequently cheques were being issued in the name of Balkunj also and that this must be taken to lead to an inference that the petitioner had accepted Balkunj as its tenant. It is very difficult to accept this argument.The finding of the Rent Controller that there was only a single tenancy was essentially a finding of fact based on the material andto which we have adverted and we are also inclined to accept the conclusion of the Rent Controller as the correct one. We also agree with the landlord that this is a finding with which the High Court should not have interfered. Though under Section 25(B)(8) of the Delhi Rent Control Act the powers of the High Court are somewhat wider than similar powers of revision under Section 115 of the Civil Procedure Code, it is well established by a series of decisions of this Court that the power of revision under the Rent Control Acts does not entitle the High Court to enter into the merits of the factual controversies between the parties and to reverse findings of fact in this regard. It is sufficient, in this context, to refer to the decision of this Court in Helper Girdharbhai v. Saiyed Mohmad (1987-3 SCC 538) which was reviewed earlier decisions. The decision in Sushila Devi v. Avinash Chandra Jain (1987-2 SCC 219) , to which counsel for the respondent referred, lays down no different principle.In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to Section 14(1). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an officer cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to Sectionour opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.13. We are, therefore, of opinion that the High Court should not have interfered with the findings of the Rent Controller on this point as well. This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are inclined to agree with the conclusion of the Rent Controller. | 1 | 3,371 | 701 | ### Instruction:
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respondent referred, lays down no different principle. 9. So far as the second point is concerned, learned counsel for the respondent relied upon two decisions of this Court in Mohanlal v, Kodni (1979-3 SCR 12) and in Subramania Mudaliar v. Kolapur Traders (1981-4 SCC 511) . In the former, it was held that the profession of a lawyer is “business” within the meaning of Section 10(3)(a)(iii) of the Andhra Pradesh Building (Lease, Rent & Eviction) Control Act, 1960. The latter is a decision to a like effect. These decisions are not of much help in the context of the present case and of the provisions of clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act. Here the landlord is seeking to recover possession of a residential premises. There is, as we have already held, a single tenancy in favour of the respondent for a residential purpose. Though learned counsel for the respondent invited us to say that, so far as the hall was concerned, the premises were being used by a trust and, hence for a non-residential purpose, we cannot permit him to raise this plea. Such a plea was not taken before the High Court. Against the order of the High Court, the respondent had also filed a special leave petition to this Court which has been dismissed. It is therefore not open to the respondent to urge this point before us. The only point taken before the High Court was that the petitioner could not get relief because the use of the hall by a lawyer as his office and library could not amount to a residential requirement. We shall, therefore, confine ourselves to this question. 10. In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to Section 14(1). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an officer cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to Section 14(1). 11. To test our conclusion, we may see what the position would be in the converse, case. If, in the present case, the petitioner had stated that he required the hall because he had no living room in the premises which he was occupying as the only room there was being, or had to be, used by him as an office, the petitioner’s claim could not have been rejected, for he would then have needed the hall clearly as part of his residential requirement. The decision in Khanna v. Batra (1966-2 DL.T. 306) illustrates this. There, an advocate, had asked for eviction of a tenant from the first floor as the ground floor premises occupied by him were not sufficient for his needs for purposes of residence and office. The Rent Control Tribunal held that since the appellant intended to convert existing residential accommodation in his possession into an office and library for the use of his clerk and clients, such a user was not permissible in law. Reversing this conclusion, Grover J. observed: “It seems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes, he could not claim benefit of the provision contained in clause (e) of the proviso to Section 14(1) of the Act. It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely, the requirement of the appellant on personal grounds. I cannot, therefore, accede to the submission of the learned counsel for the respondent that the finding of the Rent Controller Tribunal with regard to the personal need or requirement was one of fact and thus immune from challenge in the second appeal.” 12. Should the position is different in this case? Merely because the petitioner has come forward with an;honest plea that he intends to use a part of his residence as an office, should a different result follow, particularly in a case like this where ill-health compels him to have his office at home? Should the result depend on the jugglery of pleadings or the substance of the matter? We think the substance should prevail. In our opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.13. We are, therefore, of opinion that the High Court should not have interfered with the findings of the Rent Controller on this point as well. This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are inclined to agree with the conclusion of the Rent Controller.
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7. We are inclined to agree with this submission of the landlord. The initial tenancy was only an oral tenancy. Nevertheless there were two witnesses who deposed that the original tenancy agreement was only between the petitioner and the respondent. At that time, admittedly, there was no question of Balkunj being the tenant in respect of any portion of the premises. All that the respondent says is that subsequently cheques were being issued in the name of Balkunj also and that this must be taken to lead to an inference that the petitioner had accepted Balkunj as its tenant. It is very difficult to accept this argument.The finding of the Rent Controller that there was only a single tenancy was essentially a finding of fact based on the material andto which we have adverted and we are also inclined to accept the conclusion of the Rent Controller as the correct one. We also agree with the landlord that this is a finding with which the High Court should not have interfered. Though under Section 25(B)(8) of the Delhi Rent Control Act the powers of the High Court are somewhat wider than similar powers of revision under Section 115 of the Civil Procedure Code, it is well established by a series of decisions of this Court that the power of revision under the Rent Control Acts does not entitle the High Court to enter into the merits of the factual controversies between the parties and to reverse findings of fact in this regard. It is sufficient, in this context, to refer to the decision of this Court in Helper Girdharbhai v. Saiyed Mohmad (1987-3 SCC 538) which was reviewed earlier decisions. The decision in Sushila Devi v. Avinash Chandra Jain (1987-2 SCC 219) , to which counsel for the respondent referred, lays down no different principle.In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here. It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to Section 14(1). But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non-residential use. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises does not cease to be his residence because of that. In the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement. In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an officer cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to Sectionour opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.13. We are, therefore, of opinion that the High Court should not have interfered with the findings of the Rent Controller on this point as well. This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are inclined to agree with the conclusion of the Rent Controller.
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Jitendra Nath Biswas Vs. Empire Of India & Ceylone Tea Co. & Anr | been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K. P. Krishnan ((1961) 1 SCR 227 : AIR 1960 SC 1223 : 19 FJR 61 : (1960) 2 Lab LJ 592). The decision in that case clearly shows that when the appropriate government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate government exceeded is jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be acceptedIt is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit. Section 10 of the Industrial Disputes Act reads 10. Reference of dispute to Boards, Courts or Tribunals. - (1) Where the appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by the order in writing, - (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate government may, if it so thinks fit, make the reference to a Labour Court under clause (c) Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commencedProvided also that where the dispute in relation to which the Central Government is the appropriate government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. It is therefore clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai case (AIR 1969 SC 78 : 22 STC 416 : (1968) 3 SCR 662 ) a five Judges Bench of this Court considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed : (AIR p. 89, para 31) Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all question about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. It is therefore clear that the scheme of the Industrial Dispute Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act. | 0[ds]4. It is not disputed before us that the Industrial Disputes Act was applicable to the present case and it is also not disputed that the Industrial Employment (Standing Orders) Act was also applicable. It is also not in dispute that the enquiry for misconduct was conducted against the appellant in accordance with the Standing. Orders and the main plea which was raised by the appellant plaintiff was that the enquiry was not strictly in accordance with the Standing Orders. It is in this context that the learned Judge of the High Court came to the conclusion that the civil court will have no jurisdiction to try the present suit6. It is not in dispute that the dispute which was raised by the appellant plaintiff fell within the ambit of the definition of industrial dispute as defined in Section 2(k) of the Industrial Disputes Act. It is also not in dispute that the dispute can be taken up by conciliation officer under Section 12. Section 12 of the Industrial Disputes Act provides that when the conciliation officer fails he has to make a report a provided in sub-clause (4) of Section 12. Section 12 reads12. Duties of Conciliation Officers :- (1) Where any industrial dispute exists or is apprehended, the conciliation officer may, or where the dispute relates to a public utility service and a notice under Section 22 has been given, shall hold conciliation proceedings in the prescribed manner(2) The conciliation officer shall for the purpose of bringing about a settlement of the dispute, without delay, investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he thinks fit for the purpose of including the parities to come to a fair and amicable settlement of the dispute(3) If a settlement of the dispute or any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate government (or an officer authorised in this behalf by the appropriate Government) together with a memorandum of the settlement signed by the parties to the dispute(4) If no such settlement is arrived at the conciliation officer shall as soon as practicable after the close of the investigation, send to the appropriate government a full report setting forth the steps taken by him for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof, together with a full statement of such facts and circumstances, and the reasons on account of which, in his opinion, a settlement could not be arrived at(5) If, on a consideration of the report referred to in sub-section (4), the appropriate government is satisfied that there is a case for reference to a Board (Labour Court, Tribunal or National Tribunal), it may make such reference. Where the appropriate government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor(6) A report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate governmentProvided that subject to the approval of the conciliation officer. the time for the submission of the report may be extended by such period as may be agreed upon in writing be all the parties to the disputeSub-clause (5) provides for making a reference by the State Government to a labour court or an appropriate Tribunal. In Bombay Union of Journalists case ((1964) 6 SCR 22 : AIR 1964 SC 1617 : 1964 1 Lab LJ 351) it has been held that the discretion of the government is a discretion which has been exercised not arbitrarily and therefore it could not be said that reference to the labour court or tribunal not available to a worker who raise an industrial dispute. It was observed : (SCR pp. 27-28)This argument must be rejected, because when the appropriate government considers the question as to whether a reference should be made under Section 12(5), it has to act under Section 10(1) of the Act, and Section 10(1) confers discretion on the appropriate government either to refer the dispute, or not to refer it, for industrial adjudication according as it is of the opinion that it is expedient to do so or not. In other words, in dealing with an industrial dispute in respect of which a failure report has been submitted under Section 12(4) the appropriate government ultimately exercises its power under Section 10(1), subject to this that Section 12(5) imposes an obligation on it to record reasons for not making the reference when the dispute has gone through conciliation and a failure report has been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K. P. Krishnan ((1961) 1 SCR 227 : AIR 1960 SC 1223 : 19 FJR 61 : (1960) 2 Lab LJ 592). The decision in that case clearly shows that when the appropriate government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate government exceeded is jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be acceptedIt is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit. Section 10 of the Industrial Disputes Act reads10. Reference of dispute to Boards, Courts or Tribunals. - (1) Where the appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by the order in writing, -(a) refer the dispute to a Board for promoting a settlement thereof; or(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudicationProvided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate government may, if it so thinks fit, make the reference to a Labour Court under clause (c)Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commencedProvided also that where the dispute in relation to which the Central Government is the appropriate government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State GovernmentIt is therefore clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai case (AIR 1969 SC 78 : 22 STC 416 : (1968) 3 SCR 662 ) a five Judges Bench of this Court considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed : (AIR p. 89, para 31)Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all question about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or notIt is therefore clear that the scheme of the Industrial Dispute Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act | 0 | 3,492 | 1,983 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K. P. Krishnan ((1961) 1 SCR 227 : AIR 1960 SC 1223 : 19 FJR 61 : (1960) 2 Lab LJ 592). The decision in that case clearly shows that when the appropriate government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate government exceeded is jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be acceptedIt is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit. Section 10 of the Industrial Disputes Act reads 10. Reference of dispute to Boards, Courts or Tribunals. - (1) Where the appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by the order in writing, - (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate government may, if it so thinks fit, make the reference to a Labour Court under clause (c) Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commencedProvided also that where the dispute in relation to which the Central Government is the appropriate government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. It is therefore clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai case (AIR 1969 SC 78 : 22 STC 416 : (1968) 3 SCR 662 ) a five Judges Bench of this Court considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed : (AIR p. 89, para 31) Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all question about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. It is therefore clear that the scheme of the Industrial Dispute Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act.
### Response:
0
### Explanation:
dispute has gone through conciliation and a failure report has been made under Section 12(4). This question has been considered by this Court in the case of the State of Bombay v. K. P. Krishnan ((1961) 1 SCR 227 : AIR 1960 SC 1223 : 19 FJR 61 : (1960) 2 Lab LJ 592). The decision in that case clearly shows that when the appropriate government considers the question as to whether any industrial dispute should be referred for adjudication or not, it may consider, prima facie, the merits of the dispute and take into account other relevant considerations which would help it to decide whether making a reference would be expedient or not. It is true that if the dispute in question raises questions of law, the appropriate government should not purport to reach a final decision on the said questions of law, because that would normally lie within the jurisdiction of the Industrial Tribunal. Similarly, on disputed questions of fact, the appropriate government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal. But it would not be possible to accept the plea that the appropriate government is precluded from considering even prima facie the merits of the dispute when it decides the question as to whether its power to make a reference should be exercised under Section 10(1) read with Section 12(5), or not. If the claim made is patently frivolous, or is clearly belated, the appropriate government may refuse to make a reference. Likewise, if the impact of the claim on the general relations between the employer and the employees in the region is likely to be adverse, the appropriate government may take that into account in deciding whether a reference should be made or not. It must, therefore be held that a prima facie examination of the merits cannot be said to be foreign to the enquiry which the appropriate government is entitled to make in dealing with a dispute under Section 10(1), and so, the argument that the appropriate government exceeded is jurisdiction in expressing its prima facie view on the nature of the termination of services of appellants 2 and 3, cannot be acceptedIt is therefore clear that in view of language of Section 10 read with Section 12(5) as has been held by this Court an adequate remedy is available to the appellant plaintiff under the scheme of the Industrial Disputes Act itself which is the Act which provides for the relief of reinstatement and back wages which in fact the appellant sought before the civil court by filing a suit. Section 10 of the Industrial Disputes Act reads10. Reference of dispute to Boards, Courts or Tribunals. - (1) Where the appropriate government is of the opinion that any industrial dispute exists or is apprehended, it may at any time, by the order in writing, -(a) refer the dispute to a Board for promoting a settlement thereof; or(b) refer any matter appearing to be connected with or relevant to the dispute to a court for inquiry; or(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudicationProvided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate government may, if it so thinks fit, make the reference to a Labour Court under clause (c)Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commencedProvided also that where the dispute in relation to which the Central Government is the appropriate government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State GovernmentIt is therefore clear that this Act i.e. Industrial Disputes Act not only confers the right on a worker for reinstatement and back wages if the order of termination or dismissal is not in accordance with the Standing Orders but also provides a detailed procedure and machinery for getting this relief. Under these circumstances therefore there is an apparent implied exclusion of the jurisdiction of the civil court. In Dhulabhai case (AIR 1969 SC 78 : 22 STC 416 : (1968) 3 SCR 662 ) a five Judges Bench of this Court considered the language of Section 9 and the scope thereof in respect of exclusion of jurisdiction and it was observed : (AIR p. 89, para 31)Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all question about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or notIt is therefore clear that the scheme of the Industrial Dispute Act clearly excludes the jurisdiction of the civil court by implication in respect of remedies which are available under this Act and for which a complete procedure and machinery has been provided in this Act
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KARNATAKA POWER CORPORATION LIMITED Vs. EMTA COAL LIMITED & ANR | all three companies entered into various contracts for development of the coal mines and supply and delivery of coal. 3. The above arrangement progressed without any dispute, until the Comptroller and Auditor General of India (in short, CAG) submitted a report for the year ending March 2013, wherein it was observed that minimum quantity of coal rejects should be 10% per centum of the total production, valuing Rs. 52,37,00,000 (Rupees fifty two crore thirty seven lakh). At the first instance, the appellant raised objections to the CAG report stating that quantification of the coal rejects should be based on actuals, i.e., the quantity of coal actually sent to the washery and the quantity of coal dispatched thereafter to the thermal power stations, after processing. The appellant specifically indicated that quantification of the coal rejects in the CAG report was erroneous. However, despite the said objections raised by the appellant, the CAG finalized its report which was made available to the appellant. 4. It was only after receipt of this report that the appellant demanded reimbursement of Rs. 52,37,00,000 (Rupees fifty two crore thirty seven lakh) from KEMTA by demand letters dated July 31, 2014 and December 24, 2014. These two demand letters were impugned by the respondents in Writ Petition Nos. 2995- 2996 of 2016 before the High Court of Karnataka. 5. Parallelly, it appears that a dispute subsisted between the respondents and the appellant regarding certain deductions made by the appellant on bills payable to KEMTA on account of washing charges which was based on the quantification by the CAG. The said deductions were challenged by the respondents vide Writ Petition Nos. 2997 and 2998 of 2016 before the High Court of Karnataka whereby the respondents additionally sought refund of Rs 59.78 crores (Rupees Fifty Nine Crores Seventy Eight Lakhs) with interest at the rate of 18% p.a. from 30.06.2012. 6. The above writ petitions were heard together by the High Court of Karnataka. Vide the impugned judgment, the High Court of Karnataka allowed the said writ petitions and, inter alia, directed the appellant to not initiate recovery from the respondents solely on the basis of the CAG report dated March 2013 and held that the respondents would be entitled to receive reimbursements for deductions made by the appellant from the bills. 7. Aggrieved by the above, the appellant has filed the present appeal by way of special leave under Article 136 of the Constitution. 8. The primary submission of the learned senior counsel appearing on behalf of the appellant is that the High Court granted the relief without adjudicating the disputes between the parties or properly appreciating the facts in issue. 9. On the other hand, learned counsel for the respondents supports the impugned judgment and submits that no grounds are made out by the appellant for this Court to interfere in the present matter in exercise of its powers under Article 136 of the Constitution. 10. Heard the counsel for the parties, and perused the material on record. 11. It appears that one of the grounds raised by the appellant in the present case relates to whether the High Court has correctly exercised its discretion in entertaining the subject writ petitions. Although this ground was initially raised by the appellant before the High Court, it appears that it was not pressed at the time of final hearing, as recorded in the impugned judgment. 12. It is worth noting that this Court has already held that in matters pertaining to a state instrumentality, a writ may be maintainable in matters concerning contractual disputes in certain circumstances. While there is no bar on the maintainability of such writ petitions, the discretion lies with the High Courts as to whether to exercise the said jurisdiction or not. This Court has elaborately discussed the principles that must guide the High Courts while deciding whether to exercise their writ jurisdiction in contractual disputes between a State and a private party in a catena of judgments. [See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553; Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] . 13. However, we are not inclined to delve into the issue of whether the High Courts exercise of writ jurisdiction was appropriate, due to the peculiar facts and circumstances of the present case. The present matter pertains to a tender that was awarded by the appellant to EMTA nearly twenty years ago, in the year 2002. The CAG report that appears to have been the starting point for the entire dispute between the parties is dated March, 2013, close to a decade back. In such circumstances, to even advert to arguments on the maintainability of the writ petitions would be unjust to the parties involved. 14. Coming to the merits of the appeal, from the facts, it appears that in the first instance, when the CAG report was first submitted, the appellant itself had raised objections to the quantification of coal rejects arrived at by the CAG. However, when the audit objections were rejected by the CAG, and the final report was made available, the appellant demanded reimbursement from KEMTA based on the same CAG report to which it had filed objections. Such a change of stand by the appellant has not been sufficiently explained. 15. Additionally, a bare perusal of the clauses contained in the various agreements entered into between the parties does not indicate that such deductions could be made for the purposes of washing charges. There does not appear to be any specification laid down as to the method required to be adopted for washing of coal. 16. No material has been placed on record by the appellant to suggest that there was ever any problem with respect to the quality of coal being supplied by KEMTA to the appellant. Rather, the impugned order suggests that coal supplied by KEMTA was utilized by the appellant in its thermal power plants in order to generate electricity. | 0[ds]11. It appears that one of the grounds raised by the appellant in the present case relates to whether the High Court has correctly exercised its discretion in entertaining the subject writ petitions. Although this ground was initially raised by the appellant before the High Court, it appears that it was not pressed at the time of final hearing, as recorded in the impugned judgment.12. It is worth noting that this Court has already held that in matters pertaining to a state instrumentality, a writ may be maintainable in matters concerning contractual disputes in certain circumstances. While there is no bar on the maintainability of such writ petitions, the discretion lies with the High Courts as to whether to exercise the said jurisdiction or not. This Court has elaborately discussed the principles that must guide the High Courts while deciding whether to exercise their writ jurisdiction in contractual disputes between a State and a private party in a catena of judgments. [See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553; Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] 13. However, we are not inclined to delve into the issue of whether the High Courts exercise of writ jurisdiction was appropriate, due to the peculiar facts and circumstances of the present case. The present matter pertains to a tender that was awarded by the appellant to EMTA nearly twenty years ago, in the year 2002. The CAG report that appears to have been the starting point for the entire dispute between the parties is dated March, 2013, close to a decade back. In such circumstances, to even advert to arguments on the maintainability of the writ petitions would be unjust to the parties involved.14. Coming to the merits of the appeal, from the facts, it appears that in the first instance, when the CAG report was first submitted, the appellant itself had raised objections to the quantification of coal rejects arrived at by the CAG. However, when the audit objections were rejected by the CAG, and the final report was made available, the appellant demanded reimbursement from KEMTA based on the same CAG report to which it had filed objections. Such a change of stand by the appellant has not been sufficiently explained.15. Additionally, a bare perusal of the clauses contained in the various agreements entered into between the parties does not indicate that such deductions could be made for the purposes of washing charges. There does not appear to be any specification laid down as to the method required to be adopted for washing of coal.16. No material has been placed on record by the appellant to suggest that there was ever any problem with respect to the quality of coal being supplied by KEMTA to the appellant. Rather, the impugned order suggests that coal supplied by KEMTA was utilized by the appellant in its thermal power plants in order to generate electricity. | 0 | 1,314 | 545 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
all three companies entered into various contracts for development of the coal mines and supply and delivery of coal. 3. The above arrangement progressed without any dispute, until the Comptroller and Auditor General of India (in short, CAG) submitted a report for the year ending March 2013, wherein it was observed that minimum quantity of coal rejects should be 10% per centum of the total production, valuing Rs. 52,37,00,000 (Rupees fifty two crore thirty seven lakh). At the first instance, the appellant raised objections to the CAG report stating that quantification of the coal rejects should be based on actuals, i.e., the quantity of coal actually sent to the washery and the quantity of coal dispatched thereafter to the thermal power stations, after processing. The appellant specifically indicated that quantification of the coal rejects in the CAG report was erroneous. However, despite the said objections raised by the appellant, the CAG finalized its report which was made available to the appellant. 4. It was only after receipt of this report that the appellant demanded reimbursement of Rs. 52,37,00,000 (Rupees fifty two crore thirty seven lakh) from KEMTA by demand letters dated July 31, 2014 and December 24, 2014. These two demand letters were impugned by the respondents in Writ Petition Nos. 2995- 2996 of 2016 before the High Court of Karnataka. 5. Parallelly, it appears that a dispute subsisted between the respondents and the appellant regarding certain deductions made by the appellant on bills payable to KEMTA on account of washing charges which was based on the quantification by the CAG. The said deductions were challenged by the respondents vide Writ Petition Nos. 2997 and 2998 of 2016 before the High Court of Karnataka whereby the respondents additionally sought refund of Rs 59.78 crores (Rupees Fifty Nine Crores Seventy Eight Lakhs) with interest at the rate of 18% p.a. from 30.06.2012. 6. The above writ petitions were heard together by the High Court of Karnataka. Vide the impugned judgment, the High Court of Karnataka allowed the said writ petitions and, inter alia, directed the appellant to not initiate recovery from the respondents solely on the basis of the CAG report dated March 2013 and held that the respondents would be entitled to receive reimbursements for deductions made by the appellant from the bills. 7. Aggrieved by the above, the appellant has filed the present appeal by way of special leave under Article 136 of the Constitution. 8. The primary submission of the learned senior counsel appearing on behalf of the appellant is that the High Court granted the relief without adjudicating the disputes between the parties or properly appreciating the facts in issue. 9. On the other hand, learned counsel for the respondents supports the impugned judgment and submits that no grounds are made out by the appellant for this Court to interfere in the present matter in exercise of its powers under Article 136 of the Constitution. 10. Heard the counsel for the parties, and perused the material on record. 11. It appears that one of the grounds raised by the appellant in the present case relates to whether the High Court has correctly exercised its discretion in entertaining the subject writ petitions. Although this ground was initially raised by the appellant before the High Court, it appears that it was not pressed at the time of final hearing, as recorded in the impugned judgment. 12. It is worth noting that this Court has already held that in matters pertaining to a state instrumentality, a writ may be maintainable in matters concerning contractual disputes in certain circumstances. While there is no bar on the maintainability of such writ petitions, the discretion lies with the High Courts as to whether to exercise the said jurisdiction or not. This Court has elaborately discussed the principles that must guide the High Courts while deciding whether to exercise their writ jurisdiction in contractual disputes between a State and a private party in a catena of judgments. [See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553; Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] . 13. However, we are not inclined to delve into the issue of whether the High Courts exercise of writ jurisdiction was appropriate, due to the peculiar facts and circumstances of the present case. The present matter pertains to a tender that was awarded by the appellant to EMTA nearly twenty years ago, in the year 2002. The CAG report that appears to have been the starting point for the entire dispute between the parties is dated March, 2013, close to a decade back. In such circumstances, to even advert to arguments on the maintainability of the writ petitions would be unjust to the parties involved. 14. Coming to the merits of the appeal, from the facts, it appears that in the first instance, when the CAG report was first submitted, the appellant itself had raised objections to the quantification of coal rejects arrived at by the CAG. However, when the audit objections were rejected by the CAG, and the final report was made available, the appellant demanded reimbursement from KEMTA based on the same CAG report to which it had filed objections. Such a change of stand by the appellant has not been sufficiently explained. 15. Additionally, a bare perusal of the clauses contained in the various agreements entered into between the parties does not indicate that such deductions could be made for the purposes of washing charges. There does not appear to be any specification laid down as to the method required to be adopted for washing of coal. 16. No material has been placed on record by the appellant to suggest that there was ever any problem with respect to the quality of coal being supplied by KEMTA to the appellant. Rather, the impugned order suggests that coal supplied by KEMTA was utilized by the appellant in its thermal power plants in order to generate electricity.
### Response:
0
### Explanation:
11. It appears that one of the grounds raised by the appellant in the present case relates to whether the High Court has correctly exercised its discretion in entertaining the subject writ petitions. Although this ground was initially raised by the appellant before the High Court, it appears that it was not pressed at the time of final hearing, as recorded in the impugned judgment.12. It is worth noting that this Court has already held that in matters pertaining to a state instrumentality, a writ may be maintainable in matters concerning contractual disputes in certain circumstances. While there is no bar on the maintainability of such writ petitions, the discretion lies with the High Courts as to whether to exercise the said jurisdiction or not. This Court has elaborately discussed the principles that must guide the High Courts while deciding whether to exercise their writ jurisdiction in contractual disputes between a State and a private party in a catena of judgments. [See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553; Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] 13. However, we are not inclined to delve into the issue of whether the High Courts exercise of writ jurisdiction was appropriate, due to the peculiar facts and circumstances of the present case. The present matter pertains to a tender that was awarded by the appellant to EMTA nearly twenty years ago, in the year 2002. The CAG report that appears to have been the starting point for the entire dispute between the parties is dated March, 2013, close to a decade back. In such circumstances, to even advert to arguments on the maintainability of the writ petitions would be unjust to the parties involved.14. Coming to the merits of the appeal, from the facts, it appears that in the first instance, when the CAG report was first submitted, the appellant itself had raised objections to the quantification of coal rejects arrived at by the CAG. However, when the audit objections were rejected by the CAG, and the final report was made available, the appellant demanded reimbursement from KEMTA based on the same CAG report to which it had filed objections. Such a change of stand by the appellant has not been sufficiently explained.15. Additionally, a bare perusal of the clauses contained in the various agreements entered into between the parties does not indicate that such deductions could be made for the purposes of washing charges. There does not appear to be any specification laid down as to the method required to be adopted for washing of coal.16. No material has been placed on record by the appellant to suggest that there was ever any problem with respect to the quality of coal being supplied by KEMTA to the appellant. Rather, the impugned order suggests that coal supplied by KEMTA was utilized by the appellant in its thermal power plants in order to generate electricity.
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Pratap Chand Vs. Ram Narayan And Another | find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir land also.10. Now what happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the share mortgaged.11. This brings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share in them. But it was urged that the claim of the respondents to these lands was barred by 0. 11, r. 2 of the Code of Civil Procedure, because they were not specified in the plaint based on the mortgage deed of 1920. Reliance in this connection is placed on Hazarilal v. Hazarimal (A. I. R. 1923 Nag. 130) and Seth Manakchand v. Chaube Manoharlal (A.I.R. 1944 P.C 46, ). These cases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in the plaint.12. This leaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.13. | 0[ds]Sections 49 and 50 in our opinion only come into play when the proprietor making a transfer loses his right to occupy any portion of his sir land temporarily or permanently and sanction has to be obtained under s. 50 only where the transfer is to be made without reservation of the right of occupancy. But the mortgage in this case is a simple mortgage and there was no transfer of possession under it. Therefore the proprietor Ramchandar never lost his right to occupy his sir land by this mortgage and there was therefore no necessity for him to make any reservation in that respect or to apply for sanction under s. 50, for he was not losing the right to occupy his sir at all. But that does not mean that when he mortgaged his entire share of -/5/4 out of -/10/8 share, , he was excluding from the mortgage the area of sir corresponding to the share mortgaged. As the mortgage deed of 1920 stands, it is a mortgage of all the proprietary rights in -/5/4 share including the proprietary right in the sir pertaining to that share ; but as the proprietor was not losing his right to occupy the sir land, the mortgage being without possession, it was not necessary for him to make any application under s. 50 of the Tenancy Act. We are therefore of opinion that the appellant cannot take advantage in the circumstances of the fact that no application was made under s. 50 of the Tenancy Act and therefore there was no effect of this mortgage on the sir rights. As we read the mortagage it clearly affected the sir Tight also pertaining to -/5/4 share and it was not necessary to make an application under s. 50 of the Tenancy Act, for the mortgagor was not losing possession of his sir and there would be no question of any ex-proprietary tenancy arising in his favour, to relinquish which he would have to apply under s.now to the plaint in the mortgage suit we find that the property subject to the mortgage is mentioned in para. 2 thereof inexactly the same terms as in the mortgage deed. In para. 13 it is again recited that the mortgagor mortgaged -/5/4 share out of his -/10/8 share. Paragraph 13 then goes on to say that on the date of the mortgage, the mortgagor had certain khudkashat and chhotaghas lands and both cultivating and proprietary rights in them pertaining to half share only were liable to be sold. No mention was made of sir in this paragraph. But that in our opinion was not necessary, for the mortgage included the mortgage of sir land also pertaining to -/5/4 share though without possession. The prayer in the suit was for sale of the mortgaged property together with khudkashat, etc.; but this again was a mere matter of precaution, for in any case the entire proprietary right in sir, khudkashat, etc., relating to -/5/4 share would be sold on a decree following on thecoming to the sale certificate we find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir landwhat happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the sharebrings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share incases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in theleaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view. | 0 | 3,214 | 1,520 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir land also.10. Now what happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the share mortgaged.11. This brings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share in them. But it was urged that the claim of the respondents to these lands was barred by 0. 11, r. 2 of the Code of Civil Procedure, because they were not specified in the plaint based on the mortgage deed of 1920. Reliance in this connection is placed on Hazarilal v. Hazarimal (A. I. R. 1923 Nag. 130) and Seth Manakchand v. Chaube Manoharlal (A.I.R. 1944 P.C 46, ). These cases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in the plaint.12. This leaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.13.
### Response:
0
### Explanation:
But that in our opinion was not necessary, for the mortgage included the mortgage of sir land also pertaining to -/5/4 share though without possession. The prayer in the suit was for sale of the mortgaged property together with khudkashat, etc.; but this again was a mere matter of precaution, for in any case the entire proprietary right in sir, khudkashat, etc., relating to -/5/4 share would be sold on a decree following on thecoming to the sale certificate we find that it certifies that the respondents had purchased -/5/4 share in the village with abadi, khudkashat, chhotaghas and all rights pertaining to the share. It is true that khudkashat and chhotaghas are specifically mentioned in the sale certificate but the words " all rights pertaining to the share " appearing in the sale certificate would include such proprietary rights in the sir land as belonged to the share mentioned in the sale certificate. We are, therefore, of opinion. that so far as sir land is concerned, the proprietary right in it pertaining to -/5/4 share was mortgaged and the respondents by their sale certificate got a right in the sir landwhat happened after the mortgage deed in favour of the respondents was that the appellant purchased the entire -/10/8 share of Ramchandar subject to the mortgage of the respondents in 1932. At that time Ramchandar became an ex- proprietary tenant of his entire sir relating to this share under s. 49 of the Tenancy Act. In 1936 Ramchandar was ejected from the ex-proprietary tenancy which came in the possession of the appellant as lambardar and has apparently since then remained in his possession. The case of the respondents is that in 1936 their mortgage was subsisting and the sir land which thus came into the possession of the appellant on the extinction of the ex-proprietary tenancy became an accession to the mortgage and, therefore, they as mortgagees were entitled to half share in the lands which thus came into the possession of the appellant. We have already pointed out that the mortgage covered the sir plots also so for as the proprietary rights in them were concerned. Therefore, when Ramchandars ex-proprietary rights came to an end and the land came into the possession of the appellant and became khudkashat, the mortgage would cover this khudkashat land to the extent of the mortgagees share therein. It is, true that if Ramchandars ex- proprietary tenancy had continued, the mortgagee would have no right to ask for half share in it; but when the ex- proprietary tenancy was extinguished and this land came in the possession of the lambardar mortgagor it, was an accession to the mortgage under s. 70 of the Transfer, of Property Act and the mortgagees could claim a share in it., It was however urged that accession to be available to the mortgage must be a legal accession. We however see no illegality in the accession which took place. There is also no doubt that the accession took place when the mortgage was still subsisting. Therefore, we agree with the High Court that on the ex-proprietary tenancy being extinguished, the sir land which Would otherwise-have remained in the exclusive possession of Ramchandar as an ex-proprietary tenant became an accession to the mortgaged property and the respondents would be entitled to half of it on their purchasing the /5/4 share in execution of the decree on the mortgage. The fact that the rent of an ex-proprietary tenant is due to the person whose ex-proprietary tenant he becomes by virtue of the sale or mortgage with possession would make no difference after ex-proprietary tenancy is extinguished, for on such extinction the land would go to the entire proprietary body and would thus in this case be an accession to the mortgage to the extent of the sharebrings us to the lands in the name of Ramchandars mother. It appears that these lands came into the possession of Ramchandar after the mortgage but before the institution of the mortgage suit. They were nominally recorded in the name of his mother and in 1932 after his entire share was purchased by the appellant lie was recorded as an occupancy tenant of these lands. Later the appellant came into possession of them apparently as a lambardar. It is not clear when and how the appellant got possession of them. There can be no doubt however that his possession was for the entire body of proprietors and the respondents would be entitled to a share incases in our opinion do not apply, because they are cases of foreclosure while in the present case the respondents suit was for sale of the share mortgaged with them. Further in the plaint, when specifying the khudkashat plots it wag made clear that they were khudkashat on the date of the mortgage; the respondents thus did not specify the khudkashat plots on the date of the plaint. Though they had specified some plots in the plaint which were mentioned in the sale certificate also, the suit "-as for the sale of the entire /5/4 share and that would include khudkashat lands pertaining to the share existing at the time when the suit was filed. It is not necessary in a suit for sale to specify the lands in the possession of the mortgagor specifically and they would pass on sale along with the share sold. The claim, therefore, would not be barred under 0. 11, r. 2, on the ground that these plots entered in the name of the mother of Ramchandar were not specifically mentioned in theleaves certain lands which came into the possession of the appellant as a lambardar in the ordinary course of management. The respondents would clearly be entitled to a share in these lands also on payment of proportionate expenses incurred by the appellant in the course of suits in which he came into possession. This is what the High Court has ordered and we see no reason to disagree with that view.
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All Escorts Employees Union Vs. The State of Haryana and Ors | necessary to deal with the issue raised in these appeals as the issue does not survive. Civil Appeal Nos. 12843-12844 of 2017 Page 20 of 23 (arising out of SLP (C) Nos. 27020-27021 of 2015) Thus, leaving the question of law open, these appeals are dismissed. 4. From the reading of para 24 extracted above, it can be discerned that this Court took the view that since the workers of Yamaha had formed their own separate Trade Union which is also duly registered with the Registrar, Trade Union and stands recognised by the management of Yamaha, the very purpose of amending Clause 4 stands defeated. It is further mentioned that, in any case, Clause 4 was amended in the year 2007 and since that amendment has been approved by the Registrar, Trade Union, the issue of amendment in Clause 4, as carried out in June, 2001, becomes a non-issue and, therefore, it is not necessary to deal with the issue. 5. In these applications filed by the Appellant, it is submitted that the observation in para 24 to the effect that amendment to Clause 4 carried out in the year 2007 has been approved by the Registrar, Trade Union is factually incorrect. It is stated that the Additional Registrar, Trade Union, Haryana in his counter affidavit has mentioned that the order dated October 21, 2015 was passed whereby the amendment approved vide letter dated November 24, 2007 was withdrawn/cancelled by invoking Clause 4 of the General Clauses Act, 1897. Therefore, amendment to Clause 4 carried out in the year 2007 also does not exist. On that basis, the prayer made in the applications is that findings given in paragraphs 24 and 25 of the judgment dated September 14, 2017 be recalled and the issue that arises for consideration should be decided on merits. 6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure. 7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not. 8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated. 9. In this behalf, it would be pertinent to mention that All India Yamaha Motor Employees Sabha has filed intervention application. In this application, it is, inter alia, stated that intervenor Trade Union is formed for the exclusive benefit for the workmen of Faridabad Plant of Yamaha. It is further stated that all the workers of the said Faridabad Plant are the members of the intervenor Union and they are not being represented by the Appellant-Union. These workers have elected the office-bearers of the intervenor Union and it is this Union which is now representing 100% workers working in the said Union and is negotiating with the employers. Insofar as Appellant-Union is concerned, this Union represents the workers of Escorts Group of Companies. As per Section 6 of the Trade Unions Act, 1926 (hereinafter referred to as the Act), it is necessary for the Trade Union to provide for the matters enumerated in the said Section. Clause (e) thereof deals with admission of ordinary members and provide as under: (e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office-bearers required Under Section 22 to form the executive of the Trade Union; 10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act. | 0[ds]6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act. | 0 | 1,685 | 529 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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necessary to deal with the issue raised in these appeals as the issue does not survive. Civil Appeal Nos. 12843-12844 of 2017 Page 20 of 23 (arising out of SLP (C) Nos. 27020-27021 of 2015) Thus, leaving the question of law open, these appeals are dismissed. 4. From the reading of para 24 extracted above, it can be discerned that this Court took the view that since the workers of Yamaha had formed their own separate Trade Union which is also duly registered with the Registrar, Trade Union and stands recognised by the management of Yamaha, the very purpose of amending Clause 4 stands defeated. It is further mentioned that, in any case, Clause 4 was amended in the year 2007 and since that amendment has been approved by the Registrar, Trade Union, the issue of amendment in Clause 4, as carried out in June, 2001, becomes a non-issue and, therefore, it is not necessary to deal with the issue. 5. In these applications filed by the Appellant, it is submitted that the observation in para 24 to the effect that amendment to Clause 4 carried out in the year 2007 has been approved by the Registrar, Trade Union is factually incorrect. It is stated that the Additional Registrar, Trade Union, Haryana in his counter affidavit has mentioned that the order dated October 21, 2015 was passed whereby the amendment approved vide letter dated November 24, 2007 was withdrawn/cancelled by invoking Clause 4 of the General Clauses Act, 1897. Therefore, amendment to Clause 4 carried out in the year 2007 also does not exist. On that basis, the prayer made in the applications is that findings given in paragraphs 24 and 25 of the judgment dated September 14, 2017 be recalled and the issue that arises for consideration should be decided on merits. 6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure. 7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not. 8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated. 9. In this behalf, it would be pertinent to mention that All India Yamaha Motor Employees Sabha has filed intervention application. In this application, it is, inter alia, stated that intervenor Trade Union is formed for the exclusive benefit for the workmen of Faridabad Plant of Yamaha. It is further stated that all the workers of the said Faridabad Plant are the members of the intervenor Union and they are not being represented by the Appellant-Union. These workers have elected the office-bearers of the intervenor Union and it is this Union which is now representing 100% workers working in the said Union and is negotiating with the employers. Insofar as Appellant-Union is concerned, this Union represents the workers of Escorts Group of Companies. As per Section 6 of the Trade Unions Act, 1926 (hereinafter referred to as the Act), it is necessary for the Trade Union to provide for the matters enumerated in the said Section. Clause (e) thereof deals with admission of ordinary members and provide as under: (e) the admission of ordinary members who shall be persons actually engaged or employed in an industry with which the Trade Union is connected, and also the admission of the number of honorary or temporary members as office-bearers required Under Section 22 to form the executive of the Trade Union; 10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act.
### Response:
0
### Explanation:
6. Insofar as factual error that has occurred in the judgment dated September 14, 2017 as pointed out in these applications is concerned, the Appellant/applicant is correct in its submission. Though amendment to Clause 4 of the Constitution of the Appellant in November, 2007 was initially approved by the Registrar, however, the said approval was withdrawn by the Registrar vide order dated October 21, 2015. It was stated in the counter affidavit filed by the Additional Registrar that initially the amendment was approved inadvertently, which had occasioned because of the concealment of the material facts about the rejection of the earlier application by the Registrar. However, after this fact came to the notice of the Registrar, the amendment was withdrawn vide order dated October 21, 2015 after following due procedure7. After hearing counsel for the parties, we are of the opinion that notwithstanding the aforesaid factual error, the end result remains unaltered. In case, the amendment to Clause 4 which was initially approved by the Registrar, but later on withdrawn, vide order dated October 21, 2015, this decision of the Registrar would furnish a fresh cause of action to the Appellant. It has not come on record whether this order was challenged at all or not8. Be that as it may, main reason in our judgment dated September 14, 2017 to dismiss the appeals was that the workers of Yamaha have formed their own separate Union which is duly registered and also recognised by the management of Yamaha. Therefore, the very purpose of amending Clause 4 stands frustrated10. As per this clause, ordinary members should be those who are actually engaged or employed in an industry in which the Trade Union is connected. It is also significant to note that a Union in a particular establishment should have representative character. For this reason, Section 9A of the Act, which was inserted by Act 31 of 2001 w.e.f. January 9, 2002 mandates that a registered Trade Union of workmen shall at all times continue to have not less than ten per cent or one hundred of the workmen, whichever is less, subject to a minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members. Section 22 of the Act contains another stipulation, namely, not less than one-half of the total number of the office-bearers of every registered Trade Union in an unrecognised sector shall be persons actually engaged or employed in an industry with which the Trade Union is connected. Section 22 in the aforesaid form came to be substituted by Act 31 of 2001 w.e.f. January 9, 2002. Once we find that all the workmen of Yamaha are members of the intervenor Union, obviously the Appellant-Union is not in a position to comply with the provisions of Section 9A read with Section 22 of the Act.
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Jayantilal Amrathlal Vs. Union of India & Others | of 1968 was issued. That Ordinance repealed Part XII-A of the "Rules". The provisions therein were replaced by the provisions of the Ordinance. Section 117(1) of the Ordinance dealt with Repeals and Savings. Section 117 provided :"(1) As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962 shall stand repealed and upon such repeal, Section 6 of the General Clauses Act, 1897, shall apply as if the said Part were a Central Act;(2) Notwithstanding the repeal made by sub-section (1) but without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, order, direction, appointment or declaration made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of part XII-A of the Defence of India Rules, 1962, so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made, issued, granted, adjudged, imposed, ordered, done or taken under the corresponding provisions of this Ordinance."5. In view of Section 117 of the Gold (Control) Ordinance, the notice issued on June 5, 1965 initiating proceedings for forfeiting the gold seized must be deemed to have continued. The provisions in the "Rules" relating to forfeiture are not inconsistent with any of the provisions of the Gold (Control) Ordinance, 1968.6. On August 24, 1968, the Parliament passed the Gold (Control) Act, 1968. The same received the assent of the President on September 1, 1968 and came into force on and from that date. By Section 116(1) of that Act, Gold (Control) Ordinance, 1968 was repealed. Section 116(2) provided :"Notwithstanding such repeal, anything done or any action taken including any notification, order or appointment made, direction given, notice licence or certificate issued, permission, authorisation or exemption granted, confiscation adjudged, penalty or fine imposed, or forfeiture ordered, whether under the Gold (Control) Ordinance, 1968 or Part XII-A of the Defence of India Rules, 1962, shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made, given, issued, granted, adjudged, imposed or ordered, as the case may be, under the corresponding provision of this Act, as if this Act had commenced on the 29th day of June, 1968."7. In view of Section 115(2) of the Gold (Control) Act, 1968, it was urged on behalf of the appellant that the notice issued on June 5, 1965 can no more be operative because under the Gold (Control) Act, 1968, there are no provisions for making a declaration relating to the possession of primary gold. At this stage it may be noticed that under the "Rules" every person who was in possession of primary gold, exceeding the prescribed weight was required to convert the same either into ornaments or sell the same to the licensed dealers within the time prescribed by the "Rules". Possession of primary gold thereafter exceeding the prescribed limit was an offence. That period had expired long before the Gold (Control) Act, 1968 came into force. Hence the Gold (Control) Act naturally did not make any provision for a declaration of the possession of primary gold. In view of that circumstance it was urged on behalf of the appellant that the provisions in the "Rules" requiring a declaration to be made in respect of the possession of primary gold are inconsistent with the provisions of the Gold (Control) Act and therefore the notice issued under the "Rules" cannot be considered as being continued under the provisions of the Gold (Control) Act, 1968.8. The above contention is untenable. There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the "Rules". That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the "Rules" were deemed as an act of Parliament. Hence on the repeal of the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab v. Mohar Singh ((1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 SCJ 25 ) and T. S. Baliah v. Income Tax Officer, Central Circle VI, Madras. ((1969) 3 SCR 65 : 72 ITR 787 : AIR 1969 SC 701 : (1969) 1 SCJ 890)9. For the reasons mentioned above we agree with the High Court that the proceedings commenced by the Collector of Central Excise by means of the notice dated June 5, 1965 must be deemed to be continuing. | 0[ds]At this stage it may be noticed that under the "Rules" every person who was in possession of primary gold, exceeding the prescribed weight was required to convert the same either into ornaments or sell the same to the licensed dealers within the time prescribed by the "Rules". Possession of primary gold thereafter exceeding the prescribed limit was an offence. That period had expired long before the Gold (Control) Act, 1968 came into force. Hence the Gold (Control) Act naturally did not make any provision for a declaration of the possession of primary gold. In view of that circumstance it was urged on behalf of the appellant that the provisions in the "Rules" requiring a declaration to be made in respect of the possession of primary gold are inconsistent with the provisions of the Gold (Control) Act and therefore the notice issued under the "Rules" cannot be considered as being continued under the provisions of the Gold (Control) Act, 1968.8. The above contention is untenable. There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the "Rules". That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the "Rules" were deemed as an act of Parliament. Hence on the repeal of the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab v. Mohar Singh ((1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 SCJ 25 ) and T. S. Baliah v. Income Tax Officer, Central Circle VI, Madras. ((1969) 3 SCR 65 : 72 ITR 787 : AIR 1969 SC 701 : (1969) 1 SCJ 890)9. For the reasons mentioned above we agree with the High Court that the proceedings commenced by the Collector of Central Excise by means of the notice dated June 5, 1965 must be deemed to be continuing. | 0 | 1,937 | 633 | ### Instruction:
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of 1968 was issued. That Ordinance repealed Part XII-A of the "Rules". The provisions therein were replaced by the provisions of the Ordinance. Section 117(1) of the Ordinance dealt with Repeals and Savings. Section 117 provided :"(1) As from the commencement of this Ordinance, the provisions of Part XII-A of the Defence of India Rules, 1962 shall stand repealed and upon such repeal, Section 6 of the General Clauses Act, 1897, shall apply as if the said Part were a Central Act;(2) Notwithstanding the repeal made by sub-section (1) but without prejudice to the application of Section 6 of the General Clauses Act, 1897, any notification, order, direction, appointment or declaration made or any notice, licence or certificate issued or permission, authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of part XII-A of the Defence of India Rules, 1962, so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made, issued, granted, adjudged, imposed, ordered, done or taken under the corresponding provisions of this Ordinance."5. In view of Section 117 of the Gold (Control) Ordinance, the notice issued on June 5, 1965 initiating proceedings for forfeiting the gold seized must be deemed to have continued. The provisions in the "Rules" relating to forfeiture are not inconsistent with any of the provisions of the Gold (Control) Ordinance, 1968.6. On August 24, 1968, the Parliament passed the Gold (Control) Act, 1968. The same received the assent of the President on September 1, 1968 and came into force on and from that date. By Section 116(1) of that Act, Gold (Control) Ordinance, 1968 was repealed. Section 116(2) provided :"Notwithstanding such repeal, anything done or any action taken including any notification, order or appointment made, direction given, notice licence or certificate issued, permission, authorisation or exemption granted, confiscation adjudged, penalty or fine imposed, or forfeiture ordered, whether under the Gold (Control) Ordinance, 1968 or Part XII-A of the Defence of India Rules, 1962, shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken, made, given, issued, granted, adjudged, imposed or ordered, as the case may be, under the corresponding provision of this Act, as if this Act had commenced on the 29th day of June, 1968."7. In view of Section 115(2) of the Gold (Control) Act, 1968, it was urged on behalf of the appellant that the notice issued on June 5, 1965 can no more be operative because under the Gold (Control) Act, 1968, there are no provisions for making a declaration relating to the possession of primary gold. At this stage it may be noticed that under the "Rules" every person who was in possession of primary gold, exceeding the prescribed weight was required to convert the same either into ornaments or sell the same to the licensed dealers within the time prescribed by the "Rules". Possession of primary gold thereafter exceeding the prescribed limit was an offence. That period had expired long before the Gold (Control) Act, 1968 came into force. Hence the Gold (Control) Act naturally did not make any provision for a declaration of the possession of primary gold. In view of that circumstance it was urged on behalf of the appellant that the provisions in the "Rules" requiring a declaration to be made in respect of the possession of primary gold are inconsistent with the provisions of the Gold (Control) Act and therefore the notice issued under the "Rules" cannot be considered as being continued under the provisions of the Gold (Control) Act, 1968.8. The above contention is untenable. There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the "Rules". That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the "Rules" were deemed as an act of Parliament. Hence on the repeal of the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab v. Mohar Singh ((1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 SCJ 25 ) and T. S. Baliah v. Income Tax Officer, Central Circle VI, Madras. ((1969) 3 SCR 65 : 72 ITR 787 : AIR 1969 SC 701 : (1969) 1 SCJ 890)9. For the reasons mentioned above we agree with the High Court that the proceedings commenced by the Collector of Central Excise by means of the notice dated June 5, 1965 must be deemed to be continuing.
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At this stage it may be noticed that under the "Rules" every person who was in possession of primary gold, exceeding the prescribed weight was required to convert the same either into ornaments or sell the same to the licensed dealers within the time prescribed by the "Rules". Possession of primary gold thereafter exceeding the prescribed limit was an offence. That period had expired long before the Gold (Control) Act, 1968 came into force. Hence the Gold (Control) Act naturally did not make any provision for a declaration of the possession of primary gold. In view of that circumstance it was urged on behalf of the appellant that the provisions in the "Rules" requiring a declaration to be made in respect of the possession of primary gold are inconsistent with the provisions of the Gold (Control) Act and therefore the notice issued under the "Rules" cannot be considered as being continued under the provisions of the Gold (Control) Act, 1968.8. The above contention is untenable. There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the "Rules". That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the "Rules" were deemed as an act of Parliament. Hence on the repeal of the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question - see State of Punjab v. Mohar Singh ((1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 SCJ 25 ) and T. S. Baliah v. Income Tax Officer, Central Circle VI, Madras. ((1969) 3 SCR 65 : 72 ITR 787 : AIR 1969 SC 701 : (1969) 1 SCJ 890)9. For the reasons mentioned above we agree with the High Court that the proceedings commenced by the Collector of Central Excise by means of the notice dated June 5, 1965 must be deemed to be continuing.
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M/S RAVI RANJAN DEVELOPERS PVT. LTD Vs. ADITYA KUMAR CHATTERJEE | in India. 39. The judgment of this Court in BGS SGS Soma JV (supra) cited by Mr. Sanjay Ghosh, was also rendered in the context of Section 2(2) of the A&C Act and the applicability of Part I of the A&C Act to an international commercial arbitration, where the seat of arbitration was not in India. 40. In Hindustan Construction Company Limited (supra), this Court held that once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause and only Courts within whose jurisdiction the seat was located, would have jurisdiction to the exclusion of all other Courts. In the facts and circumstances of that case this Court found that Courts at New Delhi alone would have jurisdiction for the purpose of challenge to the Award. 41. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say. 42. It can never be an absolute general proposition of law, that where an arbitration agreement says that the place of arbitration is Faridabad/Delhi and proceedings under Part I of the A&C Act are also validly initiated in Faridabad, the Court in Faridabad would, notwithstanding Section 42 of the A&C Act, lose its jurisdiction, just because arbitration is later conducted in Delhi and Award is made in Delhi. 43. This Court has perused the Development Agreement. The contention of the Respondent in the Affidavit in Opposition, that the parties to the arbitration agreement had agreed to submit to the jurisdiction of Calcutta High Court, is not correct. The parties to the arbitration agreement only agreed that the sittings of the Arbitral Tribunal would be in Kolkata. Kolkata was the venue for holding the sittings of the Arbitral Tribunal. 44. In Union of India v. Hardy Exploration and Production (India) Inc. (2019) 13 SCC 472 a three Judge Bench of this Court held that the sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration, which has a different connotation. 45. In Mankastu Impex Private Limited v. Airvisual Limited (2020) 5 SCC 399 a three Judge Bench of which one of us (Hon. A.S. Bopanna, J) was a member, held: 19. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is not just about where an institution is based or where the hearings will be held. But it is all about which court would have the supervisory power over the arbitration proceedings. In Enercon (India) Ltd. v. Enercon GmbH [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] , the Supreme Court held that : (SCC pp. 43 & 46, paras 97 & 107) [T]he location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that countrys arbitration/curial law. 20. It is well settled that seat of arbitration and venue of arbitration cannot be used interchangeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties. 46. In this case, the Development Agreement provided that the sittings of the Arbitral Tribunal would be conducted in Kolkata. As observed above, the parties never agreed to submit to the jurisdiction of Calcutta High Court in respect of disputes, nor did the parties agree upon Kolkata as the seat of arbitration. Kolkata was only the venue for sittings of the Arbitral Tribunal. 47. It is well settled that, when two or more Courts have jurisdiction to adjudicate disputes arising out of an arbitration agreement, the parties might, by agreement, decide to refer all disputes to any one Court to the exclusion of all other Courts, which might otherwise have had jurisdiction to decide the disputes. The parties cannot, however, by consent, confer jurisdiction on a Court which inherently lacked jurisdiction, as argued by Mr. Sinha. 48. In this case, the parties, as observed above did not agree to refer their disputes to the jurisdiction of the Courts in Kolkata. It was not the intention of the parties that Kolkata should be the seat of arbitration. Kolkata was only intended to be the venue for arbitration sittings. Accordingly, the Respondent himself approached the District Court at Muzaffarpur, and not a Court in Kolkata for interim protection under Section 9 of the A&C Act. The Respondent having himself invoked the jurisdiction of the District Court at Muzaffarpur, is estopped from contending that the parties had agreed to confer exclusive jurisdiction to the Calcutta High Court to the exclusion of other Courts. Neither of the parties to the agreement construed the arbitration clause to designate Kolkata as the seat of arbitration. We are constrained to hold that Calcutta High Court inherently lacks jurisdiction to entertain the application of the Respondent under Section 11(6) of the Arbitration Act. The High Court should have decided the objection raised by the Appellant, to the jurisdiction of the Calcutta High Court, to entertain the application under Section 11(6) of A&C Act, before appointing an Arbitrator. | 1[ds]19. In Kiran Singh and Ors. v. Chaman Paswan and Ors. (1955) SCR 117 : AIR 1954 SC 340 , a four Judge Bench of this Court held that it is a fundamental principle, well-established, that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of the parties.The answer to the question has to be in the negative for the reason that the Development Agreement was admittedly executed and registered outside the jurisdiction of the High Court of Calcutta, the agreement pertains to development of property located in Muzaffarpur outside jurisdiction of the Calcutta High Court. The Appellant has its registered office in Patna outside the jurisdiction of Calcutta High Court. The Appellant has no establishment and does not carry on any business within the jurisdiction of the Calcutta High Court. As admitted by the Respondent, no part of the cause of action had arisen within the jurisdiction of Calcutta High Court.25. In the present case, no suit could have been filed in any Court over which the Calcutta High Court exercises jurisdiction, since as stated above, the suit admittedly pertains to immovable property situated at Muzaffarpur in Bihar, outside the territorial jurisdiction of the Calcutta High Court and admittedly, no part of the cause of action had arisen within the territorial jurisdiction of the Calcutta High Court. The Appellant who would be in the position of Defendant in a suit, neither resides nor carries on any business within the jurisdiction of the Calcutta High Court.31. There could be no doubt, as argued by Mr. Sinha, that Section 42 of the A&C Act is mandatory. The Section has obviously been enacted to prevent the parties from being dragged into proceedings in different Courts, when more than one Court has jurisdiction. Where with respect to any arbitration agreement, any application under Part I of the A&C Act has been made in a Court, that Court alone would have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement, and the arbitral proceedings, would have to be made in that Court and in no other Court, unless, of course, the Court in which the first application had been instituted, inherently lacked jurisdiction to entertain that application. The Section which starts with a non obstante clause, is binding irrespective of any other law for the time being in force, and irrespective of any other provision in Part I of the A&C Act.32. However, Section 42 cannot possibly have any application to an application under Section 11(6), which necessarily has to be made before a High Court, unless the earlier application was also made in a High Court. In the instant case, the earlier application under Section 9 was made in the District Court at Muzaffarpur and not in the High Court of Judicature at Patna. An application under Section 11(6) of the A&C Act for appointment of Arbitrator, could not have been made in the District Court of Muzaffarpur. Therefore, Section 42 is not attracted.33. In the Affidavit in Reply filed in the High Court, the Respondent contended that the parties to the Arbitration Agreement had agreed to submit to the jurisdiction of Calcutta High Court. The Arbitration Agreement entered into by the parties clearly states that the seat and/or the place of the Arbitral Tribunal shall be Kolkata.36. In Indus Mobile Distribution Private Limited (supra), this Court referred to and relied upon the dictum of a Constitution Bench of this Court in Bharat Aluminium Company v. Kaiser Aluminium (2012) 9 SCC 552 and held that once the seat of arbitration had been fixed, that would be in the nature of an exclusive jurisdiction clause, binding the parties to specific Courts which alone could exercise supervisory powers over the arbitration. In Bharat Aluminium Company (supra) what was in issue before the Constitution Bench was the meaning of the expression place of arbitration in the context of Section 2(2) of the A&C Act, which as amended by Act 33 of 2019 is set out hereinbelow:(2) This Part shall apply where the place of arbitration is in India.3[Provided that subject to an agreement to the contrary, the provisions of Sections 9, 27 and 4[clause (b)] of sub-section (1) and sub-section (3) of Section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.]37. The question before the Constitution Bench was whether of Part-I of the A&C Act applied to arbitrations, where the place of arbitration was outside India.38. As observed by the Constitution Bench, Section 2(2) of the A&C Act places a threshold limitation on the applicability of Part-I, where the place of arbitration is not in India. The Constitution Bench in effect and substance drew a distinction between venue and place of arbitration, as contemplated in Section 20 and held that only if the agreement of the parties was construed to provide for seat/place of arbitration in India, would Part-I of the 1996 Act be applicable. If the seat/place were outside India, Part-I would not apply, even though the venue of a few sittings may have been in India, or the cause of action may have arisen in India.39. The judgment of this Court in BGS SGS Soma JV (supra) cited by Mr. Sanjay Ghosh, was also rendered in the context of Section 2(2) of the A&C Act and the applicability of Part I of the A&C Act to an international commercial arbitration, where the seat of arbitration was not in India.40. In Hindustan Construction Company Limited (supra), this Court held that once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause and only Courts within whose jurisdiction the seat was located, would have jurisdiction to the exclusion of all other Courts. In the facts and circumstances of that case this Court found that Courts at New Delhi alone would have jurisdiction for the purpose of challenge to the Award.41. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say.42. It can never be an absolute general proposition of law, that where an arbitration agreement says that the place of arbitration is Faridabad/Delhi and proceedings under Part I of the A&C Act are also validly initiated in Faridabad, the Court in Faridabad would, notwithstanding Section 42 of the A&C Act, lose its jurisdiction, just because arbitration is later conducted in Delhi and Award is made in Delhi.43. This Court has perused the Development Agreement. The contention of the Respondent in the Affidavit in Opposition, that the parties to the arbitration agreement had agreed to submit to the jurisdiction of Calcutta High Court, is not correct. The parties to the arbitration agreement only agreed that the sittings of the Arbitral Tribunal would be in Kolkata. Kolkata was the venue for holding the sittings of the Arbitral Tribunal.45. In Mankastu Impex Private Limited v. Airvisual Limited (2020) 5 SCC 399 a three Judge Bench of which one of us (Hon. A.S. Bopanna, J) was a member, held:19. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is not just about where an institution is based or where the hearings will be held. But it is all about which court would have the supervisory power over the arbitration proceedings. In Enercon (India) Ltd. v. Enercon GmbH [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] , the Supreme Court held that : (SCC pp. 43 & 46, paras 97 & 107)[T]he location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that countrys arbitration/curial law.20. It is well settled that seat of arbitration and venue of arbitration cannot be used interchangeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties.46. In this case, the Development Agreement provided that the sittings of the Arbitral Tribunal would be conducted in Kolkata. As observed above, the parties never agreed to submit to the jurisdiction of Calcutta High Court in respect of disputes, nor did the parties agree upon Kolkata as the seat of arbitration. Kolkata was only the venue for sittings of the Arbitral Tribunal.47. It is well settled that, when two or more Courts have jurisdiction to adjudicate disputes arising out of an arbitration agreement, the parties might, by agreement, decide to refer all disputes to any one Court to the exclusion of all other Courts, which might otherwise have had jurisdiction to decide the disputes. The parties cannot, however, by consent, confer jurisdiction on a Court which inherently lacked jurisdiction, as argued by Mr. Sinha.48. In this case, the parties, as observed above did not agree to refer their disputes to the jurisdiction of the Courts in Kolkata. It was not the intention of the parties that Kolkata should be the seat of arbitration. Kolkata was only intended to be the venue for arbitration sittings. Accordingly, the Respondent himself approached the District Court at Muzaffarpur, and not a Court in Kolkata for interim protection under Section 9 of the A&C Act. The Respondent having himself invoked the jurisdiction of the District Court at Muzaffarpur, is estopped from contending that the parties had agreed to confer exclusive jurisdiction to the Calcutta High Court to the exclusion of other Courts. Neither of the parties to the agreement construed the arbitration clause to designate Kolkata as the seat of arbitration. We are constrained to hold that Calcutta High Court inherently lacks jurisdiction to entertain the application of the Respondent under Section 11(6) of the Arbitration Act. The High Court should have decided the objection raised by the Appellant, to the jurisdiction of the Calcutta High Court, to entertain the application under Section 11(6) of A&C Act, before appointing an Arbitrator. | 1 | 5,896 | 2,157 | ### Instruction:
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in India. 39. The judgment of this Court in BGS SGS Soma JV (supra) cited by Mr. Sanjay Ghosh, was also rendered in the context of Section 2(2) of the A&C Act and the applicability of Part I of the A&C Act to an international commercial arbitration, where the seat of arbitration was not in India. 40. In Hindustan Construction Company Limited (supra), this Court held that once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause and only Courts within whose jurisdiction the seat was located, would have jurisdiction to the exclusion of all other Courts. In the facts and circumstances of that case this Court found that Courts at New Delhi alone would have jurisdiction for the purpose of challenge to the Award. 41. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say. 42. It can never be an absolute general proposition of law, that where an arbitration agreement says that the place of arbitration is Faridabad/Delhi and proceedings under Part I of the A&C Act are also validly initiated in Faridabad, the Court in Faridabad would, notwithstanding Section 42 of the A&C Act, lose its jurisdiction, just because arbitration is later conducted in Delhi and Award is made in Delhi. 43. This Court has perused the Development Agreement. The contention of the Respondent in the Affidavit in Opposition, that the parties to the arbitration agreement had agreed to submit to the jurisdiction of Calcutta High Court, is not correct. The parties to the arbitration agreement only agreed that the sittings of the Arbitral Tribunal would be in Kolkata. Kolkata was the venue for holding the sittings of the Arbitral Tribunal. 44. In Union of India v. Hardy Exploration and Production (India) Inc. (2019) 13 SCC 472 a three Judge Bench of this Court held that the sittings at various places are relatable to venue. It cannot be equated with the seat of arbitration or place of arbitration, which has a different connotation. 45. In Mankastu Impex Private Limited v. Airvisual Limited (2020) 5 SCC 399 a three Judge Bench of which one of us (Hon. A.S. Bopanna, J) was a member, held: 19. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is not just about where an institution is based or where the hearings will be held. But it is all about which court would have the supervisory power over the arbitration proceedings. In Enercon (India) Ltd. v. Enercon GmbH [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] , the Supreme Court held that : (SCC pp. 43 & 46, paras 97 & 107) [T]he location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that countrys arbitration/curial law. 20. It is well settled that seat of arbitration and venue of arbitration cannot be used interchangeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties. 46. In this case, the Development Agreement provided that the sittings of the Arbitral Tribunal would be conducted in Kolkata. As observed above, the parties never agreed to submit to the jurisdiction of Calcutta High Court in respect of disputes, nor did the parties agree upon Kolkata as the seat of arbitration. Kolkata was only the venue for sittings of the Arbitral Tribunal. 47. It is well settled that, when two or more Courts have jurisdiction to adjudicate disputes arising out of an arbitration agreement, the parties might, by agreement, decide to refer all disputes to any one Court to the exclusion of all other Courts, which might otherwise have had jurisdiction to decide the disputes. The parties cannot, however, by consent, confer jurisdiction on a Court which inherently lacked jurisdiction, as argued by Mr. Sinha. 48. In this case, the parties, as observed above did not agree to refer their disputes to the jurisdiction of the Courts in Kolkata. It was not the intention of the parties that Kolkata should be the seat of arbitration. Kolkata was only intended to be the venue for arbitration sittings. Accordingly, the Respondent himself approached the District Court at Muzaffarpur, and not a Court in Kolkata for interim protection under Section 9 of the A&C Act. The Respondent having himself invoked the jurisdiction of the District Court at Muzaffarpur, is estopped from contending that the parties had agreed to confer exclusive jurisdiction to the Calcutta High Court to the exclusion of other Courts. Neither of the parties to the agreement construed the arbitration clause to designate Kolkata as the seat of arbitration. We are constrained to hold that Calcutta High Court inherently lacks jurisdiction to entertain the application of the Respondent under Section 11(6) of the Arbitration Act. The High Court should have decided the objection raised by the Appellant, to the jurisdiction of the Calcutta High Court, to entertain the application under Section 11(6) of A&C Act, before appointing an Arbitrator.
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in Section 20 and held that only if the agreement of the parties was construed to provide for seat/place of arbitration in India, would Part-I of the 1996 Act be applicable. If the seat/place were outside India, Part-I would not apply, even though the venue of a few sittings may have been in India, or the cause of action may have arisen in India.39. The judgment of this Court in BGS SGS Soma JV (supra) cited by Mr. Sanjay Ghosh, was also rendered in the context of Section 2(2) of the A&C Act and the applicability of Part I of the A&C Act to an international commercial arbitration, where the seat of arbitration was not in India.40. In Hindustan Construction Company Limited (supra), this Court held that once the seat of arbitration is designated, the same operates as an exclusive jurisdiction clause and only Courts within whose jurisdiction the seat was located, would have jurisdiction to the exclusion of all other Courts. In the facts and circumstances of that case this Court found that Courts at New Delhi alone would have jurisdiction for the purpose of challenge to the Award.41. It is well settled that a judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say.42. It can never be an absolute general proposition of law, that where an arbitration agreement says that the place of arbitration is Faridabad/Delhi and proceedings under Part I of the A&C Act are also validly initiated in Faridabad, the Court in Faridabad would, notwithstanding Section 42 of the A&C Act, lose its jurisdiction, just because arbitration is later conducted in Delhi and Award is made in Delhi.43. This Court has perused the Development Agreement. The contention of the Respondent in the Affidavit in Opposition, that the parties to the arbitration agreement had agreed to submit to the jurisdiction of Calcutta High Court, is not correct. The parties to the arbitration agreement only agreed that the sittings of the Arbitral Tribunal would be in Kolkata. Kolkata was the venue for holding the sittings of the Arbitral Tribunal.45. In Mankastu Impex Private Limited v. Airvisual Limited (2020) 5 SCC 399 a three Judge Bench of which one of us (Hon. A.S. Bopanna, J) was a member, held:19. The seat of arbitration is a vital aspect of any arbitration proceedings. Significance of the seat of arbitration is that it determines the applicable law when deciding the arbitration proceedings and arbitration procedure as well as judicial review over the arbitration award. The situs is not just about where an institution is based or where the hearings will be held. But it is all about which court would have the supervisory power over the arbitration proceedings. In Enercon (India) Ltd. v. Enercon GmbH [Enercon (India) Ltd. v. Enercon GmbH, (2014) 5 SCC 1 : (2014) 3 SCC (Civ) 59] , the Supreme Court held that : (SCC pp. 43 & 46, paras 97 & 107)[T]he location of the seat will determine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the seat normally carries with it the choice of that countrys arbitration/curial law.20. It is well settled that seat of arbitration and venue of arbitration cannot be used interchangeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties.46. In this case, the Development Agreement provided that the sittings of the Arbitral Tribunal would be conducted in Kolkata. As observed above, the parties never agreed to submit to the jurisdiction of Calcutta High Court in respect of disputes, nor did the parties agree upon Kolkata as the seat of arbitration. Kolkata was only the venue for sittings of the Arbitral Tribunal.47. It is well settled that, when two or more Courts have jurisdiction to adjudicate disputes arising out of an arbitration agreement, the parties might, by agreement, decide to refer all disputes to any one Court to the exclusion of all other Courts, which might otherwise have had jurisdiction to decide the disputes. The parties cannot, however, by consent, confer jurisdiction on a Court which inherently lacked jurisdiction, as argued by Mr. Sinha.48. In this case, the parties, as observed above did not agree to refer their disputes to the jurisdiction of the Courts in Kolkata. It was not the intention of the parties that Kolkata should be the seat of arbitration. Kolkata was only intended to be the venue for arbitration sittings. Accordingly, the Respondent himself approached the District Court at Muzaffarpur, and not a Court in Kolkata for interim protection under Section 9 of the A&C Act. The Respondent having himself invoked the jurisdiction of the District Court at Muzaffarpur, is estopped from contending that the parties had agreed to confer exclusive jurisdiction to the Calcutta High Court to the exclusion of other Courts. Neither of the parties to the agreement construed the arbitration clause to designate Kolkata as the seat of arbitration. We are constrained to hold that Calcutta High Court inherently lacks jurisdiction to entertain the application of the Respondent under Section 11(6) of the Arbitration Act. The High Court should have decided the objection raised by the Appellant, to the jurisdiction of the Calcutta High Court, to entertain the application under Section 11(6) of A&C Act, before appointing an Arbitrator.
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Sawai Singhai Nirmal Chand Vs. Union Of India | is next contended that no notice can be said to be required for suits under O. 21, R. 63 because the principal object for enacting S. 80 is absent in the case of such suits. The argument is that the requirement about the statutory notice prescribed by S. 80 proceeds on the basis that it is desirable to give such notice to afford the Government an opportunity to consider whether the claims made against it should be settled or not. The Legislature thought that if the Government is informed beforehand about civil actions intended to be taken against it, it may in some cases avoid unnecessary litigation by accepting the claims if it is satisfied that the claims are well founded. In the case of a suit under O. 21, R. 63, there is hardly any need to give such a notice, because the Government was already a party in the investigation proceedings and it knows what the appellants case was in regard to the attachment sought to be levied at its instance. Since the respondent knows all about the claim of the appellant in regard to the properties in question, it is futile and unnecessary to require that a notice should be given to the respondent before a suit can be filed by the appellant under O. 21, R. 63.12. In support of this argument, Mr. Karkhanis has relied on a decision of this Court in Amar Nath Dogra v. Union of India, (1963) 1 SCR 657 : (AIR 1963 SC 424 ). In that case, one of the questions which the Court had to consider was whether, if a suit against the Government is withdrawn and a subsequent suit is filed substantially on the same cause of action, the notice given by the plaintiff prior to the institution of the first suit could be said to satisfy the requirements of S. 80 of the Code in respect of the second suit, and this question was answered in the affirmative. While upholding the appellants contention that the first notice should serve to meet the requirements of S. 80, this Court, no doubt, observed that the main purpose of giving the notice is to give previous intimation to the Government about the nature of the claim which a party wants to make against it. But we do not see how the purpose or the reason for requiring the notice can alter the effect of the plain words used in S. 80. What this Court held in the case of Amar Nath Dogra (supra) was that the notice before the institution of the first suit can be said to be a good notice even for the second suit: and that means that the notice was necessary to be given under S. 80. But it was not necessary to repeat it in the circumstances of the case.13. It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent, and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of S. 80, common sense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under S 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to default the appellants claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of S. 80.14. It will be recalled that prior to the decision of the Privy Council in Bhagchand Dagdusa v. Secretary of State, 54 Ind App 388 there was a sharp difference of opinion among the Indian High Courts on the question as to whether S. 80 applied to suits where injunction was claimed. The Privy Council held that S. 80 applied "to all forms of suit and whatever the relief sought, including a suit for an injunction. In dealing with the question about the construction of S. 80, the Privy Council took notice of the fact that some of the decisions which attempted to exclude from the purview of S. 80 suits for injunction, were influenced by the "assumption as to the practical objects with which it was framed". They also proceeded on the basis that S. 80 was a rule of procedure and that any construction which may lead to injustice is one which ought not to be adopted, since it would be repugnant to the notion of Justice. Having noticed these grounds on which an attempt was judicially made to except from the purview of S. 80 suits, for instance, in which injunction was claimed Viscount Summer, who spoke for the Privy Council, observed that "the Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words" and he added that "section 80 is express, explicit and mandatory, and it admits of no implications or exceptions". That is why it was held that a suit in which an injunction is prayed is still a suit within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. In our opinion, these observations apply with equal force in dealing with the question as to whether a suit under O. 21, R. 63 is outside the purview of S. 80 of the Code.15. It appears that on this question, there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under O. 21, R. 63 did not attract the provisions of S. 80, is inconsistent with the plain, categorical and unambiguous words used by it.16. | 1[ds]5. Let us begin by referring to the provisions of O. 21, Rules 58 and 63. O. 21, R. 58 deals with the investigation of claims to, and objections to attachment of, attached properties. It is under this rule that a person whose property is wrongfully attached in execution of a decree passed against another, is entitled to object to the said attachment. On such an application being made, a summary enquiry follows and the attachment is either raised or is not raised and the objection to attachment is allowed or is not allowed according as the Court trying the application is satisfied that the objector is or is not justified in objecting to the attachment. After the final order is passed one way or the other as a result of the investigation made in such proceedings, R. 63 comes into operation. It provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. It is thus plain that where an order is passed in objection proceedings commencing with R. 58, it would be final subject to the result of the suit which a party aggrieved by such order may institute, and that means that if a party is aggrieved by an order passed in these proceedings, he can have the said order set aside or reversed by bringing a suit as provided by R. 63 itself and such a suit has to be filed within one year from the date of the impugnedon a fair and reasonable construction of S. 80, we do not see how it is possible to hold that a suit filed under O. 21, R. 63 can be taken out of the provisions of S. 80 of the Code. If we were to accede to the argument urged before us by Mr. Karkhanis for the respondent, we would, in substance, have to add certain words of exception in S. 80 itself, and that plainly is notthe argument that the present suit is outside the purview of S. 80 of the Code because it is a continuation of the attachment proceedings must be rejected.In this connection, we ought to bear in mind that the scope of the enquiry under O. 21, R. 58 is very limited and is confined to question of possession as therein indicated while suit brought under O 21. R. 63 would be concerned not only with the question of possession, but also with the question of title. Thus the scope of the suit is very different from and wider than that of the investigation under O. 21, R 58. In fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21, R.63.Therefore, it would be impossible to hold that such a suit is outside the purview of S. 80 of the Code.It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent, and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of S. 80, common sense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under S 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to default the appellants claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of S. 80.14. Itappears that on this question, there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under O. 21, R. 63 did not attract the provisions of S. 80, is inconsistent with the plain, categorical and unambiguous words used by it. | 1 | 3,526 | 785 | ### Instruction:
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is next contended that no notice can be said to be required for suits under O. 21, R. 63 because the principal object for enacting S. 80 is absent in the case of such suits. The argument is that the requirement about the statutory notice prescribed by S. 80 proceeds on the basis that it is desirable to give such notice to afford the Government an opportunity to consider whether the claims made against it should be settled or not. The Legislature thought that if the Government is informed beforehand about civil actions intended to be taken against it, it may in some cases avoid unnecessary litigation by accepting the claims if it is satisfied that the claims are well founded. In the case of a suit under O. 21, R. 63, there is hardly any need to give such a notice, because the Government was already a party in the investigation proceedings and it knows what the appellants case was in regard to the attachment sought to be levied at its instance. Since the respondent knows all about the claim of the appellant in regard to the properties in question, it is futile and unnecessary to require that a notice should be given to the respondent before a suit can be filed by the appellant under O. 21, R. 63.12. In support of this argument, Mr. Karkhanis has relied on a decision of this Court in Amar Nath Dogra v. Union of India, (1963) 1 SCR 657 : (AIR 1963 SC 424 ). In that case, one of the questions which the Court had to consider was whether, if a suit against the Government is withdrawn and a subsequent suit is filed substantially on the same cause of action, the notice given by the plaintiff prior to the institution of the first suit could be said to satisfy the requirements of S. 80 of the Code in respect of the second suit, and this question was answered in the affirmative. While upholding the appellants contention that the first notice should serve to meet the requirements of S. 80, this Court, no doubt, observed that the main purpose of giving the notice is to give previous intimation to the Government about the nature of the claim which a party wants to make against it. But we do not see how the purpose or the reason for requiring the notice can alter the effect of the plain words used in S. 80. What this Court held in the case of Amar Nath Dogra (supra) was that the notice before the institution of the first suit can be said to be a good notice even for the second suit: and that means that the notice was necessary to be given under S. 80. But it was not necessary to repeat it in the circumstances of the case.13. It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent, and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of S. 80, common sense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under S 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to default the appellants claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of S. 80.14. It will be recalled that prior to the decision of the Privy Council in Bhagchand Dagdusa v. Secretary of State, 54 Ind App 388 there was a sharp difference of opinion among the Indian High Courts on the question as to whether S. 80 applied to suits where injunction was claimed. The Privy Council held that S. 80 applied "to all forms of suit and whatever the relief sought, including a suit for an injunction. In dealing with the question about the construction of S. 80, the Privy Council took notice of the fact that some of the decisions which attempted to exclude from the purview of S. 80 suits for injunction, were influenced by the "assumption as to the practical objects with which it was framed". They also proceeded on the basis that S. 80 was a rule of procedure and that any construction which may lead to injustice is one which ought not to be adopted, since it would be repugnant to the notion of Justice. Having noticed these grounds on which an attempt was judicially made to except from the purview of S. 80 suits, for instance, in which injunction was claimed Viscount Summer, who spoke for the Privy Council, observed that "the Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words" and he added that "section 80 is express, explicit and mandatory, and it admits of no implications or exceptions". That is why it was held that a suit in which an injunction is prayed is still a suit within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. In our opinion, these observations apply with equal force in dealing with the question as to whether a suit under O. 21, R. 63 is outside the purview of S. 80 of the Code.15. It appears that on this question, there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under O. 21, R. 63 did not attract the provisions of S. 80, is inconsistent with the plain, categorical and unambiguous words used by it.16.
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5. Let us begin by referring to the provisions of O. 21, Rules 58 and 63. O. 21, R. 58 deals with the investigation of claims to, and objections to attachment of, attached properties. It is under this rule that a person whose property is wrongfully attached in execution of a decree passed against another, is entitled to object to the said attachment. On such an application being made, a summary enquiry follows and the attachment is either raised or is not raised and the objection to attachment is allowed or is not allowed according as the Court trying the application is satisfied that the objector is or is not justified in objecting to the attachment. After the final order is passed one way or the other as a result of the investigation made in such proceedings, R. 63 comes into operation. It provides that where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. It is thus plain that where an order is passed in objection proceedings commencing with R. 58, it would be final subject to the result of the suit which a party aggrieved by such order may institute, and that means that if a party is aggrieved by an order passed in these proceedings, he can have the said order set aside or reversed by bringing a suit as provided by R. 63 itself and such a suit has to be filed within one year from the date of the impugnedon a fair and reasonable construction of S. 80, we do not see how it is possible to hold that a suit filed under O. 21, R. 63 can be taken out of the provisions of S. 80 of the Code. If we were to accede to the argument urged before us by Mr. Karkhanis for the respondent, we would, in substance, have to add certain words of exception in S. 80 itself, and that plainly is notthe argument that the present suit is outside the purview of S. 80 of the Code because it is a continuation of the attachment proceedings must be rejected.In this connection, we ought to bear in mind that the scope of the enquiry under O. 21, R. 58 is very limited and is confined to question of possession as therein indicated while suit brought under O 21. R. 63 would be concerned not only with the question of possession, but also with the question of title. Thus the scope of the suit is very different from and wider than that of the investigation under O. 21, R 58. In fact, it is the order made in the said investigation that is the cause of action of the suit under O. 21, R.63.Therefore, it would be impossible to hold that such a suit is outside the purview of S. 80 of the Code.It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice being defective in one particular or another makes the suit incompetent, and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of S. 80, common sense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under S 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to default the appellants claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of S. 80.14. Itappears that on this question, there has been a divergence of judicial opinion in India. But, in our opinion, the view that suits under O. 21, R. 63 did not attract the provisions of S. 80, is inconsistent with the plain, categorical and unambiguous words used by it.
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Commissioner Of Sales Tax, U.P Vs. M/S. Sarin Textiles Mills | answer the description of "yarn" in the ordinary commercial sense, must have two characteristics. Firstly, it should be a spun strand. Secondly, such strand should be primarily meant for use in weaving, knitting or rope-making.15. Now, it is an undisputed fact, in the instant case that "woollen carpet kati" is unspun fibre. It lacks the first characteristic of "yarn". It is therefore possible to say that by itself, the expression "yarn of all kinds" in the notifications, quoted above, would not cover unspun fibres. But the succeeding phrase "including unspun fibre used in weaving" qualifies the preceding expression "yarn of all kinds". This phrase, which, in one sense, extends the connotation of "yarn" by including in it unspun fibre, pinpoints and highlights, on the other hand, the usability of such unspun fibre in weaving as a determinative circumstance.16. The question thus narrows down into the issue: Is woollen carpet kati - which is admittedly unspum fibre" used in weaving" within the contemplation of these notifications ? Again, "weaving" has not been defined in these notifications or the other statuary provisions. We have therefore to fall back upon its ordinary dictionary meaning. In that sense, weaving implies the process of forming thread into fabric byinterlacing. "The most important method by which wool products are produced is weaving, theinterlacingat right angles of two or more systems of threads. Variations are almost limitless but all are derived from three basic weaves, plain, satin and twill. Hundreds of yarns, found on large spool or beam form the warp. Each yarn is drawn through the eye of a heddle or wire mounted on a harness frame. The alternate raising and lowering of the frames, each with its hundreds of heddles controlling the warp yarns, forms the shed, the space through which the weft or filling yarn is carried by the shuttle, a long streamlined box holding a bobbin of yarn in its hollowed center. Each trip of the shuttle is called a pick. After each pick the harness frames shift position in accordance with the pre-determined pattern, producing a new shed or different combination of raised and lowered warp yarns. The filling yarn are beaten down with a weavers reed to make a tighter weave". (Encyclopaedia Brittanica Vol. 23, p. 342, 1971 Edn.)17. Thus "weaving" is the process of combining warp and weft components. (respectively lengthwise and cross- wise) to make a woven structure. The threads that lie lengthwise are called the warp. The other threads which are combined with the warp and lie widthwise, are called the "weft" also known as "wool" . An individual thread from the warp of indefinite length, is called an end; each individual length of weft from one edge to the other is called a pick. Consecutive picks are usually consecutive lengths of one piece of weft yarn that is repeatedly folded back on itself. In all methods of weaving before a length of weft is inserted in the warp, the warp is separated, over a short length extending from the cloth already formed, into two sheds. The process is called shedding. The sequence of primary operations in one weaving cycle is thus shedding, picking and beating in (Encyclopaedis Brittanica Vol, 23, page 342)."Weaving is differentiated from both warp and weft, knitting from braiding, and from net making, in that these processes all make use of only one set of elements. In addition, there are geometrical differences". (Encyclopaedia ibid)18. The ground having been cleared, it is to be seen whether the process by which wollen carpet kati is used in preparation of carpets, can properly be called"weaving".19. Now, the facts found on the basis of evidence adduced by the Additional Appellate Commissioner and the Judge (Revisions) Sales Tax are that such woollen kati are short cut pieces of unspun fibre (each of which according to the aforesaid Encyclopaedia is about 2 inches in length).It has very little tensile strength and is not used as it is not capable of being used - for weaving, knitting or rope- making. The only use to which the kati or pile is put is by attaching each piece by hand around two warp threads. The kati is not a component of the basic fabric of the carpet. It is not an integral constituent of the warp and weft of the carpet which consists of different spun fibre of great tensile strength i.e. of yarn. The process of lopping or knotting theses pile tuffs is different and distinct from the process of lengthwise and crosswise combining of warp and weft components, which makes the woven basic structure of the carpet.20.In view of these primary facts found by the taxing authorities, the conclusion is inescapable, that woolen carpet kati is neither "yarn" nor "unspun fibre used in weaving" withing the contemplation of the aforesaid notifications issued under Section 3-A.21. This takes us to be the second question as to whether such kati would fall within the ambit of "woollen goods" under Entry 46 of Notification (iii) set out above.22.Here also, we find ourselves in agreement with the Division Bench of the High Court that woollen carpet kati is only raw material from which "woollen goods" are prepared. In this connection it is to be noted that yarn used in weaving the warp and weft of carpets, or woollen fibre used in weaving has been made taxable at a far lower rate than "woollen goods" under the notifications. It could never be the intention that a mere component or raw material used in the manufacture of woollen goods by a manual process not being a process of weaving, should be taxed at a far higher rate, by treating the same as a finished "woollen goods."23. For the foregoing reasons, we are of the opinion that woollen carpet kati" is neither "yarn" nor "woollen good" falling under the aforesaid notifications issued under Section 3-A. It is an unclassified item and its turnover is liable to tax at the rate of 2% under Section 3 of the Act. | 0[ds]14. Thus, a fibre in order to answer the description of "yarn" in the ordinary commercial sense, must have two characteristics. Firstly, it should be a spun strand. Secondly, such strand should be primarily meant for use in weaving, knitting or rope-making.15. Now, it is an undisputed fact, in the instant case that "woollen carpet kati" is unspun fibre. It lacks the first characteristic of "yarn". It is therefore possible to say that by itself, the expression "yarn of all kinds" in the notifications, quoted above, would not cover unspun fibres. But the succeeding phrase "including unspun fibre used in weaving" qualifies the preceding expression "yarn of all kinds". This phrase, which, in one sense, extends the connotation of "yarn" by including in it unspun fibre, pinpoints and highlights, on the other hand, the usability of such unspun fibre in weaving as a determinative circumstance.Thus "weaving" is the process of combining warp and weft components. (respectively lengthwise and cross- wise) to make a woven structure.n view of these primary facts found by the taxing authorities, the conclusion is inescapable, that woolen carpet kati is neither "yarn" nor "unspun fibre used in weaving" withing the contemplation of the aforesaid notifications issued under Sectionalso, we find ourselves in agreement with the Division Bench of the High Court that woollen carpet kati is only raw material from which "woollen goods" are prepared. In this connection it is to be noted that yarn used in weaving the warp and weft of carpets, or woollen fibre used in weaving has been made taxable at a far lower rate than "woollen goods" under the notifications. It could never be the intention that a mere component or raw material used in the manufacture of woollen goods by a manual process not being a process of weaving, should be taxed at a far higher rate, by treating the same as a finished "woollen goods."23. For the foregoing reasons, we are of the opinion that woollen carpet kati" is neither "yarn" nor "woollen good" falling under the aforesaid notifications issued under Section 3-A. It is an unclassified item and its turnover is liable to tax at the rate of 2% under Section 3 of the Act. | 0 | 2,367 | 443 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
answer the description of "yarn" in the ordinary commercial sense, must have two characteristics. Firstly, it should be a spun strand. Secondly, such strand should be primarily meant for use in weaving, knitting or rope-making.15. Now, it is an undisputed fact, in the instant case that "woollen carpet kati" is unspun fibre. It lacks the first characteristic of "yarn". It is therefore possible to say that by itself, the expression "yarn of all kinds" in the notifications, quoted above, would not cover unspun fibres. But the succeeding phrase "including unspun fibre used in weaving" qualifies the preceding expression "yarn of all kinds". This phrase, which, in one sense, extends the connotation of "yarn" by including in it unspun fibre, pinpoints and highlights, on the other hand, the usability of such unspun fibre in weaving as a determinative circumstance.16. The question thus narrows down into the issue: Is woollen carpet kati - which is admittedly unspum fibre" used in weaving" within the contemplation of these notifications ? Again, "weaving" has not been defined in these notifications or the other statuary provisions. We have therefore to fall back upon its ordinary dictionary meaning. In that sense, weaving implies the process of forming thread into fabric byinterlacing. "The most important method by which wool products are produced is weaving, theinterlacingat right angles of two or more systems of threads. Variations are almost limitless but all are derived from three basic weaves, plain, satin and twill. Hundreds of yarns, found on large spool or beam form the warp. Each yarn is drawn through the eye of a heddle or wire mounted on a harness frame. The alternate raising and lowering of the frames, each with its hundreds of heddles controlling the warp yarns, forms the shed, the space through which the weft or filling yarn is carried by the shuttle, a long streamlined box holding a bobbin of yarn in its hollowed center. Each trip of the shuttle is called a pick. After each pick the harness frames shift position in accordance with the pre-determined pattern, producing a new shed or different combination of raised and lowered warp yarns. The filling yarn are beaten down with a weavers reed to make a tighter weave". (Encyclopaedia Brittanica Vol. 23, p. 342, 1971 Edn.)17. Thus "weaving" is the process of combining warp and weft components. (respectively lengthwise and cross- wise) to make a woven structure. The threads that lie lengthwise are called the warp. The other threads which are combined with the warp and lie widthwise, are called the "weft" also known as "wool" . An individual thread from the warp of indefinite length, is called an end; each individual length of weft from one edge to the other is called a pick. Consecutive picks are usually consecutive lengths of one piece of weft yarn that is repeatedly folded back on itself. In all methods of weaving before a length of weft is inserted in the warp, the warp is separated, over a short length extending from the cloth already formed, into two sheds. The process is called shedding. The sequence of primary operations in one weaving cycle is thus shedding, picking and beating in (Encyclopaedis Brittanica Vol, 23, page 342)."Weaving is differentiated from both warp and weft, knitting from braiding, and from net making, in that these processes all make use of only one set of elements. In addition, there are geometrical differences". (Encyclopaedia ibid)18. The ground having been cleared, it is to be seen whether the process by which wollen carpet kati is used in preparation of carpets, can properly be called"weaving".19. Now, the facts found on the basis of evidence adduced by the Additional Appellate Commissioner and the Judge (Revisions) Sales Tax are that such woollen kati are short cut pieces of unspun fibre (each of which according to the aforesaid Encyclopaedia is about 2 inches in length).It has very little tensile strength and is not used as it is not capable of being used - for weaving, knitting or rope- making. The only use to which the kati or pile is put is by attaching each piece by hand around two warp threads. The kati is not a component of the basic fabric of the carpet. It is not an integral constituent of the warp and weft of the carpet which consists of different spun fibre of great tensile strength i.e. of yarn. The process of lopping or knotting theses pile tuffs is different and distinct from the process of lengthwise and crosswise combining of warp and weft components, which makes the woven basic structure of the carpet.20.In view of these primary facts found by the taxing authorities, the conclusion is inescapable, that woolen carpet kati is neither "yarn" nor "unspun fibre used in weaving" withing the contemplation of the aforesaid notifications issued under Section 3-A.21. This takes us to be the second question as to whether such kati would fall within the ambit of "woollen goods" under Entry 46 of Notification (iii) set out above.22.Here also, we find ourselves in agreement with the Division Bench of the High Court that woollen carpet kati is only raw material from which "woollen goods" are prepared. In this connection it is to be noted that yarn used in weaving the warp and weft of carpets, or woollen fibre used in weaving has been made taxable at a far lower rate than "woollen goods" under the notifications. It could never be the intention that a mere component or raw material used in the manufacture of woollen goods by a manual process not being a process of weaving, should be taxed at a far higher rate, by treating the same as a finished "woollen goods."23. For the foregoing reasons, we are of the opinion that woollen carpet kati" is neither "yarn" nor "woollen good" falling under the aforesaid notifications issued under Section 3-A. It is an unclassified item and its turnover is liable to tax at the rate of 2% under Section 3 of the Act.
### Response:
0
### Explanation:
14. Thus, a fibre in order to answer the description of "yarn" in the ordinary commercial sense, must have two characteristics. Firstly, it should be a spun strand. Secondly, such strand should be primarily meant for use in weaving, knitting or rope-making.15. Now, it is an undisputed fact, in the instant case that "woollen carpet kati" is unspun fibre. It lacks the first characteristic of "yarn". It is therefore possible to say that by itself, the expression "yarn of all kinds" in the notifications, quoted above, would not cover unspun fibres. But the succeeding phrase "including unspun fibre used in weaving" qualifies the preceding expression "yarn of all kinds". This phrase, which, in one sense, extends the connotation of "yarn" by including in it unspun fibre, pinpoints and highlights, on the other hand, the usability of such unspun fibre in weaving as a determinative circumstance.Thus "weaving" is the process of combining warp and weft components. (respectively lengthwise and cross- wise) to make a woven structure.n view of these primary facts found by the taxing authorities, the conclusion is inescapable, that woolen carpet kati is neither "yarn" nor "unspun fibre used in weaving" withing the contemplation of the aforesaid notifications issued under Sectionalso, we find ourselves in agreement with the Division Bench of the High Court that woollen carpet kati is only raw material from which "woollen goods" are prepared. In this connection it is to be noted that yarn used in weaving the warp and weft of carpets, or woollen fibre used in weaving has been made taxable at a far lower rate than "woollen goods" under the notifications. It could never be the intention that a mere component or raw material used in the manufacture of woollen goods by a manual process not being a process of weaving, should be taxed at a far higher rate, by treating the same as a finished "woollen goods."23. For the foregoing reasons, we are of the opinion that woollen carpet kati" is neither "yarn" nor "woollen good" falling under the aforesaid notifications issued under Section 3-A. It is an unclassified item and its turnover is liable to tax at the rate of 2% under Section 3 of the Act.
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The State Of Madhya Bharat (Now The State Of Madhya Prades Vs. Hiralalji | Subba Rao, J.1. This appeal by special leave raises the question of the interpretation of Item No. 39 of the Notification No. 58, dated October 24, 1953, hereinafter called the Notification, issued by the Government of Madhya Bharat under the Madhya Bharat Sales Tax Act, Samvat 2007 (Act No. 30 of 1950), hereinafter called the Act.2. The facts are as follows: Hiralal, the respondent, is the manager of a joint Hindu family carrying on business in the name and style of "Messrs Tilokchand Kalyanmal". The joint family owns a re-rolling mill situated in Indore City called the Central India Iron and Steel Company. The said family purchases scrap iron locally and imports iron plates from outside and after converting them into bars, flats and plates in the Mills sells them in the market. The respondent made a default in furnishing the returns prescribed by S. 7 (1) of the Act for the period April 1, 1954, to March 31, 1955. On February 27, 1956, the Sales Tax Officer, Indore, determined the taxable turnover at Rs. 2,26,000 and the sales tax payable thereon at Rs. 8,000; and he also imposed a penalty of Rs. 1,000 under S. 14 (1) (c) of the Act. On the same day he issued demand notices to the respondent for the payment of the said sales-tax and the penalty. On September 10, 1956, the respondent filed a petition in the High Court of Madhya Bharat (afterwards Madhya Pradesh) under Arts. 226 and 227 of the Constitution for the issue of appropriate writs quashing the assessment of tax and penalty and to restrain the State from giving effect to the said orders of the Sales Tax Officer. A Division Bench of the High Court held that the iron bars, flats and plates sold by the respondent were exempted from sales tax under the Notification. In that view, the orders of the Sales Tax Officer were quashed. The State has filed the present appeal, by special leave.3. The only question in this appeal is whether the said iron bars, flats and plates are not iron and steel within the meaning of Item No. 39 of the Notification.4. Parliament enacted Essential Goods (Declaration and Regulation of Tax on Sales or Purchases) Act, 1952 (Act No. 52 of 1952), which came into force on August 9, 1952. In Schedule I of the said Act, iron and steel were declared essential for the life of the community. Thereafter, the Government of Madhya Bharat, in exercise of the powers conferred by S. 5 of the Act, issued the Notification as also Notification No. 59, dated October 24, 1953. The material part of Schedule I of Notification 58 reads:"No tax shall be payable on the sale of the following goods. -S. No. Description of goods.39. Iron and steel."5. Notification No. 59 described the goods sales of which were taxable at particular rates. Schedule IV thereof reads:"List of articles under S. 5 of the Madhya Bharat Sales Tax Act, 1950, on the assessable sale proceeds of which sales tax at the rate of Rs. 3-2-0 per cent. shall be payable, showing the nature of articles on which the tax is payable."S. No. Name of article Stage of sale in Madhya Bharat at which the tax is payable.9........ goods prepared from any metal other than gold and silver ...............Sale by importer or producer6. Learned counsel for the State contends that the expression "iron and steel" means iron and steel in the original condition and not iron and steel in the shape of bars, flats and plates. In our view, this contention is not sound. A comparison of the said two Notification brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel: while the former is exempted from tax, the latter is taxed. Therefore, iron and steel used as raw material for manufacturing other goods are exempted from taxation. So long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased by the respondent was merely re-rolled into bars, flats and plates. They were processed for convenience of sale. The raw materials were only re-rolled to give them attractive and acceptable forms. They did not in the process lose their character as iron and steel. The dealer sold "iron and steel" in the shape of bars, flats and plates and the customer purchased "iron and steel" in that shape. We, therefore, hold that the bars, flats and plates sold by the assessee are iron and steel exempted under the Notification. The conclusion arrived at by the High Court is correct.7 | 0[ds]6. Learned counsel for the State contends that the expression "iron and steel" means iron and steel in the original condition and not iron and steel in the shape of bars, flats and plates.In our view, this contention is not sound. A comparison of the said two Notification brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel: while the former is exempted from tax, the latter is taxed. Therefore, iron and steel used as raw material for manufacturing other goods are exempted from taxation. So long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased by the respondent was merely re-rolled into bars, flats and plates. They were processed for convenience of sale. The raw materials were only re-rolled to give them attractive and acceptable forms. They did not in the process lose their character as iron and steel. The dealer sold "iron and steel" in the shape of bars, flats and plates and the customer purchased "iron and steel" in that shape. We, therefore, hold that the bars, flats and plates sold by the assessee are iron and steel exempted under the Notification. The conclusion arrived at by the High Court is correct. | 0 | 899 | 244 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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Subba Rao, J.1. This appeal by special leave raises the question of the interpretation of Item No. 39 of the Notification No. 58, dated October 24, 1953, hereinafter called the Notification, issued by the Government of Madhya Bharat under the Madhya Bharat Sales Tax Act, Samvat 2007 (Act No. 30 of 1950), hereinafter called the Act.2. The facts are as follows: Hiralal, the respondent, is the manager of a joint Hindu family carrying on business in the name and style of "Messrs Tilokchand Kalyanmal". The joint family owns a re-rolling mill situated in Indore City called the Central India Iron and Steel Company. The said family purchases scrap iron locally and imports iron plates from outside and after converting them into bars, flats and plates in the Mills sells them in the market. The respondent made a default in furnishing the returns prescribed by S. 7 (1) of the Act for the period April 1, 1954, to March 31, 1955. On February 27, 1956, the Sales Tax Officer, Indore, determined the taxable turnover at Rs. 2,26,000 and the sales tax payable thereon at Rs. 8,000; and he also imposed a penalty of Rs. 1,000 under S. 14 (1) (c) of the Act. On the same day he issued demand notices to the respondent for the payment of the said sales-tax and the penalty. On September 10, 1956, the respondent filed a petition in the High Court of Madhya Bharat (afterwards Madhya Pradesh) under Arts. 226 and 227 of the Constitution for the issue of appropriate writs quashing the assessment of tax and penalty and to restrain the State from giving effect to the said orders of the Sales Tax Officer. A Division Bench of the High Court held that the iron bars, flats and plates sold by the respondent were exempted from sales tax under the Notification. In that view, the orders of the Sales Tax Officer were quashed. The State has filed the present appeal, by special leave.3. The only question in this appeal is whether the said iron bars, flats and plates are not iron and steel within the meaning of Item No. 39 of the Notification.4. Parliament enacted Essential Goods (Declaration and Regulation of Tax on Sales or Purchases) Act, 1952 (Act No. 52 of 1952), which came into force on August 9, 1952. In Schedule I of the said Act, iron and steel were declared essential for the life of the community. Thereafter, the Government of Madhya Bharat, in exercise of the powers conferred by S. 5 of the Act, issued the Notification as also Notification No. 59, dated October 24, 1953. The material part of Schedule I of Notification 58 reads:"No tax shall be payable on the sale of the following goods. -S. No. Description of goods.39. Iron and steel."5. Notification No. 59 described the goods sales of which were taxable at particular rates. Schedule IV thereof reads:"List of articles under S. 5 of the Madhya Bharat Sales Tax Act, 1950, on the assessable sale proceeds of which sales tax at the rate of Rs. 3-2-0 per cent. shall be payable, showing the nature of articles on which the tax is payable."S. No. Name of article Stage of sale in Madhya Bharat at which the tax is payable.9........ goods prepared from any metal other than gold and silver ...............Sale by importer or producer6. Learned counsel for the State contends that the expression "iron and steel" means iron and steel in the original condition and not iron and steel in the shape of bars, flats and plates. In our view, this contention is not sound. A comparison of the said two Notification brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel: while the former is exempted from tax, the latter is taxed. Therefore, iron and steel used as raw material for manufacturing other goods are exempted from taxation. So long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased by the respondent was merely re-rolled into bars, flats and plates. They were processed for convenience of sale. The raw materials were only re-rolled to give them attractive and acceptable forms. They did not in the process lose their character as iron and steel. The dealer sold "iron and steel" in the shape of bars, flats and plates and the customer purchased "iron and steel" in that shape. We, therefore, hold that the bars, flats and plates sold by the assessee are iron and steel exempted under the Notification. The conclusion arrived at by the High Court is correct.7
### Response:
0
### Explanation:
6. Learned counsel for the State contends that the expression "iron and steel" means iron and steel in the original condition and not iron and steel in the shape of bars, flats and plates.In our view, this contention is not sound. A comparison of the said two Notification brings out the distinction between raw materials of iron and steel and the goods prepared from iron and steel: while the former is exempted from tax, the latter is taxed. Therefore, iron and steel used as raw material for manufacturing other goods are exempted from taxation. So long as iron and steel continue to be raw materials, they enjoy the exemption. Scrap iron purchased by the respondent was merely re-rolled into bars, flats and plates. They were processed for convenience of sale. The raw materials were only re-rolled to give them attractive and acceptable forms. They did not in the process lose their character as iron and steel. The dealer sold "iron and steel" in the shape of bars, flats and plates and the customer purchased "iron and steel" in that shape. We, therefore, hold that the bars, flats and plates sold by the assessee are iron and steel exempted under the Notification. The conclusion arrived at by the High Court is correct.
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Commissioner of Central Excise, Jalandhar Vs. Royal Enterprises | the adjudicating authority as well as the Tribunal that the department could not invoke the extended period of limitation as all facts were already to the knowledge of the department. On this the Tribunal in Para 6 has recorded the following finding: 6. It is clear that details of the Appellants fabrication work for Railway Coach Factory including supply of raw material by the Coach Factory were known to the Revenue authorities for quite some time. As early as 1992, the Appellants contracts, sales invoices etc. relating to his work for Railway Coach Factory had been summoned and obtained by the Revenue authorities. All these contracts indicated issue of raw materials by the Railway Coach Factory to the Appellant upon the Appellant executing bank guarantee. The orders for fabricating bottom side wall sheet was also on the same basis. Order number were being indicated in the invoices under which the goods were cleared. It would appear that a mere look at the rates for fabrication should have alerted the excise authorities to the fact that such a low rate (Rs. 590/- per set etc.) could not include the cost of raw materials. Be that as it may, this is not a case where a charge of suppression of facts with intent to evade payment of duty could reasonably be made. If reasonable care had been taken by the Revenue authorities to scrutinize the contracts and other documents produced, they would have known in time that fabrication charges alone was being treated as assessable value. May be, Revenue was also of the opinion that fabrication charges alone was liable to duty. In either case, fault is not of the Appellant. Relevant facts had been disclosed. 2. This Court, in the case of Collector of Central Excise v. Chemphar Drugs & Liniments 1989 (40) E.L.T. 276 (S.C.) has held that in order to make the payment for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to Section 11A of the Act it has to be established that the duty of excise has not been paid or levied or short-paid or short-levied or erroneously refunded by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder, with intent to evade payment of duty. It was observed: ..........Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before (sic beyond) the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The Assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible, and also noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the Respondent when the declaration was filed by the Respondent. The Respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the Respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence. 9. In that view of the matter and in view of the requirements of Section 11A of the Act, the claim had to be limited for a period of six months as the Tribunal did. We are, therefore, of the opinion that the Tribunal was right in its conclusion. The appeal therefore fails and is accordingly dismissed. 3. Similarly, in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay 1995 (78) E.L.T. 401 (S.C.), it was held that mere omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties it cannot be held that there was suppression of facts. It was observed in Para 4 as follows: 4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. | 0[ds]3. Similarly, in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay 1995 (78) E.L.T. 401 (S.C.), it was held that mere omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties it cannot be held that there was suppression of facts. It was observed in Para 4 as follows:4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression. | 0 | 1,180 | 323 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
the adjudicating authority as well as the Tribunal that the department could not invoke the extended period of limitation as all facts were already to the knowledge of the department. On this the Tribunal in Para 6 has recorded the following finding: 6. It is clear that details of the Appellants fabrication work for Railway Coach Factory including supply of raw material by the Coach Factory were known to the Revenue authorities for quite some time. As early as 1992, the Appellants contracts, sales invoices etc. relating to his work for Railway Coach Factory had been summoned and obtained by the Revenue authorities. All these contracts indicated issue of raw materials by the Railway Coach Factory to the Appellant upon the Appellant executing bank guarantee. The orders for fabricating bottom side wall sheet was also on the same basis. Order number were being indicated in the invoices under which the goods were cleared. It would appear that a mere look at the rates for fabrication should have alerted the excise authorities to the fact that such a low rate (Rs. 590/- per set etc.) could not include the cost of raw materials. Be that as it may, this is not a case where a charge of suppression of facts with intent to evade payment of duty could reasonably be made. If reasonable care had been taken by the Revenue authorities to scrutinize the contracts and other documents produced, they would have known in time that fabrication charges alone was being treated as assessable value. May be, Revenue was also of the opinion that fabrication charges alone was liable to duty. In either case, fault is not of the Appellant. Relevant facts had been disclosed. 2. This Court, in the case of Collector of Central Excise v. Chemphar Drugs & Liniments 1989 (40) E.L.T. 276 (S.C.) has held that in order to make the payment for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to Section 11A of the Act it has to be established that the duty of excise has not been paid or levied or short-paid or short-levied or erroneously refunded by reasons of either fraud or collusion or willful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder, with intent to evade payment of duty. It was observed: ..........Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before (sic beyond) the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The Assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible, and also noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the Respondent when the declaration was filed by the Respondent. The Respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the Respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence. 9. In that view of the matter and in view of the requirements of Section 11A of the Act, the claim had to be limited for a period of six months as the Tribunal did. We are, therefore, of the opinion that the Tribunal was right in its conclusion. The appeal therefore fails and is accordingly dismissed. 3. Similarly, in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay 1995 (78) E.L.T. 401 (S.C.), it was held that mere omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties it cannot be held that there was suppression of facts. It was observed in Para 4 as follows: 4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.
### Response:
0
### Explanation:
3. Similarly, in the case of Pushpam Pharmaceuticals Company v. Collector of Central Excise, Bombay 1995 (78) E.L.T. 401 (S.C.), it was held that mere omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties it cannot be held that there was suppression of facts. It was observed in Para 4 as follows:4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits the authority to exercise this power within five years from the relevant date in the circumstances mentioned in the proviso, one of it being suppression of facts. The meaning of the word both in law and even otherwise is well known. In normal understanding it is not different that what is explained in various dictionaries unless of course the context in which it has been used indicates otherwise. A perusal of the proviso indicates that it has been used in company of such strong words as fraud, collusion or willful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to escape from payment of duty. Where facts are known to both the parties the omission by one to do what he might have done and not that he must have done, does not render it suppression.
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Collector of Central Excise, Baroda Vs. Ojas Corporation | bags and other packing containers, mentioned in I tem No.17(4) must have been manufactured out of paper or paper board. But if just to strengthen the packing container, a small piece of ply wood or a steel ring is introduced, whether such packing containers shall be out of the purview of Item No. 17(4)? The Tribunal has referred to the details of the fibre drum by saying that the cylinderical portion of the fibre drum is made of paper and its bottom and top are of ply wood, reinforced with mild steel ring and clamp. The Tribunal has also mentioned in the impugned order that according to the appellant, in terms of the percentage content, paper constitutes 51.18% of the finished product, the plywood content is about 23.57% and rings and clamps about 19.1/2%. Even before this Court, there was no dispute, that the percentage of the paper content is 51.18% only and the remaining 48.82% consists of plywood, rings and clamps etc. In this background, can it be said that the fibre drum which is a container is made of "paper and paper board, -ill sorts (including paste-board, mill board, straw board, cardboard and corrugated board), -and articles thereof........for being covered by tariff Item No. 17. Tariff Item No. 17 read as a whole alongwith different sub-clauses makes it abundantly clear that to be included in the said tariff Item, the product must be of paper, paper board and all sorts. How a product can be covered by the said tariff Item No.17 including 17(4) if the paper or paper board constitutes only 51.18% and the rest 48.82% consists of plywood content, rings and clamps etc, ? 6. On behalf of the appellant, it was pointed out that internationally, composite paper board drums and containers even wh en they are fitted with reinforcing circular bands of other materials, other than paper, e.g. textile backings, wooden supports, string handles, metal or plastic corners , they are classified under heading 48.16 under Customs Co-operati on Nomenclature (CCCN - Brussels), which is equivalent to Tariff Item No. 17(4). 7. The Glossary of Terms relating to Paper and Flexible Packaging issued by Indian Standards Institution (IS: 7186 -1973) defines Fibre board Drum as "a shipping package with cylindrical sidewall composed of paper or board having disc ends of similar or different materials, such as steel, wood etc." Thus, in spite of plywood discs at the top and the bottom, the fibre drum is to be treated as a fibre boa rd drum, according to the Glossary of Terms relating to Paper and Flexible Packaging issued by the Indian Standards Institution. Whatever may be the classification by the customs Co-operation Nomenclature (CCCN - Brussels), but Tariff Item N o. 17, including 17(4) clearly specify that products covered by said Item No. 17 must be the product of paper, paper board and all sorts. 8. On behalf of the Revenue, reliance was placed on the judgment of this Court in the case of Geep Flas hlight Industries Ltd., v. Union of India, 1985 (2) ELT 3 (S.C.) where this Court had to consider Tariff Item No.15A(2) which read as under: "Articles made of plastics, all sons, in- cluding tubes, rods, sheets, foils, sticks, other rectangular or profile shape whether laminated or not, and whether rigid or flexible including lay flat tubings and polyinyl chlorides sheets...... In that connection, it was said: "The learned Counsel Contended that the plastic torch manufactured by the petitioner is nothing else but plastic tube made of plastic in which certain other devices are inserted so as to make it a torch but it nonetheless retains the character of a plastic tube. A mere reference to Tariff Item No. 15A(2) would show that the ar ticles therein described are plastic material in different shape and form and not articles made from such plastic material. There is a noticeable difference between plastic material in different shape and form such as tubes, rods, sheets etc. and articles made from such plastic material such as plastic torch. It would be doing violence to language if one were to include plastic torch in articles under Tariff Item No. 15A(2) on the ground that a plastic tube is used for manufacturing plastic torch. Articles such as tubes, rods, sheets, foils, sticks etc. of plastic material merely describe plastic material in different shape and form and each word used therein takes its colour from the word just preceding and just succeeding and the adjectival clause articles made of plastics. Articles made of plastic meaning article made wholly of commodity commercially known as plastics, and not articles made from plastics along with other materials. (emphasis supplied) 9. The Tribunal has placed reliance on the judgment in the case of M/s.Indian Textile Paper Tube Company Ltd. Madras v. Collector of Central Excise, Madurai 1984 (18) ELT 35, where it was said that Vim Containers and Defence Containers cannot be said to be articles of paper or paper board; they are composite containers made of paper, paper board and other metal components. The material components like lids and bottoms were made of tin plates and black plates and printed aluminium foils were added. Paper or paper board was one of the raw materials. It was classified under Item No.68 and not under Item No. 17(4), because it was held that they cannot be held to be articles of paper or paper board, in view of the lids and bottoms of such Vim Containers and Defence Containers having been made of tin plates and black plates with printed aluminium foils having been added. We are informed that a Special Leave Petition filed against the said judgment has been rejected by this Court. According to us, there is not much difference in the components of Fibre Drum from Vim Container and Defence Container. The Tribunal has rightly come to the conclusion that such fibre drums shall not be covered by Item No. 17(4) and they shall be covered by residuary Item No.68. | 0[ds]On a plain reading, boxes, cartons, bags and other packing containers manufactured from paper or paper board shall be covered under Item No. 17 because paper, paper boa rd and all sorts including paste board, mill board, corrugated board and articles thereof have been specified in clauses 1 to 4 of Item No. 17. It need not be pointed out that boxes, cartons, bags and other packing containers, mentioned in I tem No.17(4) must have been manufactured out of paper or paperTribunal has referred to the details of the fibre drum by saying that the cylinderical portion of the fibre drum is made of paper and its bottom and top are of ply wood, reinforced with mild steel ring and clamp. The Tribunal has also mentioned in the impugned order that according to the appellant, in terms of the percentage content, paper constitutes 51.18% of the finished product, the plywood content is about 23.57% and rings and clamps about 19.1/2%. Even before this Court, there was no dispute, that the percentage of the paper content is 51.18% only and the remaining 48.82% consists of plywood, rings and clamps etc. In this background, can it be said that the fibre drum which is a container is made of "paper and paper board, -ill sorts (including paste-board, mill board, straw board, cardboard and corrugated board), -and articles thereof........for being covered by tariff Item No. 17. Tariff Item No. 17 read as a whole alongwith different sub-clauses makes it abundantly clear that to be included in the said tariff Item, the product must be of paper, paper board and all sorts.The Glossary of Terms relating to Paper and Flexible Packaging issued by Indian Standards Institution (IS: 7186 -1973) defines Fibre board Drum as "a shipping package with cylindrical sidewall composed of paper or board having disc ends of similar or different materials, such as steel, wood etc." Thus, in spite of plywood discs at the top and the bottom, the fibre drum is to be treated as a fibre boa rd drum, according to the Glossary of Terms relating to Paper and Flexible Packaging issued by the Indian Standards Institution. Whatever may be the classification by the customs Co-operation Nomenclature (CCCN - Brussels), but Tariff Item N o. 17, including 17(4) clearly specify that products covered by said Item No. 17 must be the product of paper, paper board and all sorts.The Tribunal has placed reliance on the judgment in the case of M/s.Indian Textile Paper Tube Company Ltd. Madras v. Collector of Central Excise, Madurai 1984 (18) ELT 35, where it was said that Vim Containers and Defence Containers cannot be said to be articles of paper or paper board; they are composite containers made of paper, paper board and other metal components. The material components like lids and bottoms were made of tin plates and black plates and printed aluminium foils were added. Paper or paper board was one of the raw materials. It was classified under Item No.68 and not under Item No. 17(4), because it was held that they cannot be held to be articles of paper or paper board, in view of the lids and bottoms of such Vim Containers and Defence Containers having been made of tin plates and black plates with printed aluminium foils having been added. We are informed that a Special Leave Petition filed against the said judgment has been rejected by this Court. According to us, there is not much difference in the components of Fibre Drum from Vim Container and Defence Container. The Tribunal has rightly come to the conclusion that such fibre drums shall not be covered by Item No. 17(4) and they shall be covered by residuary Item No.68. | 0 | 2,118 | 717 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
bags and other packing containers, mentioned in I tem No.17(4) must have been manufactured out of paper or paper board. But if just to strengthen the packing container, a small piece of ply wood or a steel ring is introduced, whether such packing containers shall be out of the purview of Item No. 17(4)? The Tribunal has referred to the details of the fibre drum by saying that the cylinderical portion of the fibre drum is made of paper and its bottom and top are of ply wood, reinforced with mild steel ring and clamp. The Tribunal has also mentioned in the impugned order that according to the appellant, in terms of the percentage content, paper constitutes 51.18% of the finished product, the plywood content is about 23.57% and rings and clamps about 19.1/2%. Even before this Court, there was no dispute, that the percentage of the paper content is 51.18% only and the remaining 48.82% consists of plywood, rings and clamps etc. In this background, can it be said that the fibre drum which is a container is made of "paper and paper board, -ill sorts (including paste-board, mill board, straw board, cardboard and corrugated board), -and articles thereof........for being covered by tariff Item No. 17. Tariff Item No. 17 read as a whole alongwith different sub-clauses makes it abundantly clear that to be included in the said tariff Item, the product must be of paper, paper board and all sorts. How a product can be covered by the said tariff Item No.17 including 17(4) if the paper or paper board constitutes only 51.18% and the rest 48.82% consists of plywood content, rings and clamps etc, ? 6. On behalf of the appellant, it was pointed out that internationally, composite paper board drums and containers even wh en they are fitted with reinforcing circular bands of other materials, other than paper, e.g. textile backings, wooden supports, string handles, metal or plastic corners , they are classified under heading 48.16 under Customs Co-operati on Nomenclature (CCCN - Brussels), which is equivalent to Tariff Item No. 17(4). 7. The Glossary of Terms relating to Paper and Flexible Packaging issued by Indian Standards Institution (IS: 7186 -1973) defines Fibre board Drum as "a shipping package with cylindrical sidewall composed of paper or board having disc ends of similar or different materials, such as steel, wood etc." Thus, in spite of plywood discs at the top and the bottom, the fibre drum is to be treated as a fibre boa rd drum, according to the Glossary of Terms relating to Paper and Flexible Packaging issued by the Indian Standards Institution. Whatever may be the classification by the customs Co-operation Nomenclature (CCCN - Brussels), but Tariff Item N o. 17, including 17(4) clearly specify that products covered by said Item No. 17 must be the product of paper, paper board and all sorts. 8. On behalf of the Revenue, reliance was placed on the judgment of this Court in the case of Geep Flas hlight Industries Ltd., v. Union of India, 1985 (2) ELT 3 (S.C.) where this Court had to consider Tariff Item No.15A(2) which read as under: "Articles made of plastics, all sons, in- cluding tubes, rods, sheets, foils, sticks, other rectangular or profile shape whether laminated or not, and whether rigid or flexible including lay flat tubings and polyinyl chlorides sheets...... In that connection, it was said: "The learned Counsel Contended that the plastic torch manufactured by the petitioner is nothing else but plastic tube made of plastic in which certain other devices are inserted so as to make it a torch but it nonetheless retains the character of a plastic tube. A mere reference to Tariff Item No. 15A(2) would show that the ar ticles therein described are plastic material in different shape and form and not articles made from such plastic material. There is a noticeable difference between plastic material in different shape and form such as tubes, rods, sheets etc. and articles made from such plastic material such as plastic torch. It would be doing violence to language if one were to include plastic torch in articles under Tariff Item No. 15A(2) on the ground that a plastic tube is used for manufacturing plastic torch. Articles such as tubes, rods, sheets, foils, sticks etc. of plastic material merely describe plastic material in different shape and form and each word used therein takes its colour from the word just preceding and just succeeding and the adjectival clause articles made of plastics. Articles made of plastic meaning article made wholly of commodity commercially known as plastics, and not articles made from plastics along with other materials. (emphasis supplied) 9. The Tribunal has placed reliance on the judgment in the case of M/s.Indian Textile Paper Tube Company Ltd. Madras v. Collector of Central Excise, Madurai 1984 (18) ELT 35, where it was said that Vim Containers and Defence Containers cannot be said to be articles of paper or paper board; they are composite containers made of paper, paper board and other metal components. The material components like lids and bottoms were made of tin plates and black plates and printed aluminium foils were added. Paper or paper board was one of the raw materials. It was classified under Item No.68 and not under Item No. 17(4), because it was held that they cannot be held to be articles of paper or paper board, in view of the lids and bottoms of such Vim Containers and Defence Containers having been made of tin plates and black plates with printed aluminium foils having been added. We are informed that a Special Leave Petition filed against the said judgment has been rejected by this Court. According to us, there is not much difference in the components of Fibre Drum from Vim Container and Defence Container. The Tribunal has rightly come to the conclusion that such fibre drums shall not be covered by Item No. 17(4) and they shall be covered by residuary Item No.68.
### Response:
0
### Explanation:
On a plain reading, boxes, cartons, bags and other packing containers manufactured from paper or paper board shall be covered under Item No. 17 because paper, paper boa rd and all sorts including paste board, mill board, corrugated board and articles thereof have been specified in clauses 1 to 4 of Item No. 17. It need not be pointed out that boxes, cartons, bags and other packing containers, mentioned in I tem No.17(4) must have been manufactured out of paper or paperTribunal has referred to the details of the fibre drum by saying that the cylinderical portion of the fibre drum is made of paper and its bottom and top are of ply wood, reinforced with mild steel ring and clamp. The Tribunal has also mentioned in the impugned order that according to the appellant, in terms of the percentage content, paper constitutes 51.18% of the finished product, the plywood content is about 23.57% and rings and clamps about 19.1/2%. Even before this Court, there was no dispute, that the percentage of the paper content is 51.18% only and the remaining 48.82% consists of plywood, rings and clamps etc. In this background, can it be said that the fibre drum which is a container is made of "paper and paper board, -ill sorts (including paste-board, mill board, straw board, cardboard and corrugated board), -and articles thereof........for being covered by tariff Item No. 17. Tariff Item No. 17 read as a whole alongwith different sub-clauses makes it abundantly clear that to be included in the said tariff Item, the product must be of paper, paper board and all sorts.The Glossary of Terms relating to Paper and Flexible Packaging issued by Indian Standards Institution (IS: 7186 -1973) defines Fibre board Drum as "a shipping package with cylindrical sidewall composed of paper or board having disc ends of similar or different materials, such as steel, wood etc." Thus, in spite of plywood discs at the top and the bottom, the fibre drum is to be treated as a fibre boa rd drum, according to the Glossary of Terms relating to Paper and Flexible Packaging issued by the Indian Standards Institution. Whatever may be the classification by the customs Co-operation Nomenclature (CCCN - Brussels), but Tariff Item N o. 17, including 17(4) clearly specify that products covered by said Item No. 17 must be the product of paper, paper board and all sorts.The Tribunal has placed reliance on the judgment in the case of M/s.Indian Textile Paper Tube Company Ltd. Madras v. Collector of Central Excise, Madurai 1984 (18) ELT 35, where it was said that Vim Containers and Defence Containers cannot be said to be articles of paper or paper board; they are composite containers made of paper, paper board and other metal components. The material components like lids and bottoms were made of tin plates and black plates and printed aluminium foils were added. Paper or paper board was one of the raw materials. It was classified under Item No.68 and not under Item No. 17(4), because it was held that they cannot be held to be articles of paper or paper board, in view of the lids and bottoms of such Vim Containers and Defence Containers having been made of tin plates and black plates with printed aluminium foils having been added. We are informed that a Special Leave Petition filed against the said judgment has been rejected by this Court. According to us, there is not much difference in the components of Fibre Drum from Vim Container and Defence Container. The Tribunal has rightly come to the conclusion that such fibre drums shall not be covered by Item No. 17(4) and they shall be covered by residuary Item No.68.
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State Of Rajasthan Vs. Mukanchand And Others | secured debts. Section 6 provides that after reduction of the secured debt in accordance with the provisions of S. 4, the decree shall, to the extent of the reduction so effected, be deemed for all purposes and on all occasions to have been duly satisfied. Clause (1) of S. 7 provides for the execution of the decree against the compensation and rehabilitation grant payable in respect of the jagir lands of the judgment-debtor. Clause (2) of S. 7, which has been struck down by the High Court, prohibits the recovery of the reduced amount with respect to jagir property from any property other than the compensation and rehabilitation grant payable to a jagirdar. The effect of this provision is that the other properties of the jagirdar, existing or which he may acquire hereafter, are immune from being proceeded against in execution or otherwise.9. We think that the High Court was right in holding that the impugned part of S. 2 (e) infringes Art. 14 of the Constitution. It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question. In our opinion, condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. The fact that the debts are owed to a government or local authority or other bodies mentioned in the impugned part of S. 2 (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non-scheduled bank is not excluded from the purview of the Act is not discernible.10. In this connection, Mr. Kapur has relied on the decision of this Court in Manna Lal v. Collector of Jhalawar (1961) 2 SCR 962 : (AIR 1961 SC 828 ). This case is clearly distinguishable because there is (sic) a law giving special facility for the recovery of dues to a bank owned by the Government was held not to offend Art. 14 of the Constitution. It is clear that the Government can be legitimately put in a separate category for the purpose of laying down the procedure for the recovery of its dues. Mr. Kapur further relied on Nand Ram Chhotey Lal v. Kishori Raman Singh, AIR 1962 All 521 . The judgment of the High Court undoubtedly supports him, but, with respect, we are unable to agree with the ratio of the case. The High Court was concerned with the U. P. Zamindars Debt Reduction Act (U. P. Act XV of 1953), which is substantially similar to the impugned Act. The ratio of the High Court is :"It appears to us that the legislature had to make a distinction between debts due from the ex-zamindars to private individuals and the debts due to scheduled banks or to Government or semi-Government authorities. The obvious reason appears to be that the private money lenders were considered to be a bane to rural economy and perpetrating agricultural indebtedness. It was to save the cultivators from such unscrupulous money lenders that such laws had to be enacted the last in series being the Zamindars Debt Reduction Act."We consider there is no force in these observations. No such reason is apparent from the terms of the Act. Non-scheduled banks and all other private creditors cannot be said to be a bane to rural economy."11. The third case relied on by Mr. Kapur - Jamnalal Ramlal Kintee v. Kishandas and State of Hyderabad (S) AIR 1955 Hyd 194 does not contain any discussion. The High Court supported the exclusion on the ground that "exclusion of certain class of debts under S. 3 of the impugned Act also is not without substantial justification for public demands do not stand in the same position as ordinary demands". Apart from the fact that all the exempted categories are not public demands, the High Court does not seem to have considered whether the differentia had any rational relationship sought to be achieved by the Act.12. In conclusion, agreeing with the High Court, we hold that no reasonable classification is disclosed for the purpose of sustaining the impugned part of S. 2 (e).13. Now, coming to the question of the validity of S. 7 (2) we consider that this sub-section is valid as it imposes reasonable restrictions, in the interests of general public, on the rights of a secured creditor. A secured creditor when he advanced money on the security of jagir property, primarily looked to that property for the realisation of his dues. Further, this sub-section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non-jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors. Accordingly, we hold that S. 7 (2) imposes reasonable restrictions in the interest of general public.14. | 1[ds]We think that the High Court was right in holding that the impugned part of S. 2 (e) infringes Art. 14 of the Constitution. It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question. In our opinion, condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. The fact that the debts are owed to a government or local authority or other bodies mentioned in the impugned part of S. 2 (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non-scheduled bank is not excluded from the purview of the Act is notHigh Court supported the exclusion on the ground that "exclusion of certain class of debts under S. 3 of the impugned Act also is not without substantial justification for public demands do not stand in the same position as ordinary demands". Apart from the fact that all the exempted categories are not public demands, the High Court does not seem to have considered whether the differentia had any rational relationship sought to be achieved by the Act.In conclusion, agreeing with the High Court, we hold that no reasonable classification is disclosed for the purpose of sustaining the impugned part of S. 2 (e).Now, coming to the question of the validity of S. 7 (2) we consider that this sub-section is valid as it imposes reasonable restrictions, in the interests of general public, on the rights of a secured creditor. A secured creditor when he advanced money on the security of jagir property, primarily looked to that property for the realisation of his dues. Further, this sub-section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non-jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors. Accordingly, we hold that S. 7 (2) imposes reasonable restrictions in the interest of general public. | 1 | 2,924 | 585 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
secured debts. Section 6 provides that after reduction of the secured debt in accordance with the provisions of S. 4, the decree shall, to the extent of the reduction so effected, be deemed for all purposes and on all occasions to have been duly satisfied. Clause (1) of S. 7 provides for the execution of the decree against the compensation and rehabilitation grant payable in respect of the jagir lands of the judgment-debtor. Clause (2) of S. 7, which has been struck down by the High Court, prohibits the recovery of the reduced amount with respect to jagir property from any property other than the compensation and rehabilitation grant payable to a jagirdar. The effect of this provision is that the other properties of the jagirdar, existing or which he may acquire hereafter, are immune from being proceeded against in execution or otherwise.9. We think that the High Court was right in holding that the impugned part of S. 2 (e) infringes Art. 14 of the Constitution. It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question. In our opinion, condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. The fact that the debts are owed to a government or local authority or other bodies mentioned in the impugned part of S. 2 (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non-scheduled bank is not excluded from the purview of the Act is not discernible.10. In this connection, Mr. Kapur has relied on the decision of this Court in Manna Lal v. Collector of Jhalawar (1961) 2 SCR 962 : (AIR 1961 SC 828 ). This case is clearly distinguishable because there is (sic) a law giving special facility for the recovery of dues to a bank owned by the Government was held not to offend Art. 14 of the Constitution. It is clear that the Government can be legitimately put in a separate category for the purpose of laying down the procedure for the recovery of its dues. Mr. Kapur further relied on Nand Ram Chhotey Lal v. Kishori Raman Singh, AIR 1962 All 521 . The judgment of the High Court undoubtedly supports him, but, with respect, we are unable to agree with the ratio of the case. The High Court was concerned with the U. P. Zamindars Debt Reduction Act (U. P. Act XV of 1953), which is substantially similar to the impugned Act. The ratio of the High Court is :"It appears to us that the legislature had to make a distinction between debts due from the ex-zamindars to private individuals and the debts due to scheduled banks or to Government or semi-Government authorities. The obvious reason appears to be that the private money lenders were considered to be a bane to rural economy and perpetrating agricultural indebtedness. It was to save the cultivators from such unscrupulous money lenders that such laws had to be enacted the last in series being the Zamindars Debt Reduction Act."We consider there is no force in these observations. No such reason is apparent from the terms of the Act. Non-scheduled banks and all other private creditors cannot be said to be a bane to rural economy."11. The third case relied on by Mr. Kapur - Jamnalal Ramlal Kintee v. Kishandas and State of Hyderabad (S) AIR 1955 Hyd 194 does not contain any discussion. The High Court supported the exclusion on the ground that "exclusion of certain class of debts under S. 3 of the impugned Act also is not without substantial justification for public demands do not stand in the same position as ordinary demands". Apart from the fact that all the exempted categories are not public demands, the High Court does not seem to have considered whether the differentia had any rational relationship sought to be achieved by the Act.12. In conclusion, agreeing with the High Court, we hold that no reasonable classification is disclosed for the purpose of sustaining the impugned part of S. 2 (e).13. Now, coming to the question of the validity of S. 7 (2) we consider that this sub-section is valid as it imposes reasonable restrictions, in the interests of general public, on the rights of a secured creditor. A secured creditor when he advanced money on the security of jagir property, primarily looked to that property for the realisation of his dues. Further, this sub-section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non-jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors. Accordingly, we hold that S. 7 (2) imposes reasonable restrictions in the interest of general public.14.
### Response:
1
### Explanation:
We think that the High Court was right in holding that the impugned part of S. 2 (e) infringes Art. 14 of the Constitution. It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others left out of the group and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question. In our opinion, condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The Jagirdars capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. The fact that the debts are owed to a government or local authority or other bodies mentioned in the impugned part of S. 2 (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non-scheduled bank is not excluded from the purview of the Act is notHigh Court supported the exclusion on the ground that "exclusion of certain class of debts under S. 3 of the impugned Act also is not without substantial justification for public demands do not stand in the same position as ordinary demands". Apart from the fact that all the exempted categories are not public demands, the High Court does not seem to have considered whether the differentia had any rational relationship sought to be achieved by the Act.In conclusion, agreeing with the High Court, we hold that no reasonable classification is disclosed for the purpose of sustaining the impugned part of S. 2 (e).Now, coming to the question of the validity of S. 7 (2) we consider that this sub-section is valid as it imposes reasonable restrictions, in the interests of general public, on the rights of a secured creditor. A secured creditor when he advanced money on the security of jagir property, primarily looked to that property for the realisation of his dues. Further, this sub-section has been designed with the object of rehabilitating a jagirdar whose jagir properties have been taken over by the State for a public purpose at a low valuation. If this provision was not made, the jagirdar would find it difficult to start life afresh and look to other avocations, for not only his existing non-jagir property but his future income and acquired properties would be liable to attachment and sale for the purpose of satisfying the demands of such secured creditors. Accordingly, we hold that S. 7 (2) imposes reasonable restrictions in the interest of general public.
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M/s. Daffadar Bhagat Singh & Sons Vs. The Income Tax Officer, A-Ward, Ferozepure | In such cases though the latter are not eo nomine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative. It is not necessary to pursue the matter further. We would, therefore, hold that, the expression "any person" in the setting in which it appears must be confined to a person intimately connected in the aforesaid sense with the assessments of the year under appeal". The argument of Mr. Veda Vyasa for the appellant has been two-fold. He contends firstly that the finding or direction which the Appellate Assistant Commissioner gave in the present case in his order dated August 11, 1959 that the business belonged to the partnership and not the Hindu Undivided Family and the further direction which was given by him that the Income tax Officer should assess the income in the hands of the partnership firm were not necessary for the disposal of the appeal According to Mr. Veda Vyasa the crux of the matter was that the Appellate Assistant Commissioner gave a decision that the income was to be excluded from the assessment of the Hindu Undivided Family thereby reversing the decision of the Income tax Officer that it was assessable in the hands of the family. It is contended that, in these circumstances, the direction to the Income tax Officer that be should assess the income in the hands of the firm was neither necessary nor called for and therefore the law laid down in Murlidhar Bhagwan Dass case, 1964-52 ITR 335 = (AIR 1965 SC 342 ) was clearly applicable. In this connection it may be mentioned that according to Mr. Veda Vyasa two returns had been filed by the appellant for the assessment year 1952-53, one relating to the Hindu Undivided Family and the other, of the partnership firm. But the statements contained in the writ petition of the appellant do not support this submission. In para 3 of that petition it is stated that the firm and all the three partners filed their returns of profit and loss on March 31, 1953 with the Income tax Officer and also made in applicable under S. 26A of the Act for registration of the firm. It is true that in the assessment order of the Income tax Officer the status of the assessee is shown to be Hindu Undivided Family but that has been apparently shown in the order because the Income tax Officer gave an express decision about the status of the assessee and held that it constituted a Hindu Undivided Family.It, however, stands proved that the assessee filed the return claiming the status of a firm together with an application under S. 26A or its registration which was disallowed by the Income tax Officer but was allowed by the Appellate Assistant Commissioner. The substantial issue before the Appellate Assistant Commissioner was one of status of the assessee and he held that it was a partner firm and not a Hindu Undivided Family. This finding was necessary for deciding the appeal before the Appellate Assistant Commissioner and it is not possible to understand how it can be regarded as having been made only incidentally. Once a finding is given which was necessary for the disposal of the appeal the second proviso to S. 34(3) of the Act would be attracted and the bar of limitation would be lifted. In N. K. Sivalingam Chettiar v. Commissioner of Income-tax, Madras, Civil Appeal No. 1985 of 1966 D/- 27-3-1967 (SC) this Court after referring to the relevant observations in Murlidhar Bhagwandas case1964-52 ITR 335 =(AIR 1965 SC 342 ) reiterated that a finding within the second proviso to Section 34 (3) must be necessary for giving relief in respect of the assessment of the year in question. It was further observed that this Court in an earlier case lent approval to the observations of the Allahabad High Court in Hazari Lal v. Income tax Officer, Kanpur, 1960-39 ITR 265 = (AIR 1960 All 97 ) "that the word "finding" only covers "material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the "final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing." The first submission of Mr. Veda Vyasa therefore cannot be accepted.2. The second limb of the argument of Mr. Veda Vyasa is based on the premise that the appellant which was a partnership firm was a distinct legal entity and was thus a total stranger to the Hindu Undivided Family the assessment of which came up for consideration before the Appellate Assistant Commissioner in which the orders already referred were made by him. It is suggested that the appellant could not fall within the meaning of the expression "any person" in the second proviso to Section 34 (3) of the Act.If the observations made in Murlidhar Bhagwan Dass case 1964-52 IRT 335=(AIR 1965 SC 342 ) are borne in mind it is again not possible to understand how the appellant can be taken out of the category of person or persons intimately connected with the assessment of the year under appeal. The returns, as stated before, were originally filed by the partnership firm comprising Bhagat Singh and his two sons. The question was of the assessment of the income of the business of the firm. The Income tax Officer treated the father and the sons as Hindu Undivided Family. On appeal, however. the Assistant Commissioner accepted their contention that they formed a partnership firm. It is difficult, in these circumstance, to agree that the appellant was a total stranger to the assessment which was under appeal before the Appellate Assistant Commissioner and had no intimate connection with the person whose assessment was made by the Income tax Officer and was set aside in appeal by the Appellate Assistant Commissioner. | 0[ds]In this connection it may be mentioned that according to Mr. Veda Vyasa two returns had been filed by the appellant for the assessment yearone relating to the Hindu Undivided Family and the other, of the partnership firm. But the statements contained in the writ petition of the appellant do not support this submission. In para 3 of that petition it is stated that the firm and all the three partners filed their returns of profit and loss on March 31, 1953 with the Income tax Officer and also made in applicable under S. 26A of the Act for registration of the firm. It is true that in the assessment order of the Income tax Officer the status of the assessee is shown to be Hindu Undivided Family but that has been apparently shown in the order because the Income tax Officer gave an express decision about the status of the assessee and held that it constituted a Hindu Undivided Family.It, however, stands proved that the assessee filed the return claiming the status of a firm together with an application under S. 26A or its registration which was disallowed by the Income tax Officer but was allowed by the Appellate Assistant Commissioner. The substantial issue before the Appellate Assistant Commissioner was one of status of the assessee and he held that it was a partner firm and not a Hindu Undivided Family. This finding was necessary for deciding the appeal before the Appellate Assistant Commissioner and it is not possible to understand how it can be regarded as having been made only incidentally. Once a finding is given which was necessary for the disposal of the appeal the second proviso to S. 34(3) of the Act would be attracted and the bar of limitation would bewas further observed that this Court in an earlier case lent approval to the observations of the Allahabad High Court in Hazari Lal v. Income tax Officer, Kanpur,ITR 265 = (AIR 1960 All 97 ) "that the word "finding" only covers "material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the "final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing." The first submission of Mr. Veda Vyasa therefore cannot bethe observations made in Murlidhar Bhagwan Dass caseIRT 335=(AIR 1965 SC 342 ) are borne in mind it is again not possible to understand how the appellant can be taken out of the category of person or persons intimately connected with the assessment of the year under appeal. The returns, as stated before, were originally filed by the partnership firm comprising Bhagat Singh and his two sons. The question was of the assessment of the income of the business of the firm. The Income tax Officer treated the father and the sons as Hindu Undivided Family. On appeal, however. the Assistant Commissioner accepted their contention that they formed a partnership firm. It is difficult, in these circumstance, to agree that the appellant was a total stranger to the assessment which was under appeal before the Appellate Assistant Commissioner and had no intimate connection with the person whose assessment was made by the Income tax Officer and was set aside in appeal by the Appellate Assistant Commissioner. | 0 | 2,076 | 612 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
In such cases though the latter are not eo nomine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative. It is not necessary to pursue the matter further. We would, therefore, hold that, the expression "any person" in the setting in which it appears must be confined to a person intimately connected in the aforesaid sense with the assessments of the year under appeal". The argument of Mr. Veda Vyasa for the appellant has been two-fold. He contends firstly that the finding or direction which the Appellate Assistant Commissioner gave in the present case in his order dated August 11, 1959 that the business belonged to the partnership and not the Hindu Undivided Family and the further direction which was given by him that the Income tax Officer should assess the income in the hands of the partnership firm were not necessary for the disposal of the appeal According to Mr. Veda Vyasa the crux of the matter was that the Appellate Assistant Commissioner gave a decision that the income was to be excluded from the assessment of the Hindu Undivided Family thereby reversing the decision of the Income tax Officer that it was assessable in the hands of the family. It is contended that, in these circumstances, the direction to the Income tax Officer that be should assess the income in the hands of the firm was neither necessary nor called for and therefore the law laid down in Murlidhar Bhagwan Dass case, 1964-52 ITR 335 = (AIR 1965 SC 342 ) was clearly applicable. In this connection it may be mentioned that according to Mr. Veda Vyasa two returns had been filed by the appellant for the assessment year 1952-53, one relating to the Hindu Undivided Family and the other, of the partnership firm. But the statements contained in the writ petition of the appellant do not support this submission. In para 3 of that petition it is stated that the firm and all the three partners filed their returns of profit and loss on March 31, 1953 with the Income tax Officer and also made in applicable under S. 26A of the Act for registration of the firm. It is true that in the assessment order of the Income tax Officer the status of the assessee is shown to be Hindu Undivided Family but that has been apparently shown in the order because the Income tax Officer gave an express decision about the status of the assessee and held that it constituted a Hindu Undivided Family.It, however, stands proved that the assessee filed the return claiming the status of a firm together with an application under S. 26A or its registration which was disallowed by the Income tax Officer but was allowed by the Appellate Assistant Commissioner. The substantial issue before the Appellate Assistant Commissioner was one of status of the assessee and he held that it was a partner firm and not a Hindu Undivided Family. This finding was necessary for deciding the appeal before the Appellate Assistant Commissioner and it is not possible to understand how it can be regarded as having been made only incidentally. Once a finding is given which was necessary for the disposal of the appeal the second proviso to S. 34(3) of the Act would be attracted and the bar of limitation would be lifted. In N. K. Sivalingam Chettiar v. Commissioner of Income-tax, Madras, Civil Appeal No. 1985 of 1966 D/- 27-3-1967 (SC) this Court after referring to the relevant observations in Murlidhar Bhagwandas case1964-52 ITR 335 =(AIR 1965 SC 342 ) reiterated that a finding within the second proviso to Section 34 (3) must be necessary for giving relief in respect of the assessment of the year in question. It was further observed that this Court in an earlier case lent approval to the observations of the Allahabad High Court in Hazari Lal v. Income tax Officer, Kanpur, 1960-39 ITR 265 = (AIR 1960 All 97 ) "that the word "finding" only covers "material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the "final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing." The first submission of Mr. Veda Vyasa therefore cannot be accepted.2. The second limb of the argument of Mr. Veda Vyasa is based on the premise that the appellant which was a partnership firm was a distinct legal entity and was thus a total stranger to the Hindu Undivided Family the assessment of which came up for consideration before the Appellate Assistant Commissioner in which the orders already referred were made by him. It is suggested that the appellant could not fall within the meaning of the expression "any person" in the second proviso to Section 34 (3) of the Act.If the observations made in Murlidhar Bhagwan Dass case 1964-52 IRT 335=(AIR 1965 SC 342 ) are borne in mind it is again not possible to understand how the appellant can be taken out of the category of person or persons intimately connected with the assessment of the year under appeal. The returns, as stated before, were originally filed by the partnership firm comprising Bhagat Singh and his two sons. The question was of the assessment of the income of the business of the firm. The Income tax Officer treated the father and the sons as Hindu Undivided Family. On appeal, however. the Assistant Commissioner accepted their contention that they formed a partnership firm. It is difficult, in these circumstance, to agree that the appellant was a total stranger to the assessment which was under appeal before the Appellate Assistant Commissioner and had no intimate connection with the person whose assessment was made by the Income tax Officer and was set aside in appeal by the Appellate Assistant Commissioner.
### Response:
0
### Explanation:
In this connection it may be mentioned that according to Mr. Veda Vyasa two returns had been filed by the appellant for the assessment yearone relating to the Hindu Undivided Family and the other, of the partnership firm. But the statements contained in the writ petition of the appellant do not support this submission. In para 3 of that petition it is stated that the firm and all the three partners filed their returns of profit and loss on March 31, 1953 with the Income tax Officer and also made in applicable under S. 26A of the Act for registration of the firm. It is true that in the assessment order of the Income tax Officer the status of the assessee is shown to be Hindu Undivided Family but that has been apparently shown in the order because the Income tax Officer gave an express decision about the status of the assessee and held that it constituted a Hindu Undivided Family.It, however, stands proved that the assessee filed the return claiming the status of a firm together with an application under S. 26A or its registration which was disallowed by the Income tax Officer but was allowed by the Appellate Assistant Commissioner. The substantial issue before the Appellate Assistant Commissioner was one of status of the assessee and he held that it was a partner firm and not a Hindu Undivided Family. This finding was necessary for deciding the appeal before the Appellate Assistant Commissioner and it is not possible to understand how it can be regarded as having been made only incidentally. Once a finding is given which was necessary for the disposal of the appeal the second proviso to S. 34(3) of the Act would be attracted and the bar of limitation would bewas further observed that this Court in an earlier case lent approval to the observations of the Allahabad High Court in Hazari Lal v. Income tax Officer, Kanpur,ITR 265 = (AIR 1960 All 97 ) "that the word "finding" only covers "material questions which arise in a particular case for decision by the authority hearing the case or the appeal which, being necessary for passing the "final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing." The first submission of Mr. Veda Vyasa therefore cannot bethe observations made in Murlidhar Bhagwan Dass caseIRT 335=(AIR 1965 SC 342 ) are borne in mind it is again not possible to understand how the appellant can be taken out of the category of person or persons intimately connected with the assessment of the year under appeal. The returns, as stated before, were originally filed by the partnership firm comprising Bhagat Singh and his two sons. The question was of the assessment of the income of the business of the firm. The Income tax Officer treated the father and the sons as Hindu Undivided Family. On appeal, however. the Assistant Commissioner accepted their contention that they formed a partnership firm. It is difficult, in these circumstance, to agree that the appellant was a total stranger to the assessment which was under appeal before the Appellate Assistant Commissioner and had no intimate connection with the person whose assessment was made by the Income tax Officer and was set aside in appeal by the Appellate Assistant Commissioner.
|
BHARATIYA JANATA PARTY WEST BENGAL Vs. THE STATE OF WEST BENGAL | for submission of nomination papers through email and to provide police protection to the candidates of the petitioner so as to enable them to collect and deposit the nomination forms for the purpose of contesting the panchayat elections already notified and also direct the respondents Nos. 1 to 3 to call for Central Para-Military Forces to maintain the law and order during the conduct of the panchayat elections in the State of West Bengal.2. We have heard Shri Mukul Rohatgi and Shri P.S.Patwalia the learned senior counsels appearing for the petitioner and Dr. Abhishek Manu Singhvi and Shri Amrendra Saran, learned senior counsel for the respondent Nos. 1 to 4 and Shri Tushar Mehta, learned Additional Solicitor General for respondent No. 7.3. Relying upon the newspaper reports which appeared in the Times of India, Kolkata edition dated 03.04.2018 and 04.04.2018, the Statesmen, Kolkata edition dated 04.04.2018 and the Telegraph e-paper preview,the learned senior counsels for the petitioner submitted that the petitioner’s candidates who want to contest election for the panchayat which is to be held in the State of West Bengal are not allowed to collect the nominations forms and to submit the same on account of violent resistance being put by the supporters of the ruling party.4. In support thereof, learned senior counsel for the petitioner placed before us a chart showing the nomination report cumulative upto 04.04.2018 in respect of Zila Parishad, Panchayat Samiti and Gram Panchayat.5. At this juncture, learned senior counsel relied upon a decision dated 28.06.2013 passed in SLP (C) Nos. 19928-19931 of 2013 titled West Bengal State Election Commission Vs. State of West Bengal & Ors. to impress upon the court that on earlier occasion also when the panchayat election in the State of West Bengal was to be held in the year 2013, then this Court exercised its powers and directed to re-schedule the elections.6. Learned Senior Counsel, therefore, submitted that the State Election Commission be directed to issue nomination papers on internet which may be downloaded, filled and submitted on internet by the candidates of the Petitioner as well as candidates of all other political parties including those persons who want to contest the election as independent candidates.7. The learned counsel for the respondent, however, submitted that the writ petition has neither been filed by an individual candidate nor any details have been given to show that any candidate has been prevented by anybody from obtaining and filing the nomination papers. Thus, in view of the decision of this Court in the case of Bharat Singh and Others vs. State of Haryana & Others - (1988) 4 SCC 534 , the writ petition itself is not maintainable.8. Further, relying upon the decision in Boddula Krishnaiah and Anr. vs. State Election Commissioner, A.P. & Ors. – (1996) 3 SCC 416 wherein it was held as under:-“….11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.”learned Senior Counsel for the respondent submitted that as the election process has been set in motion, this court should not pass any directions which may effect the elections. According to him, the State Election Commission is the appropriate authority to look into all these grievances and in fact on 05.04.2018, the West Bengal State Election Commission had issued a Notification No. 632-SCC/3E-30/2018 providing additional venue for filing nomination.9. Shri Tushar Mehta, learned counsel submitted that the respondent No. 7 can make arrangements for providing para military forces if the State Election Commission makes a request or any directions is issued by this Court.10. In reply, the learned senior counsel for the petitioner invited the attention of the court to paragraph 6(o) wherein a specific mention has been made where a person who went to file his nomination was severely beaten up and succumbed to the injuries.11. We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. In view of the decision of this Court, in the case of Bodula Krishnaiah (supra) wherein it was held that once the election process has been set in motion, the Court ought not to interfere, we are not inclined to interfere. However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notification dated05.04.2018 issued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nomination papers.12. From the perusal of the Scheme and the provisions of the West Bengal Panchayat Elections Act, 2003 (for brevity “the Act”), we find that the Act has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and election process.13. It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.14. | 1[ds]We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. In view of the decision of this Court, in the case of Bodula Krishnaiah (supra) wherein it was held that once the election process has been set in motion, the Court ought not to interfere, we are not inclined to interfere. However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notificationissued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nominationFrom the perusal of the Scheme and the provisions of the West Bengal Panchayat Elections Act, 2003 (for brevity, we find that the Act has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and electionIt is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process. | 1 | 1,168 | 302 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
for submission of nomination papers through email and to provide police protection to the candidates of the petitioner so as to enable them to collect and deposit the nomination forms for the purpose of contesting the panchayat elections already notified and also direct the respondents Nos. 1 to 3 to call for Central Para-Military Forces to maintain the law and order during the conduct of the panchayat elections in the State of West Bengal.2. We have heard Shri Mukul Rohatgi and Shri P.S.Patwalia the learned senior counsels appearing for the petitioner and Dr. Abhishek Manu Singhvi and Shri Amrendra Saran, learned senior counsel for the respondent Nos. 1 to 4 and Shri Tushar Mehta, learned Additional Solicitor General for respondent No. 7.3. Relying upon the newspaper reports which appeared in the Times of India, Kolkata edition dated 03.04.2018 and 04.04.2018, the Statesmen, Kolkata edition dated 04.04.2018 and the Telegraph e-paper preview,the learned senior counsels for the petitioner submitted that the petitioner’s candidates who want to contest election for the panchayat which is to be held in the State of West Bengal are not allowed to collect the nominations forms and to submit the same on account of violent resistance being put by the supporters of the ruling party.4. In support thereof, learned senior counsel for the petitioner placed before us a chart showing the nomination report cumulative upto 04.04.2018 in respect of Zila Parishad, Panchayat Samiti and Gram Panchayat.5. At this juncture, learned senior counsel relied upon a decision dated 28.06.2013 passed in SLP (C) Nos. 19928-19931 of 2013 titled West Bengal State Election Commission Vs. State of West Bengal & Ors. to impress upon the court that on earlier occasion also when the panchayat election in the State of West Bengal was to be held in the year 2013, then this Court exercised its powers and directed to re-schedule the elections.6. Learned Senior Counsel, therefore, submitted that the State Election Commission be directed to issue nomination papers on internet which may be downloaded, filled and submitted on internet by the candidates of the Petitioner as well as candidates of all other political parties including those persons who want to contest the election as independent candidates.7. The learned counsel for the respondent, however, submitted that the writ petition has neither been filed by an individual candidate nor any details have been given to show that any candidate has been prevented by anybody from obtaining and filing the nomination papers. Thus, in view of the decision of this Court in the case of Bharat Singh and Others vs. State of Haryana & Others - (1988) 4 SCC 534 , the writ petition itself is not maintainable.8. Further, relying upon the decision in Boddula Krishnaiah and Anr. vs. State Election Commissioner, A.P. & Ors. – (1996) 3 SCC 416 wherein it was held as under:-“….11. Thus, it would be clear that once an election process has been set in motion, though the High Court may entertain or may have already entertained a writ petition, it would not be justified in interfering with the election process giving direction to the election officer to stall the proceedings or to conduct the election process afresh, in particular when election has already been held in which the voters were allegedly prevented from exercising their franchise. As seen, that dispute is covered by an election dispute and remedy is thus available at law for redressal.”learned Senior Counsel for the respondent submitted that as the election process has been set in motion, this court should not pass any directions which may effect the elections. According to him, the State Election Commission is the appropriate authority to look into all these grievances and in fact on 05.04.2018, the West Bengal State Election Commission had issued a Notification No. 632-SCC/3E-30/2018 providing additional venue for filing nomination.9. Shri Tushar Mehta, learned counsel submitted that the respondent No. 7 can make arrangements for providing para military forces if the State Election Commission makes a request or any directions is issued by this Court.10. In reply, the learned senior counsel for the petitioner invited the attention of the court to paragraph 6(o) wherein a specific mention has been made where a person who went to file his nomination was severely beaten up and succumbed to the injuries.11. We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. In view of the decision of this Court, in the case of Bodula Krishnaiah (supra) wherein it was held that once the election process has been set in motion, the Court ought not to interfere, we are not inclined to interfere. However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notification dated05.04.2018 issued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nomination papers.12. From the perusal of the Scheme and the provisions of the West Bengal Panchayat Elections Act, 2003 (for brevity “the Act”), we find that the Act has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and election process.13. It is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.14.
### Response:
1
### Explanation:
We have given our thoughtful consideration to the submissions made by learned senior counsel for the parties. It is not in dispute that the West Bengal State Election Commission had issued notifications 02.04.2018 for holding panchayat elections in the State of West Bengal. Thus, the election process has been set into motion. In view of the decision of this Court, in the case of Bodula Krishnaiah (supra) wherein it was held that once the election process has been set in motion, the Court ought not to interfere, we are not inclined to interfere. However, the fact remains that according to the newspaper reports filed along with writ petition which has been referred to by the learned senior counsel for the petitioner incidence of violence has taken place when the candidates have gone to obtain and file their nomination papers. This also stands fortified with the notificationissued by the West Bengal State Election Commission where the State Election Commission had provided additional venue for filing the nominationFrom the perusal of the Scheme and the provisions of the West Bengal Panchayat Elections Act, 2003 (for brevity, we find that the Act has empowered the State Election Commissioner to pass appropriate orders in relation to any grievance, when made by any political party, or/and their individual candidate including any independent candidate with regard to any matter relating to and arising out of the election and electionIt is, therefore, essentially for the State Election Commissioner to consider the grievance once made by any party or/and candidate as the case may be and pass appropriate order/s keeping in view the nature of grievance made and relevant factors concerning the election and its process.
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MADHYA PRADESH HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD AND ANOTHER Vs. VIJAY BODANA AND OTHERS | the High Court has misconstrued and misdirected itself by relying upon the principle of promissory estoppel to hold that once the layout plan is prepared the same cannot be modified or changed. Change or modification is permitted under the Adhiniyam, provided the modification/change is in accordance with law i.e., as per the procedure, and satisfies the development norms and conditions of the development plans, zonal plans and town planning schemes. The modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. As long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. It is not the case of the first and second respondents that the procedure prescribed by the Adhiniyam was not followed or the parameters and norms prescribed by the Adhiniyam, the development plan or the zonal plan have been violated. In this background, we fail to understand how the modification in the layout plan which is in accordance with the Adhiniyam could have been struck down. 7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons. 8. The writ petition challenging the orders dated 12 th May 2008 and 24 th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. In the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. The impugned judgment notices that many of these bonafide owner- purchasers had completed the construction and some houses were in advanced stages of construction. While the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third- party rights by wrongly applying the principle of promissory estoppel and lis pendens. Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. In view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs. In Karnataka Power Corporation Ltd. and Another v. K. Thangappan and Another, (2006) 4 SCC 322 . This judgment was later cited in Yunus (Baboobhai) A. Hamid Padvekar v. State of Maharashtra and Others, (2009) 3 SCC 281 . this Court, after citing State of M.P. and Others v. Nandlal Jaiswal and Others, (1986) 4 SCC 566 had observed: 9. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 9. The Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. Stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Normally opposition and prejudice should not be presumed, unless there are grounds and reasons. Given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation. 10. During the course of hearing before us, the appellant-board had produced the original layout plan of Indira Nagar in which the land in question was shown as reserved for a major shopping complex. Adjacent to this land is the land earmarked for a primary school. There are areas earmarked for a park/garden. | 1[ds]6. It is an undisputed position that the State Government vide order dated 28 th September 2006, while partly allowing the revision petition, had directed the appellant-board to file a revision application before the Commissioner, Ujjain observing that the application moved by the appellant-board was not for a change in land use but for a change in the approved plan. The appellant- board as permitted had filed the revision application on which the Commissioner, Ujjain vide order dated 12 th May 2008 had asked the Deputy Director, T&CP to consider the request for modification of the layout plan. The Deputy Director, T&CP after examination vide order dated 24 th September 2008 had allowed the application approving the modified layout plan. Modifications, as noticed below, are in conformity and in accord with the parameters of the development control norms. The impugned judgment does not hold that the procedure prescribed by and under the Adhiniyam was violated. It has not been held, or even contended before us, that the modification of the layout plan as approved by the Deputy Director, T&CP pursuant to the order of the Commissioner, Ujjain, is contrary to the AdhiniyamIf the aforesaid aspects and the difference amongst the plans are kept in mind, it is lucid that the High Court has misconstrued and misdirected itself by relying upon the principle of promissory estoppel to hold that once the layout plan is prepared the same cannot be modified or changed. Change or modification is permitted under the Adhiniyam, provided the modification/change is in accordance with law i.e., as per the procedure, and satisfies the development norms and conditions of the development plans, zonal plans and town planning schemes. The modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. As long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. It is not the case of the first and second respondents that the procedure prescribed by the Adhiniyam was not followed or the parameters and norms prescribed by the Adhiniyam, the development plan or the zonal plan have been violated. In this background, we fail to understand how the modification in the layout plan which is in accordance with the Adhiniyam could have been struck down7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons8. The writ petition challenging the orders dated 12 th May 2008 and 24 th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. In the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. The impugned judgment notices that many of these bonafide owner- purchasers had completed the construction and some houses were in advanced stages of construction. While the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third- party rights by wrongly applying the principle of promissory estoppel and lis pendens. Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. In view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs9. The Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. Stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Normally opposition and prejudice should not be presumed, unless there are grounds and reasons. Given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation10. During the course of hearing before us, the appellant-board had produced the original layout plan of Indira Nagar in which the land in question was shown as reserved for a major shopping complex. Adjacent to this land is the land earmarked for a primary school. There are areas earmarked for a park/garden. | 1 | 3,024 | 1,049 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the High Court has misconstrued and misdirected itself by relying upon the principle of promissory estoppel to hold that once the layout plan is prepared the same cannot be modified or changed. Change or modification is permitted under the Adhiniyam, provided the modification/change is in accordance with law i.e., as per the procedure, and satisfies the development norms and conditions of the development plans, zonal plans and town planning schemes. The modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. As long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. It is not the case of the first and second respondents that the procedure prescribed by the Adhiniyam was not followed or the parameters and norms prescribed by the Adhiniyam, the development plan or the zonal plan have been violated. In this background, we fail to understand how the modification in the layout plan which is in accordance with the Adhiniyam could have been struck down. 7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons. 8. The writ petition challenging the orders dated 12 th May 2008 and 24 th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. In the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. The impugned judgment notices that many of these bonafide owner- purchasers had completed the construction and some houses were in advanced stages of construction. While the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third- party rights by wrongly applying the principle of promissory estoppel and lis pendens. Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. In view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs. In Karnataka Power Corporation Ltd. and Another v. K. Thangappan and Another, (2006) 4 SCC 322 . This judgment was later cited in Yunus (Baboobhai) A. Hamid Padvekar v. State of Maharashtra and Others, (2009) 3 SCC 281 . this Court, after citing State of M.P. and Others v. Nandlal Jaiswal and Others, (1986) 4 SCC 566 had observed: 9. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 9. The Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. Stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Normally opposition and prejudice should not be presumed, unless there are grounds and reasons. Given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation. 10. During the course of hearing before us, the appellant-board had produced the original layout plan of Indira Nagar in which the land in question was shown as reserved for a major shopping complex. Adjacent to this land is the land earmarked for a primary school. There are areas earmarked for a park/garden.
### Response:
1
### Explanation:
6. It is an undisputed position that the State Government vide order dated 28 th September 2006, while partly allowing the revision petition, had directed the appellant-board to file a revision application before the Commissioner, Ujjain observing that the application moved by the appellant-board was not for a change in land use but for a change in the approved plan. The appellant- board as permitted had filed the revision application on which the Commissioner, Ujjain vide order dated 12 th May 2008 had asked the Deputy Director, T&CP to consider the request for modification of the layout plan. The Deputy Director, T&CP after examination vide order dated 24 th September 2008 had allowed the application approving the modified layout plan. Modifications, as noticed below, are in conformity and in accord with the parameters of the development control norms. The impugned judgment does not hold that the procedure prescribed by and under the Adhiniyam was violated. It has not been held, or even contended before us, that the modification of the layout plan as approved by the Deputy Director, T&CP pursuant to the order of the Commissioner, Ujjain, is contrary to the AdhiniyamIf the aforesaid aspects and the difference amongst the plans are kept in mind, it is lucid that the High Court has misconstrued and misdirected itself by relying upon the principle of promissory estoppel to hold that once the layout plan is prepared the same cannot be modified or changed. Change or modification is permitted under the Adhiniyam, provided the modification/change is in accordance with law i.e., as per the procedure, and satisfies the development norms and conditions of the development plans, zonal plans and town planning schemes. The modification cannot be struck down when the law permits such change which is in terms of the statute and the plans that have the force of law. As long as the layout plans conform to the development control norms, the court would not substitute its own opinion as to what principle or policy would best serve greater public or private interest. It is not the case of the first and second respondents that the procedure prescribed by the Adhiniyam was not followed or the parameters and norms prescribed by the Adhiniyam, the development plan or the zonal plan have been violated. In this background, we fail to understand how the modification in the layout plan which is in accordance with the Adhiniyam could have been struck down7. On facts and justification for change of land use from commercial to residential, the impugned judgment ignores and glances over the earlier position that the area was earmarked for development and for construction of a shopping complex with 131 shops and not earmarked as an open area, park or playground. It notices the contention of the appellant-board that as per Rule 49 of the Madhya Pradesh Bhumi Vikas Rules, 1984, the area required to be earmarked for commercial purposes is 0.4 hectares whereas the area reserved in the original layout plan was 1.52 hectares. It is an undisputed position the land earmarked for the shopping complex had not found demand and takers despite efforts. The area was lying idle for more than 20 years, albeit more than 150 shops had already come up in the residential area. As per the appellant-board, construction of 131 shops would have caused congestion and would have adversely impacted the density of people living and using the area. We have highlighted these aspects and facts which are vastly distinct, for the courts normally frown upon, adversely comment and do strike down changes in the land use from residential to commercial or industrial use for obvious reasons8. The writ petition challenging the orders dated 12 th May 2008 and 24 th September 2008 was filed in 2015, nearly seven years after the approval for modification was granted. In the meanwhile, 42 out of 52 plots had been sold to third parties for consideration. The impugned judgment notices that many of these bonafide owner- purchasers had completed the construction and some houses were in advanced stages of construction. While the High Court has noticed and recorded these facts, it has failed to give due credence to the delay, the change in position and creation of third- party rights by wrongly applying the principle of promissory estoppel and lis pendens. Innocent plot owners on whom the brunt had fallen were not even heard before they were deprived and denied their rights by the adverse order. Considerable delay and laches of nearly seven years in approaching the court had resulted in change in position as third-party rights had been created. In view of delay and laches, the High Court should not have entertained the writ petition as 42 plot owners who had paid money would suffer adverse consequences for no fault of theirs9. The Ujjain Municipal Corporation was not made a party and had no opportunity to represent their stand on the change in the layout plan. If required and felt necessary, the High Court could have issued notice to the Ujjain Municipal Corporation and obtained their opinion. Stand of the State Government of Madhya Pradesh and the authorities under the Adhiniyam, supporting the modification, was on record. Normally opposition and prejudice should not be presumed, unless there are grounds and reasons. Given the fact that the change in the present case was from commercial to residential, there was no ground and reason that would suggest objection or opposition from the Ujjain Municipal Corporation10. During the course of hearing before us, the appellant-board had produced the original layout plan of Indira Nagar in which the land in question was shown as reserved for a major shopping complex. Adjacent to this land is the land earmarked for a primary school. There are areas earmarked for a park/garden.
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Subsets and Splits